Engaging with Forensic Engineer Expert, James Cohen

Engineering failures rarely start with a single crack or a single bad decision. They start with messy constraints, unclear scopes, missing documents, rushed timelines, and people making judgment calls under pressure. In this episode, we connect with James Cohen, an award-winning forensic engineer and seasoned expert witness with more than 40 years in structural engineering, failure analysis, testing, and code work. He shares the moments that pulled him into forensic engineering, plus the hard-earned habits that keep an expert credible when the stakes are high. 

We dig into what actually governs an engineering opinion in litigation: the contract, the scope of work, and the specific codes and standards that were invoked at the time. James explains why working across countries is often less about geography and more about figuring out which standards apply and what the factors of safety really mean. 

From there, we get highly practical on expert witness workflow: the key questions to ask on the first attorney call, how licensing and conflicts shape whether you should accept a matter, why budgets have become a bigger part of modern engagements, and when it makes sense to bring in MEP or cost estimating support. James also shares how he approaches depositions and trials, including simple demonstratives that help juries understand compression, torsion, and shear, and why report writing should be built for a lay reader without losing technical rigor. 

If you’re an attorney hiring experts or an engineer stepping into testimony, this one will sharpen your process. Subscribe for more conversations like this, share it with someone who works in litigation support, and leave a review with your biggest expert witness red flag or best first-call question.

Transcript

Welcome And Guest Background

Noah Bolmer 0:02

Welcome to Engaging Experts. I'm your host, Noah Baler. And today I'm excited to welcome James Cohen to the show. Now, Mr. Cohen is an award-winning forensic engineer with over 40 years of experience. He's a sought-after expert witness and holds a master's of science in concrete structures from Imperial College London. Mr. Cohen, thank you so much for joining me here today on Engaging Experts. Thank you very much. I'm pleased to be able to talk with you. All right. Well, let's jump into it. So you've worked as an engineer since at least the late 1970s. How did you first become involved in expert witnessing?

James Cohen 0:42

My very first job was at Grumman Aerospace, right after the lunar module. And I was assigned to do high what was then high-level finite element analysis with ANSIS, which at that time had just come out as a state-of-the-art package. For various reasons, I decided I didn't like working there. So then I joined Amon and Whitney in New York, who have been subsumed by other companies now. But they were known for the Throgsnak Bridge, the George Washington Bridge, uh, Arecibo Observatory, very high profile, high-level jobs. The first thing they did was stick me in their bridge group. And at the time, computers were not used much, and calculators were still just the basic multiply-divide stuff. There was no scientific calculators. And my role was to calculate moments of inertia for built-up bridge sections because it had to get done. And I spent one month doing that and went to the partner and said, I can't do this anymore. And so he stuck me in what was known as the special structures group. The first thing I did was hang off the Chrysler building at the very top. I don't remember exactly what my function was, and I knew I was unqualified for almost anything, but I was inspecting the masonry and brick. No, no idea why anymore. Just that I was on this swing scaffold, which would be condemned outright by OSHA today. Looking at the top of the from the top of the Chrysler building down to the sidewalk with nothing between me and the and the pavement.

Noah Bolmer 2:18

You were made of sterner stuff than me, my friend.

