Engaging with Environmental Expert, Mark Elmendorf

One of the fastest ways to lose credibility as an expert is simple: say more than you need to. Environmental consultant and expert witness Mark Elmendorf joins us to share what nearly 40 years of environmental consulting and courtroom work taught him about testimony, cross-examination, and building expert opinions that hold up when the other side comes swinging. 

We get into the real mechanics of expert witness selection and case intake: what attorneys ask for when they need a specialist in hazardous materials, regulatory analysis, contamination, or exposure scenarios, and what Mark asks back to avoid surprises. We talk conflict checks, why “just firewall it” can create risk, and how expert work often plays out in insurance-driven environmental litigation where carriers push hard to settle. 

Mark also breaks down his expert report writing strategy in detail: outline first, choose opinion points up front, keep each opinion distinct, and support it with clear references, cost analysis, and industry standards. We discuss rebuttal reports, why personal attacks are a credibility trap, and how strong writing and tight proofreading can be as important as technical knowledge. Finally, we cover practical trial prep, document overload, and the habits that keep an expert attorney relationship smooth from engagement letter to the witness stand. 

If you care about expert witness best practices, environmental litigation support, and writing reports that survive scrutiny, this one is for you. Subscribe, share this episode with a colleague, and leave a review with the biggest expert-witness challenge you want us to tackle next.

Transcript

Sponsor Message And Setup

SPEAKER_00 0:01

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 Mark Elmendorf to the show. Mr. Elmendorf is principal at Root Associates, an environmental consulting and management firm. He is an expert in regulatory analysis, risk management, and hazardous materials, and a whole lot more. Mr. Elmendorf is a sought-after public speaker and expert witness. Mr. Elmendorf, thank you so much for joining me here today on Engaging Experts.

SPEAKER_01 0:41

Well, thank you for having me. I'm excited.

First Testimony And Cross Pressure

Noah Bolmer 0:43

Let's jump into it. So you've been in environmental consulting for gosh, nearly 40 years, it looks like. Uh, how did you first become involved in expert witnessing?

SPEAKER_01 0:52

Uh, you know, I had been doing consulting for a while, and I was working with a couple of attorneys who had uh cases I was working on with them, doing like some expert reports. And two of their cases actually were going to go to trial. So they asked me to testify and spent a couple of weeks getting prepped, meeting with them, and testified. And you know, both cases uh turned out quite well for them. Uh was an insurance carrier involved, and they were very happy with the work. Um, and I just really enjoyed doing it. It was something different. You know, you really got to use your expertise and you know, the matter of that at the end. It was enjoyable working with the attorneys and seeing the strategy they were using to try to, you know, get their side of the story across uh as strongly as possible. You know, a little nervous the first time you actually go to court and you're up there and it's very formal. And when you're testifying, I've always found that part of it easy, you know, because I'm prepared. I know exactly what I'm gonna say, pretty much, you know, not exactly, but pretty close. Cross examination, that's the part where a little more stress, um, because you really don't know, you know, what they're gonna say. I was told by an old attorney early in the early in the game, yes or no is the best response for cross-examination questions. Don't don't offer anything, just yes or no, and stick with it.

Noah Bolmer 2:20

It's it's interesting. I've had so many experts come on that have been doing it for a very long time, but very rarely, if ever, have been in an actual court setting because so many of these go to uh settlement. So it's it's interesting that your very first shot, you were already right in there, right in court.

SPEAKER_01 2:39

I think in our field, and I know you do a lot of different areas, of course, you know, the extra witness uh realm, but in the environmental business, I think a very large percentage of the cases have insurance coverage. So you have an insurance carrier that's in there saying, you know, it's gonna cost us this much to go to trial. Let's let's start offering, you know, incremental amounts going up and up and see if we can settle this out and avoid going to trial. And that's why so many of the cases sell.

Noah Bolmer 3:10

Right, right, exactly. And that's true in a lot of different industries.

