In this episode…

Newer experts benefit from mentorships and observing cases in a courtroom setting, according to our guest, Dr. David Bizzak. Watching experts communicate in front of juries is a valuable and free learning tool:

Go into a courtroom and watch somebody get tested, so you [can] see the interaction with both attorneys during direct and cross-examination, as well as the interaction with the jury, because the juries [are] making the decision. [You] can’t just focus on the people asking the question.

Our conversation goes on to address niche vs. breadth of expertise, quickly assessing the merits of a case during the vetting process and bringing in experts early enough in the case to be fully effective.

Episode Transcript:

Note:  Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: David Bizzak, President at Romualdi Davidson & Associates

Noah Bolmer: Welcome to Discussions at the Round Table. Today, I am excited to welcome Dr. David Bizzak to the show. Dr. Bizzak is the President of Romualdi, Davidson & Associates a full-service forensic engineering firm. He specializes in a range of areas. Including product design, automotive defect investigation, property loss, and more. Dr. Bizzak is a certified investigator for the National Association of Fire Investigators and is a registered engineer in four states. He holds a Ph.D. and an M.S. in Mechanical Engineering from Carnegie Mellon. Dr. Bizzak, thank you for joining me today.

Dr. David Bizzak: Thank you for having me.

Noah Bolmer: Absolutely. Let’s jump into it. You are a Ph.D. Mechanical Engineer. Tell me about your path to Romualdi and then I would like to talk about how you first got into expert witnessing.

Dr. David Bizzak: My path to Rimoldi occurred while I was doing graduate studies at Carnegie Mellon. One of the professors. John West, who had an extensive background in munitions from the military, served as an expert for Romualdi, Davidson & Associates in firearms cases. He and I started talking and he was telling me about some of his cases, and he recommended, “Maybe you ought to look at this.”

Noah Bolmer: So, did he show you the ropes? Did he give you some good advice when you first got started? Many of the experts that I interviewed were called out of the blue the first time. It sounds like you may have had a leg up.

Dr. David Bizzak: He gave me a background of what it entails to be an expert witness. Reviewing the information, doing examinations of products, writing, or testifying. A general feel for what was going to happen.

Noah Bolmer: So, you were ready the first time an attorney contacted you and peppered you with questions during the vetting process.

Dr. David Bizzak: I do not know why I was ready the first time I testified. When I came off the stand, I had sweat stains down my armpit because it was such a stressful environment for me to do the first time.

Noah Bolmer: How long how long ago was that?

Dr. David Bizzak: That was almost 30 years ago.

Noah Bolmer: You have been doing it for a while. Since then, let’s talk about that. What are the preparation methods that allay some of those fears, anxieties, and things when you are not sure what to expect? Even with a mentor, you still had a little nervousness and anxiety going into the process. What are the things that help you as an expert witness become more comfortable with the entire process?

Dr. David Bizzak: I would say before I testify the first time. It would be nice to go into a courtroom and watch somebody get tested, so you see the interaction with both attorneys during direct and cross-examination, as well as the interaction with the jury because the jury is the one making the decision. You cannot just focus on the people asking the question. In my experience, even though I have testified probably 250 times, every time you go you get nervous about it. I have a trial coming up next week and I was in a prep session today going over what we are going to cover. One of the things that I find that helps me get settled down is to go through and develop a testimony outline or script. Here are the questions. Give it to the attorney. He can add or she add or subtract from it. This is what we are going to talk about. This is the order it is going to be presented and you will get a comfort level answering questions. There is nothing more disconcerting than giving somebody an outline like that. The first question is what are your opinions about the basis before we get to that? That kind of throws you off when that happens.

Noah Bolmer: Sure. Your field is broad. What does it mean to you to be an expert? You are an expert across not only multiple areas but multiple states. How do you maintain that level of expertise when being vetted by an attorney or an associate of an attorney? To be an expert on a case, how are you able to answer not only what you know but answer with a large body of knowledge?

Dr. David Bizzak: Much of that comes with time and experience. The first cases you handle might be insurance claims where you are going out looking at water losses. Then you start identifying and investigating, for example, supply hoses. Soon, somebody calls you and says, “I have a water loss at a home and the people were away on vacation.” “What kind of hose? Was it stainless steel?”  “Yeah.” “Did they have play around there because you have seen it and know what is happening? The sad part about this job is when you feel you are an expert, it is time to think about retiring. You are an expert when somebody calls you and says, “I had this accident.” And you tell them, “I do not need to look at a piece of equipment. I know exactly what happened.” You explain it to them, and they are amazed. I have seen it before, and I know what happened.

Noah Bolmer: When you are first getting into the process as a younger expert, do you recommend having more niche knowledge to get your first few engagements?