Codes And Contracts Across Countries

James Cohen 2:22

But it it was great. Then I got on to another job, um, MIT Kresge Auditorium. They had a simple job, which was to re-roof the shell. It's an eighth of an inch, eighth of a sphere. So if you cut an orange into eighths, that's the way the roof looks. And they had lead shingles, and the concern was that this the shell might buckle as they took the heavy lead off. No one knew how to do finite element analysis, just like at Grumman. I was the only one. So they just let me loose on that. While the work was going on, they discovered that water had been getting through the lead shingles and percolating through the shell, the concrete shell, which only had three supports, no redundancy. The water would collect at the base at one of the supports, and it rotted through the concrete, corroded the steel, and it was losing its support. No big deal at the time. Got the contractor to do a repair. They had to take away the bad concrete, put in the good concrete. I was just a junior engineer, I had no say in this. Unfortunately, it was also my first experience with how um eager contractors are to do a good job, particularly demolition contractors. So they didn't just take out the good, the bad concrete, they also took out the good concrete, thereby compromising one of the three supports. So you're now on a three-legged stool, someone's pulled out a leg, and the building started to slowly collapse and sag. Then it became an emergency. That was my first forensic job. I was tasked with finding out what were the internal stresses in the shell after having been uh in service. I'm not sure for how long, I think it was built in the 50s. I could be wrong, but it had at least 20 years of concrete creep movement, adjustment, shrinkage. And so with ANSIS, I created um a time-lapse analysis using ACI, American Concrete Institute creep equations, to try to find out what were the stresses all over after 20 years of service, then taking out the support, and then we were putting in struts and to find out what all those loads would be. Today, I would give my analysis zero credibility for accuracy. At the time, I thought it was absolutely top-notch, and I was terrific doing that. Anyway, that that job finished. Um, the special structures group got the jobs nobody else wanted to do. So I hung off the Chrysler building, I rode the top of the Rosevide Island tramway to do a cable replacement, and that was the first failure job, real failure job I had for construction. As they, I was on Rosewood Island, and as they moved the tram back to Manhattan Island, they were using walkie-talkies to communicate, and someone neglected to tell the contractor on Rosewood Island that there was a crane driving down, I guess, 2nd Avenue, tall crane, unrelated to their job, but the tram went right into it and it got impaled by the crane. So we managed to get back over to Manhattan. And my task, because I wasn't licensed, you know, I was just an observer, no official capacity, just taking photographs I was asked to do. So I started taking loads of pictures of this calamity. Um and while I was doing that, the contractor came over to me and said, if you take one more picture, I'm going to take that camera and wrap it around your neck. I was hooked. I mean, that was the job I wanted to do. Hanging off the Chrysler building, doing high-level analysis, looking at these failures. It was a it was a real blast. When I left, there was no forensic engineering at the time, I referred to it that way, but it was a dirty word. A forensic engineer in those days was reputed or had the reputation of being a hired gun and opinion to pay. So what we looked at was failure analysis. I moved to England, joined a company called Flint and Neil. They did nothing but testing and code writing. So I was developing test protocols for various things, code writing for wind, flood, working on suspension bridge analysis beyond what any code had. So I was getting exposed to that idea of working outside of a code to find out what ultimate values were for strength and performance, as well as learning exactly how codes get developed, their limitations, what those factors of safety really mean when you put them in there, and how it relates or not to when something fails. From Flint and Neil, I joined ARIP. I got my master's degree, then I joined ARP. And at that point, I was looking at failure analysis. That was what I was interested in. They did not, they put me into their advanced analysis group, which was doing nothing but testing high-level again, ANSIS, they were developing code for ANSIS then, um, testing protocols, code writing, failure analysis, and hands-on instrumentation. So one of the two of the jobs that I recall particularly was writing the protocols and developing the instrumentation to put onto a nuclear, a spent nuclear fuel flask container, which would stand being fired at a concrete wall at I think it was a thousand miles an hour, something to simulate a plane crash, then being burnt in aviation fuel, the purpose of which was to see if any gas leaked, because it was going to hold plutonium gas, if I recall. This is back in the 80s, so I don't think I'm revealing any secrets. And the problem was what could you do to instrument this so you would get readings that would not get destroyed during the process? There were no black boxes, they had to take readings somehow. The other job was actually instrumenting the Hong Kong Shanghai Bank, which had just been completed. Um, that was also an Arab design job, fantastic building. But what they wanted, and they were doing it mostly at their own cost, if I recall, was to find out after all the analysis, doing this high-level stuff with typhoons hitting the building, doing dynamic analysis, which at the time was state of the art, how did it really behave? Did it match the analysis? And they felt that they got permission from the Hong Kong Shanghai Bank to instrument it. So my task was to develop the strain gauging and data acquisition, go there, install it, and then they would start to take the measurements. That really is the beginning of doing nothing but what now I refer to as forensic engineering, which I don't think is necessarily failure analysis. It's analyzing for possibilities, consequences, or results of failure.

Noah Bolmer 10:01

How is it working across all of these different venues in countries? You know, I imagine that they all have completely different codes. And as you said, you've been involved in writing some of them or uh giving your knowledge to try and develop them. Um, to what extent do you have to prepare yourself when you know you're working in Shanghai on an engineering job out there? How well do you have to understand the Shanghai engineering codes compared to what you're accustomed to elsewhere?

Speaker 2 10:32

It's it's really not a problem because, like all the work I do now, the code that you work with is the code in the contract. In this case, we were looking at British codes, British standards, which by that time I was pretty familiar with. I had been in the country for three, four years. I had forgotten what pounds and kilos were. I was working only with Newtons and Pascals, mega Pascals. Now I've forgotten completely what those are, and I'm just back to PSI. But the the knowledge base I needed was already in the contract.

unknown 11:11

Sure.