Vetting Calls And Conflict Checks

Noah Bolmer 3:14

Let's talk a little bit about initial phone calls. So you get a call out of the blue, somebody needs somebody with your uh particular brand of expertise. How do they vet you to make sure that you are the correct expert for the job? And how do you vet them to make sure that it's an engagement that you are the right person for and have time for?

SPEAKER_01 3:32

Well, usually, you know, they'll ask for a CD in an interview, and then they'll ask you to provide very specific experience examples. I just started a case out in California that involves uh gasoline exposure, and they wanted me to provide them with example cases and projects that dealt with very specifically tank systems, gasoline, beatx contamination, air exposure, that type of thing. So I wrote up about 10 different cases uh background information and sent it out to them with my CV. And then we had an interview that lasted probably about 45 minutes. Then they asked me, do you kind of go through some of the cases? I always ask a lot of questions because I want to make sure there's nothing, it's not going to be a big surprise once I say, Yeah, okay, I'm ready to go with this. Uh, so I want to know, you know, all the parties involved, whatever information I have to describe to me exactly what the case is about. How many people are involved, uh, how many plaintiffs involved, what are they claiming? Property damage, is it health damage, is it, contractor problems, whatever, you know, just so you really kind of understand. Um, we do a conflict check on all the parties right off the bat before we commit anything. Make sure, uh, and you'd be surprised, we're a decent-sized firm. Uh, we represent a lot of the bigger corporations out there. So there's probably 10, 20% of my cases I had to turn down because we have a conflict.

Noah Bolmer 4:59

Oh, no kidding, that happens a lot for you, huh?

SPEAKER_01 5:02

Yeah. And we have a bunch of nationwide contracts with some some of the bigger corporations. I mean, just to be on the safe side, if they're involved in any way. I hate to do it, but I usually turn it down.

Noah Bolmer 5:12

Sure.

SPEAKER_01 5:13

Once in a while I try to get around it one way or another. But I find you start to open up the door to problems. I say, ah, well, you know, we'll put up a firewall and we won't talk to people or whatever, you know. But you're still you know, you're still on the other side of that company and it could come back to bite you.

Noah Bolmer 5:28

And you know, the of course the attorney doesn't want a conflicted expert any more than you want to be part of a conflicted action because it can, you know, remove their best expert from the action.

SPEAKER_01 5:38

It could complicate cross because if they if they wanted to, they could twist that somehow that's your involvement with one of the plaintiffs. You wouldn't look good. Well, just if it was a jury trial. And sometimes there's multiple room people working on these projects, and we're all going to be on the same page with what we're gonna do.

Working Inside A Trial Team

Noah Bolmer 5:54

Absolutely. Well, let's talk a little bit about trial teams. So, in larger actions, a lot of the time, it's not just one expert witness and it's not just one attorney. There's a whole team of people playing together, sometimes apart. To what extent do you work with the entirety of the trial team? Do you work in any way, shape, or form with the other expert witnesses? Do you work with a multitude of attorneys, paralegals, assistants, and and what and so forth? Tell me a little bit about the makeup of the trial team.

SPEAKER_01 6:21

Most of the time, there's several attorneys involved. There will be. There'll be an associate attorney or paralegal, somebody else that's kind of the day-to-day providing documents, you know, getting questions. There have been times where I've interfaced with other experts. The focus of that has always been not necessarily exchanging documents, but having conversations to understand where each of us was going to make sure we weren't going to contradict each other. A common point that we were going to get to, make sure we're all on the same page, so it looks good. You know, you don't want one person saying this, another person saying that, uh, you know, five minutes later.

Noah Bolmer 6:56

Is that something that your attorney sets up or that you do okay?

SPEAKER_01 7:00

Yeah, the attorneys would handle getting that in place.

Noah Bolmer 7:03

And I assume that whenever you're talking to another expert, there's an attorney present.

