Engaging with Employment Law Attorney, Derek Smith

One weak expert can turn a strong case into a courtroom disaster, and one great expert can change the entire settlement conversation. In this podcast episode, we sit down with nationally recognized employment attorney Derek Smith of Derek Smith Law Group PLLC to talk about what actually works when hiring, managing, and preparing expert witnesses in sexual harassment and employment discrimination cases.

We start with the moment Derek learned the stakes firsthand: a first case that forced him to get serious about emotional distress damages, diagnosis, and how expert testimony holds up under scrutiny. From there we get practical about expert witness vetting, including the must ask questions that protect you from the nightmare scenario of a judge refusing to qualify your expert after you’ve already spent months and thousands preparing for trial.

Then we dig into the mechanics that trip people up: privilege and confidentiality, what is discoverable, why every document you give an expert matters, and how compensation discussions can create bias issues. Derek also shares his unorthodox approach to deposition and cross-examination prep, including improv based warmups to help experts stay calm and sharp, plus a mock cross that is tougher than the real thing. We wrap with engagement letter terms, flat fees vs hourly billing, demonstratives and visuals that persuade juries, and why long-term relationships with experts are a career advantage.

If you work with expert witnesses, want better trial preparation, or simply want to understand how credible testimony is built, this conversation is a practical guide. Subscribe, share this with a colleague, and leave a review with your biggest expert witness lesson learned.

Transcript

Sponsor Message

SPEAKER_00 0:02

This episode is brought to you by Roundtable Group, the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at RoundtableGroup.com.

Noah Bolmer 0:15

Welcome to Engaging Experts. I'm your host, Noah Ballmer, and today I'm excited to welcome attorney Derek Smith from Derek Smith Law Group PLLC to the show. Now, Mr. Smith is a nationally recognized attorney specializing in sexual harassment and employment discrimination law. With decades of experience, he successfully litigated landmark cases that have shaped workplace rights. Mr. Smith holds a JD from Penn State. Mr. Smith, thank you so much for joining me here today.

SPEAKER_01 0:44

Well, Noah, thank you very much for having me. I'm genuinely passionate uh uh about working with the right expert witness. And and I can tell you that having the right expert witness means the difference between winning and losing a case. And so let me just tell you, uh, this is an important topic to me, and I'm glad we're talking about it.

Noah Bolmer 1:07

Let's jump into it. So you've been practicing since gosh, 1995, but when did you first encounter expert witnesses?

SPEAKER_01 1:16

Uh-huh. So the first time that I encountered an expert witness was probably my very first case. I opened up my own shop right out of law school. I found an office space downtown New York City where I was donating 30 hours of my time each month in exchange for a free office. And I'm all excited, and I show up my first week, and a lawyer down the hall said, Hey Derek, I got a case you might be interested. Uh I said, Okay, well, what's what's going on? Well, as it turns out, it was a young female uh secretary working at a big record company. And her boss one day comes into uh her office or by her desk and and says, uh, here I got you a present and gives her a fortune cookie. What? And he's like, Go ahead, open it. And she opened the fortune cookie, and the fortune said, Happiness is when you suck a blank. Okay.

Noah Bolmer 2:22

But it didn't say blank.

SPEAKER_01 2:24

Correct. And uh and and she's like, what the heck? And and couple that with all of the times that he's hitting on her, asking her out, making all of these sexual advances. And and so she comes to me, and I had no idea how to handle a sexual harassment case. Remember, I I'm right out of law school. I I just went right for it and opened up my own practice. And I went to the Strand bookstore in in New York City, which uh I found was like my original internet. You can go in there, miles and miles of books. And I went to the section on sexual harassment, and I bought all the books and I read all about it. And and in there I saw that the difference between having an expert and not can mean the difference between a multi-million dollar verdict being upheld or being reduced to 25 grand or less. So that's when I said, Oh my God, I better get an expert on this to interview her and find out what type of emotional distress that we're dealing with and have a real diagnostic diagnosis.

Noah Bolmer 3:44

Wow. Wow. So early on, you you really hit the ground running with that, didn't you? So so you you read everything that you could, and then you you looked into expert witnesses. What happened next?

Finding Experts And Asking For Help

SPEAKER_01 3:55

So I looked into expert witnesses, and you know, there are expert witness or associations that you can contact, and they'll put you in touch with expert witness. You ask around, I need expert witnesses. Um, and and uh that's why reputation for experts is so important. And and a couple expert witnesses were recommended to me. And then for the first time, I hired an expert witness, and it consisted of examining my client, examining any past um um psychological records, and then writing a report, sending it to me. And that's what I used to send to the other side to help settle the case.

