In this episode…

While there are certainly pitfalls in any nascent technology, AI is emerging as a useful tool for expert witnesses, according to our guest, Mr. Thad McIlroy. He believes it can be a valuable research tool, when properly fact-checked, and checking for repetitive statements and logic errors.

Check out the whole episode for our discussion on the joys of expert witnessing, billing concerns, and getting to know your attorney.

Note: Transcript has been lightly edited for clarity 

Host: Noah Bolmer, Round Table Group 

Guest: Thad McIlroy, Principal at The Future of Publishing 

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today’s guest is Thad McIlroy, an author, consultant, and expert witness specializing in AI marketing and social media. He has published or worked on over eighteen books and five hundred articles and consulted on topics including incorporating AI, digital publishing technologies, and beyond. Mr. McIlroy, thank you for joining me today at the Round Table.  

Thad McIlroy: Thank you, Noah. Thanks for inviting me.  

Noah Bolmer: Of course, let’s jump into it. You have a strong background in publishing and AI. How did you first become involved in expert witnessing? 

Thad McIlroy: That’s a good question. I was looking at my files in preparation for our discussion. It came out of the blue, as I recall, I was working here in San Francisco in the 1990s, and there was a complex patent litigation having to do with a printing- a device that’s used in the printing industry, and it was one that I was familiar with, and they somehow tracked me down. And it was so much fun. Not everybody who’s an expert witness thinks of it as fun, but I had a ball on the first one and was intrigued by the process. From there, I’ve been doing it for thirty years.  

Noah Bolmer: I often hear that expert witnessing can be pretty fun. It can be side work to your regular work. In your case, you are still a working professional who does expert witnessing. There are also professional expert witnesses. Tell me about that. What’s fun about being an expert witness? Why do you enjoy working as an expert witness?  

Thad McIlroy: I tell people that it’s a sport. It’s the ultimate jousting, and it’s all based on words. Being an author and a publisher, I love words and using them creatively and expressively. But I also use them as weapons, and that’s part of their power. Expert witnessing is very much involved with words as weapons. 

Noah Bolmer: Of course. You are an AI expert. As an expert witness. What is your perception of the fairly nascent technology as a tool for expert witnesses? We can dig into that talk about expert witness reporting, we can talk about the way that you have to communicate with people in general. To what extent should expert witnesses be exploring AI and what are some of the perils that are involved in using AI? 

Thad McIlroy: Let’s get the perils out of the way because then everyone gets concerned about those understandably. My approach is to say I don’t diminish the perils, and I don’t diminish the problems. I like to be right up front. Yes, there are problems. This problem could be the end of mankind, for example. Once you get your head around that, you can either go home, which some people choose to do, or you can say, “Alright, I understand the perils now. What can I do with it?” I do recommend to people that before you dismiss it, find out what it can do that’s positive because we can easily delineate what the risk [is]. In terms of the positive applications for AI throughout the expert’s job trajectory or workflow, let’s say, it’s an amazing tool for research. People are talking about the hallucination problem, and there is a hallucination problem where you have to fact-check what AI gives you. It’s amazing what it gives you. It gives you responses that you would not find in any other place.  

Noah Bolmer: Before you move on, would you explain the hallucination problem to our guests who are not familiar with it? 

Thad McIlroy: What happens in this famous law case that everyone references is where a lawyer didn’t double-check what he was getting back from ChatGPT. ChatGPT, because [of] their language models, they are not search engines. They’re not fact engines. They conjure up language in a way coherent and seems like a factual response, but if they don’t have some facts, they’ll just make it up. So, you have to [ineligible] everywhere on that stuff. 

Noah Bolmer: One of my most recent blogs for Round Table Group was an evaluation of different grammar software and kind of grammar assistants in writing assistant software, some of which are aided by AI, and AI tends to be a paid feature where you pay for a certain number of prompts or something like that, and it will do exactly what you’re saying. Kind of evaluate the overall tone or the overall logic you stated or the overall writing of your expert report. One of the problems I was running into was while it did a great job finding a nice professional tone that was simultaneously readable for people who might be laypersons, it also had the problem of sometimes changing the content in a way that I would- I would be concerned if I was say, an engineer, or if I were doing something that was extremely crucial, that what I was saying was being reported in that way. How can experts enjoy the benefits of AI without running into some of the pitfalls of AI? 