SPEAKER_01 7:07

No, not always. Yeah, they're they're pretty open with that. When we do expert reports, which is uh really a big part of what what I do on those cases. I think following the legal credo, you know, they're not supposed to comment on your expert report, not supposed to give you guidance, we'll exchange ideas and stuff. You want everybody to be happy with the focus of what the arguments are going to be. Everybody's making those arguments in their documents. The attorneys are filing motions, you've got your reports. You might have rebuttal reports once the other side comes back and complains about your report, talks about how stupid you are, and you know how much of a moron you are, and you don't know what you're talking about. And it's good to share. Let me put it that way. You know, you've got an idea of what everybody's

Writing Reports Built For Rebuttal

SPEAKER_01 7:55

doing.

Noah Bolmer 7:55

Tell me a little bit about your report writing strategy. How do you go about starting a report? Do you like to use demonstratives? Do you like to use indexes?

SPEAKER_01 8:03

I have a re I have a real organized way that I do it. I'm very good at expert reports. I'm very I've always gotten very good uh reviews on my my expert reports. I start with an outline, and I know you know the front end of my report is gonna be background information, and that's easy. That's you know, that's that's that's good. And so what I do is I I start with it with a uh you know, I make an outline and I start by deciding what my opinion points are gonna be. So, you know, I might end up with five or six or seven or eight points that I'm gonna make. Opinion one, plaintiff uh failed to do A B and C. And then I go to the next one and I get that because I don't want to have duplicate arguments in the extra report. I want to separate the issues as much as possible into kind of you know a fine-tune argument. So each opinion is very unique and covers one important topic. If it's say I worked on a uh big PCB case a couple of years ago up in New England, and and I broke it down into like failure to review relevant information, uh misinterpretation of sampling results, I broke it down into topics, and that reads well because then it's okay. They're gonna have to come back and they're gonna have to address each of those points separately, not merging everything together and blending everything. It's very specific topics. And then each of those topics will have reference material, background information, maybe other documents that the plaintiff has provided or documents that we've found as an attachment, an analysis if necessary that we've done on something, because it's costing information. We'll do, you know, we'll do a cost analysis and put paste that summary right in there. So it's right up front and center. I did a fracking case that should have been $30,000, $40,000 claim, and it turned into a $3 million claim. And a lot of that argument was based on failure to operate their site properly. I went through every piece of equipment, every dike, every containment system, everything, every single individual item, and said, this is what the industry standards, the state regulations required, this was what they had, this is why it was inadequate, this is why it was inappropriate, and it went on, boom, boom, boom, boom, boom, boom, boom. You know, so anyway, if they found a strong argument for one of those items, it was 40 items. You know, like they're never gonna, you know, they're never gonna walk away from all of it to wrap it up after all the different opinions we did in an or I did an analysis that said, look, if they had been operating the site properly, this is what would have happened. Boom, boom, boom, you know, A, B, and C. The cleanup quest for that would have been again $40,000. And they home, that was an insurance coverage where they were trying to subrogate against other parties to recoup that $3 million. And they didn't have a good argument.

Noah Bolmer 10:56

It sounds like you write your reports in anticipation of their rebuttal.

SPEAKER_01 11:00

Oh, yeah. Oh, yeah, absolutely. Yeah, you have to do that. I mean, that's something different. I did a criminal case a few years back that I thought was very interesting. Um, two small business owners were being sued by the EPA uh and charged with criminal violations. I did a report, but that really wasn't the main focus. The main focus of that case was um being in the courtroom every day for four weeks and giving my team of attorneys as much advice as I could on how to cross-examine the EPA's witnesses. And that went really well because the EPA's witnesses were Cory, Daryl. One of their witnesses was so bad, the judge offered to call a mistrial because the witness was just that bad in contradicting himself and putting information on the table he shouldn't have been putting on the table. But that's another example, though, of how we can help. You know, they retained me. I would I went and I sat in the back of the courtroom every day. And at the end of the day, we could get together for a couple hours, review the testimony, and come up with a list of cross-examination questions for them to put out, you know, for them to go and attack the witness. But again, they're their witnesses were terrible. And it looked good for us because at the end of the day, they were found innocent of all charges. Uh it was great.

Noah Bolmer 12:15

What's your uh rebuttal strategy when you're writing a rebuttal report against somebody else? Do you find that the opposing reports are usually as well organized as your own?