Noah Bolmer 4:38

Now, I don't know about when you were in law school, but when I was in law school, they didn't do a lot of teaching you about how to vet an expert, how to acquire an expert witness, really a whole lot about expert witness, uh witnessing at all in general. So, how did you do that? Make that first phone call. What were the sorts of questions that you asked? And how did you you know make sure that they were the right person for the job?

SPEAKER_01 5:04

Well, I was like a deer in headlights back then. And no, so so at that point, I was kind of relying on the expert. I said, Look, so-and-so recommended you. Uh, what do I and but you raise a good point, no? If you and I were opening up a a law school nowadays, we would have courses on on real life law practice. Of course, how to hire an expert and a million other things. Like, how about doing accounting? Uh so um, so yeah, so it it's okay if you're dealing with a true expert who's been around for a while, let them lead the way. Hold your ham, say, what do I need to do? Now what happens? That's all right. We we stand on each other's shoulders all the time. You can rely on these experts to help you out. And one of the biggest mistakes that attorneys, um, uh, especially like young attorneys do, is they want to pretend that they know everything. They want to pretend because they're embarrassed to not know something. It's okay to say I don't know. Or if you're in a deposition and a you know, opposing counsel is, you know, browbeating you. You should know the law. Uh well, actually, I don't know the law. Would you please, on the record, put tell me what the law is and specifically what case you're citing to, so I can look it up to see if what you're telling me is the truth. And they get all jumbled and everything. But it's it's very important to ask for help, and that's okay.

Vetting Credentials Before You Hire

Noah Bolmer 6:31

Absolutely. Well, now that you've been doing it for a while, what are the sorts of questions that expert witnesses can and should expect when going into an initial phone call?

Privilege Risks And What’s Discoverable

SPEAKER_01 6:42

It is a relationship. It's not just uh a transaction. And and and you know, an attorney when interviewing an expert witness, they need to focus on expertise, they need to expose focus on experience, and they want to know first and foremost, has this expert ever been qualified as an expert before? Because that's a big deal. Because, you know, picture this you spent thousands of dollars on this expert witness. You spent hours and hours doing depositions and preparing and expert witness disclosures and prepping your case and getting all the way to trial and getting all your ducks in a row. And then, Your Honor, we call expert witness psychologist Joe Blow. And Dr. Blow gets up there, and next thing you know, uh, because of his lack of credentials, the judge says, I'm not qualifying them as a witness, and you're dead. So that could have been prevented from the very first conversation. Hey, do you have your PhD? Do you have your clinical social workers degree? How long have you been practicing? Uh what type of practice do you have? You know, that these sorts of questions are very important because you want to make sure that you don't find yourself completely flat on your back once you get to trial and they can't be called as a witness.

Noah Bolmer 8:09

Let's talk uh let's let's talk uh setting up communications a little bit. So confidentiality and privilege. How do you work with your expert to make sure that they understand what to communicate and how to communicate and in a in a given venue because this is not always consistent, right? Correct.

SPEAKER_01 8:28

But for the most part, let's take federal court and most courts. Everything between an attorney and their expert is privileged. It's amazing. I I love that because you know you want to be able to speak freely with your expert. Hey, do you think I have a case here? Uh you know, um, but but there are certain things that are discoverable, one of which would be every document that you give to your expert, the other side gets to see it. So it is so important to give everything because the best way to cross-examine cross-examine an expert is to say, isn't it true when you wrote this report? You didn't have this document. And had you had that document, sir, doctor, you uh would have uh changed your mind. You know, you you um uh you don't want to find yourself in that situation, you want to minimize the cross-examination. So give them everything the good, the bad, the ugly, and um uh other times uh also any communications regarding their uh compensation, because that goes to potential bias. Now, if you happen to be in one of the jurisdictions where communications with the expert are discoverable, then by all means, the expert needs to understand that anything that they are giving you, any emails that they are sending you, text messages, whatever, I want them to picture it blown up on poster board size at the time of trial and the whole world is looking at it. Are they okay with it?

Noah Bolmer 10:09

Let's talk about some of those cross-examinations, some of those difficult situations that experts find themselves in, contentious depositions, people yelling at them like they do on television. What are some of the ways that you like to prepare uh experts uh for potentially difficult situations?