Speaker 2 11:11

And so that is what I follow. When I do forensic engineering now, one of the key pieces of information I want, if it's available, because often these things are done unbelievably with a handshake, is what is the contract? What's the scope of work? What are the codes being invoked? Are they the correct codes to invoke? So now move working across countries wasn't an issue.

Noah Bolmer 11:33

When you're talking about these contracts, are you typically given one by the engaging attorney or the engaging side, or do you like to use your own contract and go from there?

How Expert Engagement Contracts Work

Speaker 2 11:45

Um, I think that's a two-part question. When I uh have a client and I'm going to be doing a job, I prepare a contract for them. I have a standard set of terms and conditions. Um, I have a front part, which very briefly provides the scope of work, um, the payment base. Terms and conditions cover the necessaries of insurance, liability, copyright, um, payment terms in terms of 30 days, 60 days, whatever. Um, and that's a boilerplate. When I'm looking at a forensic job which I'm engaged in, I look to my client to provide me with the contracts which have been used in the job which I'm now analyzing.

The First Call Vetting Process

Noah Bolmer 12:36

Absolutely. So tell me a little bit about these initial phone calls. Uh, you, you know, and and also tell me a little bit a bit about how they've changed throughout the decades. You know, you get a call from an engaging attorney to do this job. What are the sorts of questions? Because it's it's a two-way vetting process. You're vetting them and they're vetting you if you're the right expert, and you're you want to see if this is something that you actually want to do or are qualified to do. Tell me about some of the questions you like to ask and some of the questions that they typically ask you in an initial phone call for an engagement.

Speaker 2 13:07

The things that I want to know, there are three basic items. One is what is the work? And I try to get as much as I can from the attorney with regard to details, which they're not willing to give because it's still not a job and it's all confidential. But I need to know: is it within my area of knowledge? Um, often, very often, the attorney is not aware of what they need. They only can broadly describe the problem. And I need to figure out is this a mechanical, electrical, plumbing, geotechnical, structural, civil, architectural, um, OSHA, ADA compliant? What is what are the things that they are going to need? Is there anything there I can contribute? Or is it better just to give them a referral to someone else? That's one basic one. Another very basic one is where is the job located? Am I licensed there? If I'm not licensed there, how much time is there to get a license, assuming I'm not refused by the licensing board? And is that acceptable to the attorney? And the last thing I will want to know, and this usually comes in a second phone call, are the parties involved so I know I don't have a conflict of interest. Sure. Those are what I want to know. What the attorney usually wants to know is do I have the expertise that they need? And they often don't know what expertise they need. So that's a back and forth education process. My availability is key. Usually they don't have three years to do the job. Sometimes I get a job. Can I produce a report in 30 days? Occasionally two weeks. That's usually a no. Um, but there's the timeline that they need. Uh they want to know the rates. Am I pricing myself out or are they getting a bargain? What information might I need? Although that comes on later. There's a you know, set list of things that I think most experts would want to have. Almost always none of it's available, or very little. But they're the things that would be great. Uh site visit requirements. Can I go out? When can I go out? What else might they be asking? They also want to know about conflict of interest. Right. Those are the basic ones. Availability, expertise, conflict of interest. For me, it's licensing, scope, and uh conflict of interest.

Noah Bolmer 15:46

Have these calls changed in any significant way over the decades, or engagements these days different than engagements back in the 70s and 80s?

Speaker 2 15:56

In terms of the conversation that we've just had, the only real change is my knowledge that these are the things I need to know. Rather than finding out, I've become much more fluid in the questions, much more assertive in what I have to know before I say yes or no to a job. Uh, the biggest change outs that has happened is, and maybe it's because my rates have gone up, um, is that budget and budget estimates are something which is now a norm. I would say 10 years ago, I was almost never asked about how much it was going to cost. It was very rare. Or whatever it was, that was acceptable. Um, I mean, clearly, if somebody decided to take a client to the cleaners, there'd be a problem. But assuming that one is acting honorably and within a normal scope, they weren't concerned with how much it was going to be. Now, even if I just go to a site visit, I'm often asked, how much will that be? That's I'd say the biggest change that's happened.