Thad McIlroy: That’s a great question. I’d love to read your blog post. Please send me the link, and I’ll look at it. I’ve studied grammar and spelling-checking for a long time, and everyone wants to believe that these jewels are great. They’re not great. They’re pretty good. The complexities of the English language are so vast, and you see it even with spell checkers. It comes up with just the wrong word where- in you know in context, how could you possibly suggest a particular word? When it comes to grammar it’s far more complex. The challenge it’s facing is- it’s not an excellent tool. It’s a useful tool, and again you need to be a very knowledgeable user to detect when it’s not being helpful or when it’s suggesting something that’s simply incorrect. 

Noah Bolmer: Would your recommendation be to use it but remain vigilant? Is that correct? 

Thad McIlroy: Very much so. 

Noah Bolmer: Let’s [go back] to some of those phone calls, not necessarily your very first expert engagements, but some of the initial times. Let’s talk about what you like to discuss on the phone. What are the things that you talk about with your engaging attorney to make sure that you are the right person for the job and that you have all of the information that you need? 

Thad McIlroy: When I thought about it, I was thinking how often am I able to get hold of the initial filings before the call? You don’t always get hold of those filings. If you do, hallelujah, because you’re going to be so much more knowledgeable and informed in that first call. I’ve had calls where they gave me just the scantest information. You’re going into it a bit blindfolded. But my feeling is there’s a competitive marketplace. They’re interviewing at least two or three other experts. You’ve got to be thinking, what is it that I know is unique? What is my special sauce and communicate that to them. Either that your special sauce has value, or it doesn’t. You can’t control that, but you’ve got to explain what it is that makes you uniquely skilled. 

Noah Bolmer: Do you think there’s a potential pitfall for newer expert witnesses who may want to take jobs because they might not be flooding their e-mail box at all times, but simultaneously needing to stay in their proverbial lane and making sure that they are the right person for the job? How do you navigate the need the need to get work with making sure that you only take work that is appropriate to you? 

Thad McIlroy: I’m careful about that. I have a lot of faith in the attorneys I’ve worked with, [they are] great people. Usually they were sole practitioners, but any of the larger firms I’ve worked with, I’ve been mostly amazed at the skills or talent. I feel they know how to do their side of the job and if I come on too strong you’re going to see right through that. I’ll seem needy and desperate. I’ve got to be a little bit aloof in these things, even though, yes, I’d love to get the assignment. 

Noah Bolmer: Without naming names, what are some of those issues that you’ve run into with attorneys? Be they from smaller firms or just not necessarily being the best attorney that they could be, vis-a-vis expert witnesses. 

Thad McIlroy: The one I had was so contentious there was no way to please this person and I couldn’t tell if it was because he was fronting some of the costs himself or I’m not sure, but everything I submitted to him was garbage. “You can’t bill me for this. This is just useless.” Those ones come along. That has been the sole practitioners where I’ve had that kind of a problem. 

Noah Bolmer: Speaking of getting paid, do you have any specific terms that you like to make sure you have in your contract? In other words, do you like to take a retainer? Do you do hourly? Do you do project rates? What are some of the billing concerns and the ways that you deal with them? 

Thad McIlroy: I definitely go for retainers because I think that’s absolutely essential. If you’ve got a prospective client that’s not willing to pay a retainer, walk away now so you don’t get burned later. It’s the professional approach, right? It’s not unreasonable to request a retainer. I have hourly rates. I don’t know-I don’t talk to my colleagues that much because my colleagues are within my expertise. I’m not part of any expert groups, but I charge hourly for the research and reporting and different hourly rates are higher for any kind of court work, including depositions. Courts are the most expensive as it is for most, and then there’s the question of incidentals. If there’s travel, for example, how is that billed? I have a rate for travel as well. 

Noah Bolmer: Is that typical? Do you travel a lot for expert witnessing? 

Thad McIlroy: As I said that, I’m thinking, do I? I used to, not so much anymore. [Maybe from] my bedroom to my living room. 

Noah Bolmer: Have you worked in different venues? Have you worked in different states, federal and state or in other different types of venues with different laws? 

Thad McIlroy: I’ve only worked in the US, and I did a couple in Canada. I have worked in multiple states. Usually when there’s travel involved, it has to do with a deposition in a different venue. I had one wonderful client who wouldn’t hire me without me flying to Texas on short notice to be interviewed by their client, which was very formal, but it led to a wonderful assignment. So, their rigorousness was something that I appreciated. 

Noah Bolmer: Are there any issues in crossing into a state and having to know a different body of laws or anything that expert witnesses need to concern themselves with when working in a venue that’s not necessarily the same venue they’re accustomed to working in. 