SPEAKER_01 12:24

Too many of these people, and I would never say this to somebody's face. I find a lot of the expert witnesses put in way too much background information. That PCB case, the first rebuttal report I got back, yeah, it was probably 80, 90 pages. And I have to say, probably 75 of those pages were just background information. Studies, he quoted, QPA documents, he quoted, and just paraphrasing. It had nothing to do with the case. And he starts it out by on the first page, basically saying, Well, this guy's a moron, doesn't even know what he's talking about. But the fact, you know, stick with the facts. I would never issue a remote report and say, okay, this other this other expert's a moron, which we happens more than you think with these people. It diminishes your credibility right off the bat that you're not sticking to the case and the facts. If you have an argument to make that you're right and I'm wrong, make that argument and explain why. What are the facts? I said the needs do this under this regulation. Is that wrong? Well, if it is, explain why. Quote the regulation. Is it a definition misinterpretation? Is it something like put something on the table that makes sense? Not just I disagree

Settlements Tech Changes And Fees

SPEAKER_01 13:40

with you.

Noah Bolmer 13:40

As somebody who's been doing this for a while, have you seen any significant changes in expert witnessing in general? Has technology changed? Has uh timing changed?

SPEAKER_01 13:51

I'm old, so we want to look around technology changing. I think it takes you back to fax machines, couriers, and you know, FedEx binding your own documents in the back room, you know, nine o'clock at night saying, you know, to make FedEx to before they close. Yeah, the young kids today have no idea what any of that's about. PDF and email something, you know, like, I don't know. It used to be. Run to FedEx by eight o'clock to make sure you got it, got the package out to get it out to, you know, the next state so the lawyer's happy. I tend to think over the last 10-15 years or so the insurance carriers have gotten much more aggressive with wanting to settle cases. And I don't know if that's really a cost function, policy function, whatever, but you know, the bigger carriers and we work for pretty much every insurance carrier out there, you know, they really just don't want to go to trial. And maybe because you know, there's been some unfortunate bad outcomes when they do go to trial. So they just decided that if we can avoid it, let's, you know, let's pay a few bucks.

Noah Bolmer 15:06

Does the move towards settlements affect you as an expert witness, your ability to work and make money? Because obviously it can potentially make more money uh than if it settles rather quickly. So, how has that affected your business?

SPEAKER_01 15:20

Yeah, I mean, we're we leave a lot of money on the table when these cases settle. Because you just get that phone call all of a sudden, but yeah, we settled and stopped working. Or so you might have another six months' worth of work on that case if it was going to trial.

Noah Bolmer 15:32

Do your contracts anticipate that at all with like non-refundable retainers, ways to make that up a little bit on the front end?

SPEAKER_01 15:38

I think I think uh everyone kind of does that differently. Again, I'm you know, I'm kind of old school, so I don't I don't even ask for a retainer most of the time. I probably should, but I don't. I I do a quick uh one, two-page retainer agreements. I do a flat hourly fee for everything. You know, some guys have all different rates for you know, expert reports, trial testimony, you know. I used to use this phrase for everything. Keep it simple. You know, expenses plus whatever, you know. Uh I think the attorneys appreciate that. It makes it simpler for them too.

Noah Bolmer 16:12

Sure.

SPEAKER_01 16:12

And then, you know, I'll do a you know, estimated not to exceed for the different phases of a case if they want it.

Noah Bolmer 16:20

Okay.

SPEAKER_01 16:20

The ones guys I work with a lot that don't even ask for that anymore. They just say, you know, get start reviewing stuff. Um, you know, and it could be it could be some effort sometimes. I mean, you know, they send you over call you know a hundred pages of documents. It takes me 10 minutes to go to that. They send you over 20,000 pages of documents. Although most lots of times, you know, 90% of that information is worthless, you still have to go through it. And it's costing information, and get and I can get one of our staff people to summarize it for me to save money. I'll do that.

Noah Bolmer 16:55

Sure.