Noah Bolmer 17:06

When you when you talk about things like site visits and travel, is that something that you bill for in a different way? Do you have travel rates?

Working With Other Experts

Speaker 2 17:14

I find that experts have their, it's each one seems to have their own favorite way of doing it. My particular approach is that if I'm spending my time devoted to a project, I bill for it. I don't really care what I'm doing. If I'm traveling on the site, twiddling my thumbs in a room waiting to get deposed, it's still devoted to that job. For travel, I do put in um a personal limit that if I'm doing nothing but traveling. So if I have to go to Florida or Texas, I simply won't bill more than eight hours. Gotcha. Even if it takes me, you know, for some reason, 20 hours to get there. Well, 20 hours are getting to two days. But if it's more than one working day, I'll only build the one working day. If, on the other hand, I'm expected to be at site at six in the morning, and I've got to get up at four or three and travel two hours to get there, then it goes from six to four, and then it takes me another two to three hours to come back. I build all that time. I other experts have other protocols that they follow.

Noah Bolmer 18:18

Absolutely. One of the things you had mentioned is kind of a litany of different trades that might be involved in various actions. Um, to what extent, if any, do you ever work with other experts that are part of the same engagement? Do you ever collaborate on pieces of a report or on a site visit or on are there other opportunities to collaborate with other experts during an action, or are you largely segregated?

Speaker 2 18:47

There are come to mind three different ways that happens. One, the client, who may be an attorney, but it could also be an insurance company, a contractor, an adjuster, engages experts on their own to do different things. Um, that's not unusual. Sometimes I'm provided with the information that those experts are producing. Sometimes we have a conversation, although that's much rarer. Um and that's down to the client how they want us to interact, if at all. One job I had an opposing expert, they just wanted to see which opinion they wanted. So they had two working on the same job for the same thing. Another method is that I engage expertise that I don't have as a subconsultant. Typically, that'll be mechanical electrical plumbing. I don't usually go beyond that except for cost estimating. Um, cost estimating is a fuzzy area. Yes, I do cost estimating. No, I'm not a cost estimator. So I am happy to be engaged to assess a cost estimate for reasonableness, but I would not want to be put forward as an expert in cost estimating. I leave that to the attorney, and so I'll then engage a cost estimator. And the third way is that there is a team which is put together and we all work collaboratively. It depends on the job, um, depends on the client.

Noah Bolmer 20:28

Absolutely. When you subcontract out to another trade, is that something you have to get approved through the end client or through the engaging attorney, or is that something that you can just do?

Truth New Facts And Changing Opinions

Speaker 2 20:40

I will get approval. Um, I've not ever tested if I can just do it. I want the clients to know who is working on it, what their fees are, how we'll interact, who takes responsibility for the opinion. Because sometimes if I just need outside expertise in a topic, just like having a drawing that I have to sign and seal, they are doing the work under my direction, and I assume their I assume the data and I form an opinion. On the other hand, if I need someone to provide an opinion, then that is what they will do. And we produce separate reports for the same job, but on different subject matter. So uh MEP comes to mind immediately because that's that's the most common one. Is that there are issues with the HVAC HVAC system, there's issues with the sewage. I don't do that at all. I would not even attempt to represent somebody else's opinion on that. So they provide their own report under under my direction to the extent that I'm responsible for payment and making sure. They get the work done on time, that they don't have a conflict of interest, that they are available, that they are licensed, just like I would have to do for myself. And I produce my report, which be is a separate standalone opinion. There is overlap. So if I'm looking at water damage to a structure and it's related to the plumbing or the HVAC, yes, there's an interaction there. But there is still that separation of discipline. Very sort of um has to comply with engineering code of ethics, legal licensing issues. So I do not do something which I am not sufficiently familiar and knowledgeable about. I always get somebody else for that.

Noah Bolmer 22:47

Speaking of your opinions, you've been developing opinions for quite a long time now. How do you keep track of all of the things that you've said and how you said it? If you change your mind about something or perhaps a methodology has changed uh and then you're attacked for it in court, how do you deal with those sorts of issues?

Speaker 2 23:08

Well, I've never been attacked in court for prior opinions.

Noah Bolmer 23:12

Oh, okay.