SPEAKER_01 10:28

Okay. I'm a little unorthodox here. Um, and I took uh a bunch of improv classes. I thought it was the best thing I ever did for my trials. I make all of my attorneys take improv, uh at least one improv class. And, you know, we do warm-up exercises in in improv to to relax uh your mind. And that's what I like to do with the expert. I do a couple, I'm not even gonna tell you, you know, the uh the routines, but I I say, all right, I just want you to do this with me. Humor me. They laugh, they um they they get into it, and then they're relaxed. That's number one, because you need to have your wits about you when you're doing a um a um a deposition or being cross-examined. Secondly, if uh if they get asked something that I could have told them about beforehand, but I didn't, that's my fault. Me, the attorney, take the blame, take the responsibility, and sit down with them and really do a cross-examination of them as if you were the other side. In fact, I say do it even harder so that when they are actually testifying, uh, it is not as bad. And and they're like, oh, that was a walk in the park, that was no problem. So uh preparation, giving them all the material and relax and and and and look, sometimes the other side's gonna make a point. Let them make the point. Don't fight with them.

Noah Bolmer 12:06

Absolutely. Can you without going into any specific details? Obviously, some of this is confidential, but without naming names, can you tell me about some of your 10-pole cases where an expert witness played an outsized role?

SPEAKER_01 12:20

Sure. I I had an expert who uh who I loved. I I um you know, I've been doing this for 30 years, and so we I was dealing with him many years ago for you know decades. He um he when he would get cross-examined, he would start talking about Shakespeare. He would be quoting like from uh uh Romeo and Juliet or Othello, or he'd be using Latin phrases, and but but he didn't do it in a really pretentious way, he did it in a way that just completely befudd the defense attorney, where they're just sitting there, oh okay, and and it was very impressive. And they he had a response for everything. So he's he's actually an example of of an expert that the preparation was very short. Just go over you know a few things, and you know, they can handle he has a response for everything. Have you ever been to a uh timeshare presentation, Noah?

Noah Bolmer 13:30

Unfortunately, I have to admit that I have, yes.

When A Great Expert Owns The Room

SPEAKER_01 13:33

Me too. And and and I said they are the most talented negotiators and they have an answer for everything. It's like it's almost like a flow chart. Like if they say this, say that. This expert was like that. They had an answer for everything, and it was very impressive.

Noah Bolmer 13:53

Uh, let's let's uh move on to venue for a moment. Have you worked outside of the country or in any interesting types of venues, congressional hearings or out of state? Where what sorts of venues have you worked at and how does that affect expert witnesses?

International Venues And Foreign Law

SPEAKER_01 14:08

Sure. Uh well, uh I speak French. I had um a bunch of uh um French clients. We actually represented also Americans. One of the things that um people don't realize is that Americans who work abroad for American companies are covered by American laws. Even in, you know, Djibouti, it doesn't matter. They're still covered by American law. So it, you know, had those cases. I've got one going on right now. I repres represent Caroline Manzo, who was a uh Real Housewives uh of New Jersey cast member. Uh and she was involved in a um an incident in Morocco. And so uh it it happened in Morocco. It was being filmed by you know Bravo and their production companies. And the question is, you know, does Moroccan law apply? And and that point, you know, you got to get uh a lawyer over there and you say, Hey, do I have a case in under Moroccan law? Can I sue in Morocco for something like this? That's that's one example. Another example would be, you know, these cases, like I said, where I'm representing foreigners who are, I mean, sorry, Americans in a foreign country. And yeah, you have to deal with psychologists and um and also economists who who can talk about maybe the different uh job benefits that you get in Europe, for example, that you don't get over here. So it is a bit of a a balancing act and to understand the differences. Uh, and but so it does happen. And when it happens, you know, you you gotta be prepared and you got to um uh understand that it just because you're handling an American case doesn't mean that you're not gonna need outside foreign help.

Noah Bolmer 16:03

Let's talk red flags. Are there any red flags you think that an expert is particularly qualified and everything seems all right, but then uh-oh, this is just not going to be the right person or even mid-engagement, something that just sets up a red flag and gives you a little bit of pause?

SPEAKER_01 16:20

Never ever say anything that's untrue. You want your expert to accentuate the positive and minimize the negative. But sometimes you'll get an expert who seems to be trying too hard. And then, you know, it that's a red flag. It's like, why are they why are they pushing this so hard? They really want my business, okay, fine, but you you know, I can't have them compromising the truth. And and and that's when it it becomes a problem. And I want nothing to do with that that expert. So uh be an advocate, accentuate, minimize, but you know, let's let's maintain our credibility here.