Dr. David Bizzak: I would say you want to be as broad as possible, Okay? Because certain experts have one area of expertise unless you have a nationwide group to parlay that knowledge. You are not going to get too many cases and each case that you do adds to your knowledge base and credibility. It is not like you are going to start day one doing all of this stuff. It is things that I accumulate over time. I did not do fire investigations for the first five or six years of my career. I started doing structure fires because somebody asked me, and I have colleagues who specialize in that. I decided I am into cars, and I am going to do vehicle fires. The first few vehicle fires were a learning experience. What was I looking for? You may make some mistakes along the way, but as you accumulate experience. “I have seen this before and you get more confident in your opinions.

Noah Bolmer: So, as an experienced individual, the vetting process is a two-way vetting process, right? You must decide whether you want to take the case. Whether they want to engage you. What is the calculus that comes into that? Do you turn down a significant number of cases?

Dr. David Bizzak: Yes, what I do for clients, if they have something they want me to take a look at, I will ask them for some preliminary information. They may have a police report. In an accident reconstruction, they may have some photographs of a failed product or some background about what happened. I go through and do triage, look at it, and say, “I do not think there is something here I can use to help you render an opinion. I can look it up, but I do not think this is worthwhile for me to engage in.

Noah Bolmer: How far along in the case are the lawyers or lawyer’s representatives? Typically, when they bring you on, is it at the beginning of the case or somewhere in the middle?

Dr. David Bizzak: It can vary. There are instances where I may be brought on within days. I mean the earliest I ever had an accident was at the site of an accident. Two hours after the accident.

Noah Bolmer: You are kidding.

Dr. David Bizzak: That is rare. There are other times when something maybe 10 years old and depositions have been taken. There is nothing to look at except the record that has been established from inspections, photographs, and so on. So, there is not a set time that I would say is normal.

Noah Bolmer: Now, I have heard from other experts on occasion that they would prefer to be brought in earlier in the case, and it can be a bit of a detriment, or a disservice being brought in a bit later in the case. Has that been your experience as well?

Dr. David Bizzak: Yes, because there are certain things that you would want. Information like I have a case right now where a truck drifted forward and pinned somebody. The truck was supposedly examined afterward and there was no problem with it. I was not there. There are no photographs. I do not know if anybody checked the adjustment of the parking brake and the condition of the parking brake. So, I cannot render an opinion because I do not know, and it is too late now. You cannot go back and repeat that.

Noah Bolmer: Right. They probably should have brought you in earlier. Does that happen a lot or is that just an occasional thing?

Dr. David Bizzak: I would not say it happens often, but it is not uncommon.

Noah Bolmer: Besides being an expert in your area, what makes an expert particularly compelling to an attorney? What are the other attributes of a good expert witness?

Dr. David Bizzak: In my estimation, what makes a good expert is somebody who has a command of the technical issues and can boil it down into simple terms that lay people on the jury will understand. I like to use many examples. For example, if you are talking about the coefficient of friction, what is that? Well, let’s say we have a one-hundred-pound box, and I am trying to push it across the floor. It takes forty pounds to push that box. The coefficient of friction is just 40/100. Something easy for them to understand. The other thing is when you testify, whether it be a deposition or a trial, you pause before you start speaking and digest what is being asked, being able to process that and come up with an answer based on your knowledge. It is also not being afraid if somebody asks the right question, that you are going to give the right answer. “Would Ms. Smith have seen the motorcycle if she looked before she pulled out?” “Yes, she would have. It was within her field of view.”

Noah Bolmer: So, always answer truthfully.

Dr. David Bizzak: Yes, I know many experts hate to sit there and admit that “No, I do not know” because they think that says that I am not prepared or whatever. There are instances where “I do not know” [is] “I cannot know because the information is not available.”

Noah Bolmer: Do you do mock cross-examinations to prepare for some of those difficult questions?

Dr. David Bizzak: Early in my career, there were instances during trial prep that would take place when I went to trial. Now, I would say that it is rarely done, but there are instances with some clients who give themselves a sense of security in terms of how the trial is going. That they want to subject you to that and say let’s sit down and spend an afternoon going through this?

Noah Bolmer: Sure, when they are early in their career and sweating like you were saying before. Besides, knowing your material, being comfortable with the report that you have written, and understanding how to answer the questions truthfully. What are the other important aspects of being a good expert witness when you are on the stand when you are giving testimony, when you are talking to people?

Dr. David Bizzak: Well, like I said, you want to be able to relate to people on the jury. You do not want to look over at the jury when you are talking or giving an answer, and you see people sleeping, their eyes glazed over because you are using terminology or concepts that they do not get. One of the things that you do not want to do is use acronyms. Engineers often like acronyms and everybody in the business understands those acronyms. The people sitting on the jury do not understand what an Event Data Record (EDR) is. You need to explain what that is. How it works in a car? You need to break things down, just like you are teaching a class. That is why many good experts are professors who routinely have students in their class, and explain concepts to them, and they are more capable of explaining. Meaning that you are using terms that they might understand.