Thad McIlroy: Good question. In my experience, I just leave that to the attorneys. Tell me what I need to know. If they can’t supply that information, there’s something wrong. 

Noah Bolmer: Do you find that expert witnesses should take a more proactive approach in making sure their attorneys do relay any of that important information, or do they typically do that just as a matter of course? 

Thad McIlroy: That’s a good question. We’d like to say they do it as a matter of course, knowing that sometimes they don’t. The one where I really see them getting sloppy is on rehearsals for depositions. They’ll cut corners on that, and it comes back to bite me and them. The last deposition I did was unsatisfactory in the end, and I thought that’s because that I wasn’t properly rehearsed. If they’d given it another six hours of rehearsal, we could have avoided the problems that did occur. 

Noah Bolmer: Tell me about what works in a rehearsal. What are the preparation techniques that you find effective for going into a deposition?  

Thad McIlroy: It’s up to the attorneys to figure out what’s the worst question that you could screw up the answer to. Of course, it’s not just one, but they know what the lawsuit is contingent on, and they should be drilling down with all kinds of questions around the edges of where things most revolve around. They should also be beating you up, because that’s so important. They should be slapping you around, punching you in the face, depriving you of water and air because that’s the proper preparation for a deposition [laughing]. 

Noah Bolmer: Mock depositions are useful to you. How about mock cross-examinations? 

Thad McIlroy: I’ve never gone to trial in twenty-five to thirty years. I did a briefing to a judge once. None of my cases have gone to trial. 

Noah Bolmer: How does that affect you as an expert witness? Do you set your perspective hours based on it probably going to settlement? How do you estimate how much time you need to schedule to work on a case when it might go to settle? In fact, when it probably will settlement. 

Thad McIlroy: I am a freelancer. I work for myself, I’m a consultant. I’ve been doing that for many years, so time is ephemeral and it’s something where you have to be very flexible. The good thing is you always know I’m getting 10 more hours here. Ching, Ching, Ching, Ching, Ching. Even if those are going to be stressful hours, so I just try to work with the attorneys as best I can. I had one last year, I was on vacation in Hawaii, and they were unforgiving about that so from my Hawaiian beachfront hotel I am typing away and taking calls. so it can be stressful, but you’re being well compensated. 

Noah Bolmer: You’ve been doing this for a while now? How do you think the role of the expert has changed in the past couple of decades? Has there been anything significant that has changed, be it technology, AI or anything like that has fundamentally changed the way that you approach expert witnessing? 

Thad McIlroy: It’s a great question and the answer is no. It should be yes. Right, I mean, in 30 years, things change, but publishing is conservative. The law is extremely conservative. Things don’t change a whole bunch. To have introduced Zoom into the process of law is not a fundamental change in what actually takes place. It’s just a venue shift. It’s the extreme seriousness with which you have to approach your work. You can never get sloppy. You can never get careless. That has always been the case. 

Noah Bolmer: Have you done a good amount of Zoom depositions and Zoom work in general or remote work? Obviously Zoom is just kind of shorthand for remote these days. 

Thad McIlroy: Just a bit. Actually, the last few cases I’ve had have- I’m trying to think. Well, one of them didn’t involve any face to face. So yes, that was a Zoom case. Yeah, that’s true. I guess that was my first one where there was no face to face. It wasn’t a huge case, but, yeah, I’m seeing that ship. What I’m mostly seeing is where it is- it’s a hybrid. If the XYZ person is in Alaska, ok, we’ll do the Zoom. If they’re in Chicago, we can fly them in. Because face to face on a deposition is far more effective. 

Noah Bolmer: Do you find that you need to change your demeanor or affectation, or even your dress when you’re appearing on camera rather than in person or is it essentially the same? 

Thad McIlroy: I dress up for school, I wear my Sunday best always to convey appropriate professionalism. 

Noah Bolmer: Do you have any stories about either depositions or certain engagements that have fundamentally changed the way you think about expert witnessing, changed the way you prepare, or have been in some way an important milestone to the way that you act as an expert witness? 

Thad McIlroy: Again, a great question. There’s this strange balance between factuality, let’s call it, and legality. Some cases really do depend on certain facts being established and not rebutted successfully. [Many] of them twist around the angels on the head of a pin. It’s tough for the expert to anticipate how the angels are going to be dancing. I find that a good rapport with the attorneys is really necessary to get their nuance and their depth of understanding around that. With each case, I realized how little I know about the law and how important it is to have great counsel working on your side. 

Noah Bolmer: Is it important that expert witnesses know the law even a little bit? 