SPEAKER_01 16:56

You know, if somebody, if somebody sends me again, you know, three million dollars worth of invoices, I'm not gonna sit there and you know, I don't psych that fast. Uh, you know, I'll get I'll get one of my staff people to sit and pull all that together in a nice organized fashion. So I can just look at that and understand, you know, what we have.

Noah Bolmer 17:14

Is the expectation from your engaging attorney that you will look over all materials that are sent, or is that more in case you need it, here it is?

SPEAKER_01 17:23

I think I think 95% of the time they expect you to look at what they sent you. You know, again, because you're they're they're relying on you to pull out if there's something important in those documents that they're not catching. And even though they might be an environmental attorney, you know, they may not have the expertise in that particular area. You know, again, whether it's tracking and, you know, well drilling, uh, you know, PCB management, air emissions, whatever, you know, like they're looking for you to say, oh, here's, you know, not the magic bullet document, but you know, these 10 documents are important. Like, make sure you, you know, make sure you understand these. Um, and usually that's what ends up happening is it's a large volume of the material is kind of worthless, but there'll be some good stuff in there that you can use if you're gonna do an expert report.

Court Prep And Finding Key Evidence

Noah Bolmer 18:14

As somebody who has spent a significant amount of time actually in courtrooms and underwent cross-examination, what is your your preparation strategy? You're gonna go into a potentially contentious situation, you're gonna undergo cross. How do you get ready the day before, the morning before?

SPEAKER_01 18:32

I tend to, you know, I'll review my report to make sure that I refresh my memory with what I said. They're certainly gonna ask you about that one way or another.

Noah Bolmer 18:44

Sure.

SPEAKER_01 18:45

And if there's any other experts or remote reports, I'll go through those again also. Just so I'm familiar with that. Because again, you know, I it's gonna they'll probably rely on that their own experts' report to try to throw something at you to say, well, you know, you said it's gonna be 20 bucks, and our guy said it's gonna be, you know, thousand dollars, and this is you know, you you disagree with this because they said this, whatever, you know, so kind of familiarize you with it. It doesn't jump you, you know, you're not you're not surprised all of a sudden, oh, why is he saying that? You know, uh you know, and in the back of your mind, you can kind of start to formulate what your response would be. You know, we say, Oh, you know, they failed to take this into account, or you know, they didn't look at this properly, it should have been this way, it should have been that way, you know, that type of thing. Or, you know, where you got your information from. We did, you know, like that that criminal case was was eShap related. And one of the charges was they drove a piece of uh mechanicalized equipment, a bobcat basically, on top of asbestos floor tile. We drove it back and forth. And EPA was charged with a criminal charge for doing that. And I knew I knew that wasn't right, and I I remembered I remembered it wasn't right, but I couldn't remember exactly why. I'll be honest. Sure. So we went back to the hotel that night and I did a little research on my computer and I found what I was looking for, and there was an EPA document that talks about what's allowed under the aspicious niche app during construction activities. And sure enough, on page like whatever, 16 or 17, there's an entire page that talks about how you're allowed to draw drive specifically, and it mentions you're allowed to drive bobcats on top of this tile, no problem, we don't care. So I was able to, well, it was great because I was able to give that to my attorneys. And you know, when they did the cross the next day, they introduced that as evidence. They put it up and they have these we have a criminal crowd, they have these giant screens everywhere. They put it up on one of the screens, and the guy was down the stand, could you read that for us? You know, and now what do you think about this? You know, like this, that kind of stuff. Like that's that's where we bring value, really bring value to the team.

Noah Bolmer 21:19

Well, speaking of interesting cases, do you have any other uh tent poll cases which either change something about the way that you go about expert witnessing fundamentally or reinforce something that you are already doing?