Speaker 2 23:13

Uh I don't know to what extent the attorneys or adjusters are doing historical research. I know that they do because at least one attorney has engaged me based on a deposition that she found I had done in years past and she liked it. Uh but how do I keep track of it? Is a simple answer. I don't. My approach is I tell the truth. I stick to the truth. If I do that, if I'm always honest, I don't have to remember anything I said. And I always have in all my reports and work a caveat that if I'm given new information, I have the right to change my opinion or to modify it, which has happened. I'm suddenly presented with something new. It's happened in court once or twice, which I was never given. And yes, I haven't seen that. Yes, it's important. And yes, it changes my opinion on the spot. So when there are new techniques, uh, new codes, whatever, yeah, it's going to change. When it gets to the forensic engineering work, it's very important to use the codes and the standards which are applicable to the job. Those may be historical. So, no, nothing really is going to change there. But it has to do with current state-of-the-art knowledge. Uh, one side may say, well, we now know that this will deteriorate concrete, or this is going to happen in the windstorm. And the other side, which, and it might be me on either side, because it's they're all valid arguments, will say, but we didn't have that then. That's not relevant to the fault. It may be relevant to the failure, cause of failure, but it's not a cause of fault. And it's important to distinguish between those.

Noah Bolmer 25:08

Walk me through a typical deposition for you. What are the sorts of questions that you get asked? What sort of a venue are you in? Tell me a little bit about uh depositions.

Speaker 2 25:18

Well, those have evolved for me over time. Um, primarily when I started my initial depositions, the focus of the first could have been even half an hour of questions was to destroy my credibility and my um qualification as an expert because my my CV would have been lighter, my experience was lighter, my background was lighter. Now they look through my CV, they ask questions. I'm not exactly sure why anymore. Um, and that challenge to credibility usually doesn't arise. There's the advantage of having been working for 40, 45 years versus working for 10. Uh, so the the first, destroying one's credibility as an expert and as an individual, doesn't happen to me anymore. It did at the beginning. Quite honestly, I really do enjoy that part. I miss it. Um now they do that, then they will go through what did I do for the project? How was I engaged? What was my scope? Very much the same things that we're talking about now. Uh was I limited, that often comes up. Was I limited in what I was allowed to do? And the answer is always yes. I'm limited in time, I'm limited in expense. Almost every forensic job can turn into a PhD thesis given an unlimited time and money. And I've seen that happen with some jobs where you know the other side goes totally bananas. And for whatever reason, the client their client is either happy or doesn't know or doesn't care. But yes, there are always limitations on time scope, not quality. That pyramid, um, you can never reduce the quality. Uh, the output should be as good as it can be, given the limitations on time and scope. They'll go through the questions on that. Then they'll get into a report, if there is a report. Some states don't require a report, uh, it varies. And they will then go through in a very fine way. They obviously had technical consulting going on behind the scenes, and I get the very detailed technical questions. Occasionally, um, I have found that I I made an error, and the most important thing to do is to simply confess, yeah, I got that wrong. Does it make a difference? Hopefully not. Uh I've yet to, I don't remember a time when there was an something which happened which I had missed, which had a material effect. There was one project, uh, the crane collapse in New York. There was a huge crane collapse, killed seven people. It was in 2008. It's known as the 51st Street crane collapse. And I was with ARP, and we were engaged by the New York City Department of Buildings, given a huge, almost unlimited budget. And we had six months to do anything we needed to get a report done. And we had certain questions they wanted to have answered. When it came to the trial, which was a murder trial due to the deaths, and the client at that point was the New York County District Attorney. The opposing expert came up with a hypothesis of what may have resulted in a failure, not proof that it happened, but simply that there was a possibility, which in a manslaughter trial is all you need. I forget what the legal phrase is. We've we've heard it in a lot of movies, though. And they presented something which we had not looked at. And I sat there for a bit in the witness stand, and I decided that that is possible, but the failure mechanism that they were referring to was not possible. Now, that could have just been a I say you say situation. Happily, I had created some props to demonstrate certain principles which I thought might be difficult to do just by words, and one of them included a cylinder, like this coffee cup, and on the table, I was also provided with paper towels. And the issue was that something going around this cylinder, a collar, could have fractured on the far edge. And physically, all things being perfect in a perfect world, you have some friction as it grips around, as the collar grips around the cylinder. That far end should not be the highest stress point. The highest stress point is going to be closer to the two and ten o'clock position. And having no idea what would happen, so this was a big risk, but it was a real question. I took the paper towel, I wrapped it around the cylinder, and I pulled, and it broke at the 10 and 2 position. Um, so I was able to demonstrate the opinion that I was providing, so there was physical evidence for it.