Noah Bolmer 17:03

Let's circle back to you. We're talking about contracts a little bit. You're talking about those first engagements and engagement letters that can become discoverable. Do you have any specific terms that you like or specific terms you don't like to see in expert witness engagements? And do you typically supply those or do you use whatever the expert sends at you?

Red Flags That End The Relationship

Engagement Letters Fees And Boundaries

SPEAKER_01 17:22

I do both. It depends if they have. I mean, I've even had just like an email setting forth the terms. But, you know, a friend of mine once said, um, you go into business as enemies and you'll always remain friends. And and that means get the terms down, fight over the terms if you have to, but get them down, and then that becomes your Bible that you refer to throughout the case. I, as um, as a practicing attorney, love flat fees. And okay, the flat fee for this report uh and evaluation of my client is X. And and that's it. And then I don't have to worry about if you know their evaluation takes extra two hours, three hours, six hours, whatever it is. Sometimes it's good to have multiple um uh evaluations. They want that, let's have a flat fee. Love that. If it is hourly, okay, but you know, give me an idea of how much and remember this is gonna be a relationship. So if you tell me it's gonna probably be no more than, you know, a thousand, two thousand, whatever, and next thing you know, I'm getting a bill for six thousand. I have a problem. I don't think I'm gonna use you anymore. Uh it and um, and also, and this becomes an issue, trial. If you appear trial, it let's set forth, okay, I have to give you X number of days uh notice um and how much you're gonna charge for trial, and you'll use best efforts to you know accommodate, et cetera, et cetera. And if it gets adjourned, because you know judges get adjourn cases all the time or a witness is unavailable or gets adjourned, what happens in that case? What's the penalty to me? So I think it should be set forth in the engagement letter right from the get-go.

Noah Bolmer 19:14

Are there any other expectations that you like to make sure are set at the outset so that you're both on the same page in terms of what's expected and when it's expected?

Demonstratives That Persuade Juries

SPEAKER_01 19:25

I it's understood that I'm going to treat them with respect. I want them to treat me with respect. And another thing is if uh they can't get a document that they need, like let's say it's a person's past psychological records, and they write the report, and in that report it said, uh, if I had the person's psychological records, uh my opinion might change, or or my my uh diagnosis is um uh not final until I have it. Don't do that to me. Call me up, tell me I have um I don't have the documents. I will get them for you. I know how important that is.

Noah Bolmer 20:07

How do you feel about demonstratives? Like, do you like reports that have lots of charts and graphs and pictures? Do you like people who bring models and displays? And if so, do you supply any of that or do you leave that to the expert?

SPEAKER_01 20:20

So generally, the expert report is not in um evidence. It doesn't come into evidence. It's basically used to show the other side, hey, this is what's going to be discussed. Um and but a trial, oh my God, show and tell is the best. Uh, you know, pie charts, you know, uh it even the uh question questionnaire, like the um uh the Hamilton uh depression questionnaire, or it could be uh who knows, maybe even the Rorschach test. And this is what they found that to be. Um, and explain it to the jury. Same with an economist. Uh, bring me the facts and figures. Show me, okay, this person has a work-life expectancy. Show me the graph. They would have made this much more money each year going up and up and up. Uh and and I can then use that when I'm doing my summation saying, members of the jury, take a look at this. This is what they were going to make. You heard Dr. Schmirge say that they're going to be making you know, uh uh making this much money. It's very effective when you have show and tell stuff.

Noah Bolmer 21:33

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

SPEAKER_01 21:40

Sure. Um I come back to relationships. These experts are people I hope that you have decades career-lasting relationships with, get to know them. They're they're gonna be your lifeline. You you may say, you know, hey, should I even? Hire you on this. I love when I call up an expert and they're saying, I don't think uh you know you you want uh to hire me on this case. It's great. You just like saved me a lot of money having you evaluate the case the whole bit. And also you probably taught me something. I probably need to settle that case for a lot less than I thought. Uh so relationships respect. Um, I I worry that uh the uh latest generations are not valuing the importance of relationships with the people you work with as much as they should. So that would be my advice.

Noah Bolmer 22:37

Incredibly important and sage advice. Mr. Smith, thank you so much for joining me here today.

SPEAKER_01 22:42

Noah, it was a pleasure talking with you. Thank you so much for having me.

Noah Bolmer 22:45

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

SPEAKER_00 22:52

Thank you for listening to our podcast, Engaging Experts. Our show notes are available on our website, roundhumergroup.com.