Thad McIlroy: I- you know, a little knowledge is a dangerous thing, particularly when it comes to law. I don’t intend to study it in the evening. 

Noah Bolmer: Let’s talk about that relationship between expert witnesses and attorneys. What makes for a good, or even a great engagement? What makes that relationship between expert witness and attorney successful? 

Thad McIlroy: It’s a delicate balance between the realization that this is a bunch of humans getting together. These are real relationships, not being formed, but there’s an extreme degree of professionalism that’s essential. I do like to keep in mind that these people are not your friends exactly. Over a long engagement- and I’ve had some that go for years, you get to know them and a little bit about their families, their hobbies, their vacations, and this and that. I think it’s important to allow that to happen and let them get to know you as well. But at the same time there has to be that restraint, you can never get too palsy because that looks bad. 

Noah Bolmer: You said that sometimes you’ve had engagements go on for years. On the flip side of that coin, have you had situations where you feel you just don’t have enough time to fully process all the information that you’re given, and your attorney needs a report by tomorrow? 

Thad McIlroy: That should have happened, but it actually hasn’t. Even on the ones where they do need it next Friday, I’ve been able to communicate whether I can do that or whether there are going to be some shortcomings as a result. I’m usually able to bounce one of my regular consulting gigs off to the side to devote myself completely to that case. I’ve managed. 

Noah Bolmer: Have you had any negative experiences as an expert witness? 

Thad McIlroy: I guess what I find most galling is the horrid animosity that attorneys so often engender on the opposing side. You get some nasty sons of- to just- it’s like I’m a human being. What did you just say to me? What did you just do to try to demean me publicly in front of this small group? And you think, “Come on, this is a profession. We’re all professionals here. There’s no need for that kind of language.” The attorneys on my side usually pick up on that, but half the time they’re being similarly nasty. Sometimes feel I have to speak up and say, “That’s uncalled for. That’s inappropriate.” [They’ll say], “I’ll be the one to judge what’s to be blah, blah, blah.” You know it’s, “Okay, onward.” 

Noah Bolmer: How do you mentally prepare for those eventualities that frankly, I’ve heard from a lot of expert witnesses?  

Thad McIlroy: I bet. I bet. Extreme preparation, it’s so that they can’t rattle you on your own, on what you know and what you’re trying to express. Again, that’s with the rehearsal. When I’m completely prepared, I’m not nervous. When I realize going into any kind of an assignment where I haven’t done all my homework, then I can be easily rattled. 

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses and in particular newer expert witnesses? 

Thad McIlroy: The main thing that has been valuable to me is being registered with a number of different networks, because my work has come in from six or eight different networks. I’ve had stuff come in from all over the place. And keeping your resume up to date on each of those networks is important. It looks horrible if they see something like a four-year-old resume. That’s been the main source of success, if volume equals success. 

Noah Bolmer: That’s interesting with regard to your resume, are they publicly available and do you harbor any concerns that anything that’s written? You are obviously an extremely well published author. Do you harbor any concerns that these things might be used against you to impeach your current opinion on something in the future? How do you keep track of your resumes, your articles, blogs, interviews, and everything you’ve ever done to make sure that you don’t accidentally contradict something you’ve said in your entire life? 

Thad McIlroy: I have been caught on that. I have been impeached on something that I wrote 12 years ago. The attorneys that I’ve worked with have been very good about going into the database and reading through what I’ve [said]. They asked me to highlight things that could be of concern, which I do. I take a fairly broad view of what could be of concern. But that is a problem. I guess that’s the other part of my advice. You need to have a solid online presence to be a credible expert. I’ve got a website that I’ve put a lot of work into over multiple decades and continue to refine. I’m in a redesign right now because the first thing they’re going to see. They’re going to see your LinkedIn profile and they’re going to want to let go to your website if that doesn’t make them go look solid, you’ve already lost the contest.  

Noah Bolmer: Can AI assist in that sort of self audit? 

Thad McIlroy: Good question. Haven’t used it for that. I’m sure it could. 

Noah Bolmer: Thank you, Mr. McElroy for joining me here today at the Round Table. 

Thad McIlroy: Thank you, Noah. You’re a great questioner. 

Noah Bolmer: Thank you and thank you to our guests for joining me for another Discussion at the Round Table. Cheers. 

Thad McIlroy, Principal, The Future of Publishing

Thad McIlroy is an author, consultant, and expert witness specializing in artificial intelligence (AI) marketing and social media. He has published or worked on over eighteen books and five hundred articles and consulted on topics including incorporating AI, digital publishing technologies, and beyond.