SPEAKER_01 21:31

You know, one of my earlier cases was an insurance case for a contractor was involved and he he was accused of contaminating this big mansion out on the end of Long Island, one of these big, you know, Wall Street guys, the $50 billion uh, you know, mansion. And I was able to figure out things that they had done previous to this contractor doing work on the house. That caused as much of a problem as anything else. And they were looking to, they were looking for millions of dollars. They wanted to basically cut this place out. And we put all these items on the table to basically say, you know, then they had them subpoena one of these other contractors for their files. They didn't, they didn't, they didn't put them on the stand, but we had their files. And they were able to question me to review those files. They introduced those files into evidence. And I was able to review those files was basically say, you know, a month before this guy did anything, you hired this team to come in. And if anybody contaminated anything, it was these guys. Because this is what they did. It was great. And they settled that night. And you know, and then the insurance carrier would have some kind of representative there. And a few days later he called me and said, Yeah, look, they they knew there's no way they were gonna get a favorable, you know, uh, after all this information we put on the table. So that was good. So that that kind of taught me, you know, don't just look at one angle of it. Like really dig, you know, like if you if you if you if you think there's any possibility that there's additional data you can look at or additional information that you need, dig for it. The answer might be no. You know, it might be a dead ending, not gonna do anything, but you know, there could be some good stuff there, you know. Um, and the benefit of the doubt, you know, I mean, you want to you want to make it so it's not a slam dunk, you know. So if you can put uh again, you can put that, you know, oh, maybe there might be an issue here, you know. Uh I think maybe the experts might not agree with you, but I think the attorneys, especially the attorneys that have a lot of trial experience, they know, you know, these cleaners guys know, ooh, they're gonna start bringing a lot of doubt here. You know, this is not gonna be an easy one to win. So there'll be more, they'll be more inclined to settle in a favorable fashion to your clients. You know, maybe you take a little less money, you know, make it a little more simple. Um, you know, again, no, each each case is different, obviously. You know, uh we do a lot of um, we've been doing a lot of cost recovery cases. Because obviously everybody wants money, so it's it's you know, they're they're attractive cases for the attorneys to take. Um, and under the regulations, there's there's multiple avenues to bring third-party cost recovery suits. Um, so you know, again, everybody wants money, you know, but uh they really do, you know. It's like the subrogation, the way subrogation works, you know, this person's not giving you enough money, and you're after that person, you know. Uh, you know, and it's not even that person, it's that person's insurance carrier. So it's an insurance carrier against insurance carrier. And they, you know, and they all have budgets, and they all, you know, like uh, I'm this high, I'm gonna go that high, whatever, you know.

Noah Bolmer 25:18

Do do you primarily represent uh defendants? Pretty much exclusively. Exclusively, almost is that ever a liability to no?

SPEAKER_01 25:26

I mean, look, you know, if you testify, usually the first hour is, you know, them chewing you up for your background, your education, your life, your mother, you know, uh uh, you know, the fact that you only represent defendants, you know, what you charge, you know. Um, but just as a and it's not even the policy, like Rude doesn't say, Oh, you can't represent plaintiffs, because we do at times, you know. The thing is, most plaintiffs don't want to pay to hire, you know, good experts. Um, and just my personal stance on this, you know, I hate working for homeowners and property owners. I would not want to make a living doing that. You know, people just don't, they just don't understand, I think, how this whole thing works. And, you know, I've had some really wacky plaintiffs come to us, wanting to hire us, and everything, I don't think so. You know, like I don't want to get involved in that, you know. I don't know what you're thinking here, but we had a guy. I mean, for example, you know, I did a I did a favor to an attorney that I knew. She'll know there's a fire in this guy's house that was mainly a smoke fire. Big place, hired a guy to come in and hand stein all the woodwork. Well, you put all his rags in a metal can at the end of the day and went home. Most people, a lot of people don't know, but when you do that, those rags will self-combust. Okay, so that's what happened. So the house is completely filled with smoke. So this guy sues. The insurance carrier went in, they offered 20 different things to clean the house, you know, restore it and get it back to where it needed to be. So this guy, this homeowner goes out and hires this indoor air expert from I think Oregon, who rang up like, you know, $60,000, $70,000 in the middle of writing this expert report. That was one of those reports where all it wants is photocopies of other documents. So I didn't want to pay him. But his his conclusion at the end of the report was basically he had to tear the house down. Because these these micro particles of soot got into everything in the house, and you're never gonna get them all out. So because of that, you gotta tear the house down. So they got they went to mediation. The guy you never get paid, he never showed up. You know, the guy's got nobody there to take his sign on stuff, you know. Uh, but just kind of showed me like, hmm, again, you know, not when I work on homeowners, you know, like and they and they get wacky. Some of the wackiest people, you know, uh I can tell you stories, I won't get into it, but I can tell you stories, you know, where even working for the for the defense, like the homeowners are just strange, you know. Uh it's not what I want to do for

Class Actions And Exposure Differences

SPEAKER_01 28:19

a living.