Noah Bolmer 31:06

Do you use a lot of do you use a lot of demonstratives like that?

Speaker 2 31:11

When it's possible. I was testifying about an alleged um design defect in a thousand-foot-high telecommunications tower related to a leg connection. That was the focus. They were the plaintiff was claiming that it was unsafe because the leg was going to fail in a certain way, and we were claiming that no, it's safe the way it was designed. And this was in Missouri or Kansas, and I got to the trial, um, which is a long story in itself, getting there. And I was in the witness stand and I was just starting a technical explanation. And I looked at the jury, it was a jury trial. They were all local people, which is proper. They were farmers, tradesmen, nobody technical. And I started talking about compression, tension, shear, torsion, and they looked at me, I could see like that their eyes glazing over. The court had provided me with styrofoam cups for water. So I took the cups and I started demonstrating what a tension failure looks like. Just take the cups and separate them. Torsion failure, shear failure, slide them against each other. And then I think what really got their attention is I took a cup, I put it upside down on the table, and I said, and this is a compression failure. And I went bam! And they also you know, and they paid attention for the rest of my testimony. That was unplanned. It was, you know, ad ad lib. But it was it was a lesson in my looking at who's making the decisions in the trial. Are they understanding what I am saying? And if I get the sense they do not understand my words, I have to change my words and my method of approach. That is something I've kept with me through all trials. If it's a judge trial, a bench trial, I look at the judge when I answer the questions. I want to know that he understands or she understands what I'm saying. If it's a jury trial, I'm looking at the jury, not the attorney asking me the questions. I have to look at him to understand the questions, so I use both lips and sound, you know, for that. Sure. Um, and I don't want anyone to think I'm ignoring the other counsel. But the the people I'm talking to, the testimony is not for the attorney, it's for the decider, the ones who are going to be deciding the decision. So all answers get addressed to them in a language that they understand. I try to avoid being technical. So if you can't explain something to a three-year-old and you don't understand it.

Writing Reports For Lay Readers

Noah Bolmer 34:12

Does that does that also uh go with uh your report writing? Do you make sure that uh an a lay person is able to parse your writings for your reports?

Speaker 2 34:23

Absolutely. If there are um, my favorite example is the term efflorescence. Now, every structural out engineer out there knows what efflorescence is. Pick someone at the shopping center, ask them, you know what efflorescence is, and they won't have a clue. So it may sound very nice and high-minded, but if if that's the term being used, it has to get completely defined. Usually I'll shorten it to white deposits, but I need to explain how they occur. In a report, I will define efflorescence, and then I'll use the term because it's a shorthand term, like most technical terms are, for what may be a very long explanation.

Noah Bolmer 35:04

Absolutely.

Speaker 2 35:04

I always try to gear the report to the layman.

Noah Bolmer 35:09

So we were talking about depositions and trials. One thing I like to ask all of my guests is if they have any pre-deposition or pretrial routine that helps them get into the right headspace and prepared for what could be uh a difficult or long day. Um, some people you know like to cram, some people like to do yoga, drink coffee. Do you have any routine that works for you that just gets you ready to go?

Speaker 2 35:37

Um, a good night's rest and making sure there's a supply of coffee. That really is it. I again, when I started, my very first testimony was at an arbitration involving a deteriorated wearing course, concrete wearing course at a hospital, which was over the emergency surgery area. So they were really concerned about this. Um, in order to get prepared, I created a loose leaf. There's yeah, there were no, we were not using laptops at those days. No one owned a laptop. I don't know if they had been invented yet. And in it, with all the dividers, a huge loose leaf, I thought it was like a three-inch binder. I put all the codes, standards, reports, everything I needed there. I nearly memorized the whole thing. And when I got there, this was also my first. So the credibility issue was major. And I was testifying. Um, my opposing expert was an expert, a seasoned expert in the subject matter. I was not, I had just done the work and I was very convinced of where I was, and I I had all the standards. I'd like I'm glad to say my side prevailed. I think we were correct, we were right. Um, but actually, there's several lessons there. One is do know the material. You know, winging it is not the way to approach anything.

Speaker 1 37:07

Sure.