Noah Bolmer 28:19

Sure. Let's talk a little bit about class actions. I see that you have been involved in some class action cases. Yeah, how is that different for an expert witness? Does that change any fundamental part of the job or is it business as usual?

SPEAKER_01 28:34

I would say it's it's and from what we do in our expert area, it's pretty similar. It doesn't change a lot. You have to kind of be aware of the fact that you're gonna have different endpoints. So, you know, like I did a I did a school district related class action, and that's so there was you know multiple plaintiffs involved that they had signed up. I think it was like 15 or 16 different families, and you had to put the time in to really kind of try, at least try to understand, you know, with any differences between those parties. You know, they're all living in the same town, same kind of house. Or was it was there, you know, substantial differences? Uh and I'm not talking like background, you know, income, yeah, kind of stuff, but just when it's an exposure situation, you need to understand, you know, where these people are, what kind of housing they have, what kind of exposure scenarios they might have seen, you know, what are they claiming how they're how they got exposed, where they got exposed, and try to come up with similarities and differences, you know, because they're gonna be arguing, they're gonna try to argue it's a unified class. So there's gonna be some commonality among the party. Right. You know, um, and you know, if you can point out that that's not the case, it's good to know. It's good to have that information. Like now another weird case, you know, we were able to we were able to demand that they test the residences of all the parties. And I know it's class action is still giving unlimited number, you know, of plaintiffs, but they had maemed, you know, to get their get their class action uh certified. And the the levels of contamination in most of these residences was higher than the buildings and the exposure scenarios that they were putting in their case. So didn't go the case didn't go too far.

Staying Organized And Setting Deadlines

Noah Bolmer 30:32

Let's back up uh to a couple general questions. When you when you first get engaged, you sign the engagement letter, how do you start off on the right foot and maintain that momentum throughout the engagement, make sure that everything goes smoothly, that you're communicating with your attorney. What are the important aspects, the important factors in a good uh expert attorney uh relationship?

SPEAKER_01 30:55

I I keep a running inventory of everything we're doing. So when they send me documents, whatever it might be, you know, I'll start an index of those materials. So I can provide that to the attorneys to say, so far, this is what you provided me. If I'm looking for additional documents, the same thing, I'll have one list that I keep again running list of, you know, these are the things I'm looking for, you know, so I can update them and remind them, you know, don't forget I'm still looking for this and looking for that. So again, just to make sure we're all on the same page with you know what I think is important that we review.

Noah Bolmer 31:30

Sure.

SPEAKER_01 31:30

And if it's you know additional costing information, or you know, if one of the reports mentions a document that somebody might have looked at, or you know, they were they referenced something that I think would be good to have, you know, we'll call that out and put that on the table so everybody knows about it. Uh, you know, and I think that's that's a good way of doing it. And then I like to get deadlines in writing. So, you know, if they're saying, okay, you know, we're gonna need an expert report, I'll say, okay, I'll have it done by this day, I'll have the draft done by this date. You know, is that that meets your schedule? And if it is, uh, you know, email or a quick letter or whatever, you know, just showing how that, you know, formalized. That's what we're doing, so there's no surprises.

unknown 32:09

Right.

SPEAKER_01 32:10

You know, and when somebody coming back and say, you know, you're leak with something, and I said, Well, I told you it was the 15th, it's only the 10th. Well, you know, you need a quicker? Let me see what I can do. You know, I don't know, I won't refuse to do it. I'll just say, you know, that's the only case I'm working on. I got a bunch of other stuff going on. I'll be more than happy to prioritize. It's important to you, you know. I'll work this weekend if I have to. I will get this done for you. You know, um, and most of the attorneys are pretty good, you know, they understand um with stuff. And I think and I think everybody appreciates being organized so they know, you know, what they have coming up. They're trying to find stuff. And it makes it easy for them too, because if you go to them and say, oh, okay, you know, please go to the plaintiff counsel and request these documents. I don't think it's easy for them because they just cut and paste and shoot email. You know, they don't have to go digging through everything trying to figure out what they're supposed to ask for. You know, um, so I think that helps them too on their on their own.

Red Flags That End An Engagement

Noah Bolmer 33:16

Similarly, are there any red flags either during the initial conversation or during the engagement itself that really make you think, uh-oh, this maybe isn't headed in quite the right direction?

SPEAKER_01 33:28

You know, I've only I've only worked on one case where I wanted to get out of it. And I ended up having a long discussion with the attorney saying, you know, I just I really don't feel comfortable with this. And it was a landlord, pretty big property owner. And I got a ref through a reference, this attorney claw, but he wanted me to get involved. Usually, a lot of questions back and forth. Um, some tenants were suing for for habitability issues and exposure issues, and at first cut didn't seem that unreasonable. And then they sent me their first discovery, which included a whole bunch of photos and some videos from inside a couple of these buildings. I would assume, you know, it's uh and I just couldn't uh there's just no way I couldn't, you know, I could stand in front no matter how hard I thought. There was just no way I was gonna be able to testify that this was a reasonable situation. It was rare, you know. Um, so I said I'm not gonna charge you, but you know, my advice is settle this out as quick as you can, you know, uh, because uh I'd say that the stuff they send me, you put that in front of a jury, no one's not gonna no one would not convict this guy. It was that bad.

Final Advice On Writing And Credibility

Noah Bolmer 34:59

Before we wrap up, do you have any last advice for expert witnesses or even attorneys working with experts?

SPEAKER_01 35:06

You know, just you know, again, I think, I think getting getting organized, you know, getting getting a good punch list together, get an index together, take the time to talk to your experts. You know, don't don't just say, yeah, I'm gonna do this. You know, like set an hour aside, go through the case in detail. Like, you know, we need to understand as much detailed information as possible so we can help you out. And for you know, for consultants that are a little newer to the game and they're trying to get into this thing, you know, don't be so nervous about it. You know, if you if you if you know your your your uh your your specialty, you know, go for it. You know, I mean just uh again, just get organized, make sure you're comfortable with the cases that you take. Um, you know, the better attorneys will help you out, they'll prep you, you know, they'll work with you to get you where you need to be. And you know, it's it's to their benefit that you know turn out to be a good expert witness for their case, but it does go to trial. Improve your writing skills. I can't stress that enough. You know, this new these new generations of kids that are coming up. Can't write a thank you note. You know, I mean, I don't know what they're teaching them. But you know, some of the stuff you read, you'd be like, How did you know, like, where did this come from? Like, you know, this is bad. You know, like you know, you might have an engineering degree, but you can't write a sentence. You just you just you're not gonna be an expert witness. You know, you're not gonna be able to put these reports together. You know, they have to read well. Right. Um you know, proof your work. You know, you do something, you put it together, set it aside for an hour, go back, go through every line. You know, you don't you do not want any errors in these documents. You know, every error, every mistake, every typo, it all makes your credibility re reduced. You know, they documents gotta be tight. You know, you gotta spend the time to go through. Get somebody else to look at them. You know, we have a technical editor in our firm. And lots of times when I'm done, done, done, I've been through it so much I can't go through it anymore. I'll send it to her, you know, and have her go through it. Make sure I'm not missing anything in my punctuation or you know, a comma, or you know, whatever, you know. Uh and I think it matters. Not all attorneys, but a lot of attorneys are very good writers. Appreciate well-written documents.

Noah Bolmer 37:44

Absolutely sage advice. Mr. Elmendorf, thank you so much for joining me here today. Anytime. And thank you as always to our listeners for joining us for another edition of Engaging Experts. Cheers.

SPEAKER_00 37:56

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