Speaker 2 37:08

And don't be a hired gun. Admit when something's there. The opposing expert, if I recall correctly, did not admit things which were factual. And in my loose leaf, I had proof it was there. So the ASC, the ASTM standards for a wearing surface on a deck were very, very clear. The drawings of how this was constructed were very clear. Um, and he just went into denial on it. He was working, the phrase I I now like to use, he was working too hard for his client. Um that's the the best way I can do it.

Attorney Expert Relationship And Red Flags

Noah Bolmer 37:53

Absolutely. I mean, that that's an expert witness, their duty is to the neutral truth, not to, you know, the uh the end client or the attorney or anyone else. It's just to tell the truth. So that is absolutely sage advice. Um what tell let's let's back up to a couple just very general questions. Tell me a little bit about what makes for a solid attorney expert relationship. How do you get that started and how do you maintain that momentum throughout the action? And part two to that question is the reverse. What are some red flags that kind of warn you that this might not go the way that you're hoping uh in my proposal, and this should be in all expert proposals, I have a statement.

Speaker 2 38:46

I'm not going to be able to quote it, but it's to the effect that my opinion is my own and is not reflected by the client. And I make it clear that my opinion will be my own. It's not intended to help them. I will phrase my opinion in a way which is most beneficial. And my best example of that is the glass, eight-ounce glass, four ounces of liquid. The usual way people put it is it's half empty or it's half full. There's also there's too much glass. There's also there wasn't enough liquid. There's also they got the order wrong. The other is they ran out of the correct glasses, so they had to get a larger one to accommodate the order. The other is the menu doesn't say anything about how much liquid you're gonna get. You know, as I put it to one person the other day, if you have an eight-ounce glass and you order some whiskey at a bar, they're not filling the glass. They're not even gonna half-fill it. So are you gonna complain I have a half-empty glass? No, no one in their right mind would expect you to fill it. So there are all these ways of saying the same thing, exactly the same thing. The way it's said affects is affected by who the client is. The facts don't change. And the interpretation of the facts has to be consistent, whether it helps or hurts. I had one job where the um it had to do with a a severe injury from somebody falling off a telecom tower. I used to do a lot of telecom towers. And what I didn't know is that the attorney, who is a personal injury attorney, had engaged another expert on exactly the same thing. We each gave our reports. I gave exactly the facts, my interpretation. It wasn't as beneficial as he would have liked. And he told me he's going to use the other expert, you know, because it's a better opinion. I heard from him a couple of months later that he got rid of him because the guy had no credibility. Whereas my approach was highly credible. So, no, I didn't say exactly what he wanted, but I was consistent and I could stand behind my opinion without any doubt.

Noah Bolmer 41:12

Absolutely. Before we wrap up, do you have any last advice for expert witness or attorneys working with experts?

Speaker 2 41:21

Uh stick to the truth. Um, an attorney is an advocate. They are there, in my opinion, to do the best for their client. The expert's opinion work is to provide the best information, correct information. So the attorney can do the best for their client given what really happened. If it's a personal injury versus a construction defect, it it's still the same. It may not be the absolute best thing that the attorney was hoping for, because yes, their client did contribute to their injury. They shouldn't have been there. But with all the other parties involved, should it have happened anyway? How many contributors were there? Usually there are multiple in a construction case, there are many subcontractors, many consultants, many designers, could be several inspectors. There are typically more than one, more than two, who contributed to the problem. Should they pay? Should they be held culpable? I have no idea. That's not my job. My job is to point out and to give the attorney the information on where do the faults lie, how much of the faults contributed to whatever it is that's being claimed. Not to cover it up, not to say their client didn't do anything. They have to have the correct information because if I don't do that, the other side definitely will. And if I don't do it for our own client, I will lose all credibility in the opinion I provide. And in my client's point of view, they lose the case. For me, I still get paid. Yeah, so it for my, you know, I'm I'm fine, but that's not the attitude to take. I like to think that the work I do serves the cause of justice, not the cause of my bank account. The bank account will take care of itself. I'm there to provide, as I said, the best honest information. If it's simply an insurance claim and it's a defense attorney, they want to know what is their exposure. They don't want to know how they can get out of it. They want to know how much should they reasonably pay because they almost always take care of it through mediation. They want to know how high they can go, how low can they go. If it's an injury, what is the contribution?

Noah Bolmer 44:01

Absolutely. Mr. Cohen, thank you so much for joining me here today.

Speaker 2 44:06

It was a pleasure. Thank you.

Noah Bolmer 44:08

And thank you as always to our listeners for joining us for another edition of Engaging Experts. Cheers.