Noah Bolmer: When you write your report, are you ever given a skeletal outline of it or are you developing it whole cloth?

Dr. David Bizzak: I routinely get nothing from my clients. In terms of desires, they may suggest, “We need to make sure you address these two or three items,” but I put the report together. I will run it by the client, who may have some comments, like “I would like you to expand this or clarify this.” It is the same as testifying. When you put a report together you must realize that this may be read by somebody who has no background or knowledge of the topic that you are talking about, or the circumstances of the accident or incident, so you need to have a report that stands. That is all.

Noah Bolmer: Sure. Do you have maybe an engagement or two that you can share with us that has either informed or changed the way that you approach expert witnessing?

Dr. David Bizzak: I would say something that had a profound effect on me was I worked for an attorney in California who had about 50 years of experience, and every time we got together, I gathered a bit of knowledge. One day we went to lunch when I was working for him. He was a defense attorney in a product case, and he explained to me that with product liabilities, like insurance, it does not matter about liability. If somebody gets a serious injury. It is like a form of insurance. We spread the cost of their catastrophic injury across several products instead of letting them bear the cost themselves. When we look at this, as an engineer, we are looking at what is the technical answer. What caused the accident? Well, in the big scheme of things, that may not matter if somebody ends up getting seriously injured, it may not matter that it is not the product’s fault. When you go to trial, the jury is going to find the plaintiff and give a reward.

Noah Bolmer: Before we wrap up, I have a question that I ask all my interviewees, regarding winning. Is winning the case important to you? Is this part of the calculus that you engage in when you decide whether you are going to take on a client? Is it important when you are retained that you have won more cases than you have lost?

Dr. David Bizzak: Early on, when I went to testify, my instinct was that I was right. I wanted to see the jury come out and say that I was right, and the other guy was wrong. Many things are not black and white when you go into a trial. Now, what I have come to find from my many years of experience is that an expert may or may not be irrelevant to the outcome. For example, I had a trial in which this gentleman claimed he was injured, and as a result of this injury, he could not raise his arm above his shoulder. I was there for the defense. The accident, as described, could not have happened based on my evaluation. The Plaintiff’s expert said, “No, this piece squirted out of the machine and struck him.” The trial ended with the jury coming back with a defense verdict. What impressed the jury the most was that one lady noticed the plaintiff showed up each day wearing a pullover sweater. If he could not raise his hand above his shoulder, how did he get this sweater on every day? How good you are on the stand may not be what turns the case. What I am concerned about is that my client feels like I did a good job.

Noah Bolmer: Ultimately, that is how you get repeat business, right? Do you stay abreast of the case as it unfolds? Do you always find out where it is and keep track of if it has settled or if it was won or what? What happens afterward?

Dr. David Bizzak: Because there are so many cases open at one time, my staff go through and periodically query whether a case has settled or should be closed. In some of the cases, I will be informed that I am writing a more involved report. We are getting a file prepared, and it settles before it gets the trial. I will know about those but there may be others where I write a report and somewhere down the line there is a mediation, they got scared and it settled, and I do not know one way or the other what happened.

Noah Bolmer: Sure. As people settle, things get decided years down the line. It is hard to keep track, especially when you have so many cases.

Dr. David Bizzak: That is the case. Many times, like a settlement, it comes down to the calculus of money. It depends on how injured the person is. Even though they may not feel they have liability, they do not want to risk going to trial because of the potential.

Noah Bolmer: Do you have any last advice for experts, particularly newer experts or attorneys who are working with experts?

Dr. David Bizzak: I participated in a program put on by the local law school. They had mock trial competitions with law students. Experts would be assigned. These were actual cases, so we took those reports and went through them. A federal judge served as a judge, and they determined which side won. I tried to impress these law students that you must listen to your expert. I told them that I had been in a courtroom more than they would be in their entire career because most attorneys do not try cases every day. I may be testifying 8 or 9 times a year. I know what is important and the questions to ask, based on the technical aspects of the case. I had one student who ignored my advice. When we had a debriefing afterward, they said you should never sit there ignoring your expert because your expert has a better understanding of what is and is not important.

Noah Bolmer: Is that something that you have experienced over the years, attorneys who do not pay enough attention to what their expert is telling them?

Dr. David Bizzak: I have seen that, but most of my clients throughout their careers have listened to and solicited advice and comments from me during trial or deposition preparation. The “What kind of questions should I be asking this witness or that witness?” They realize that “I have to get the information for this guy to write a report and show up for trials.” I want to make sure I get all the information, and I need to understand why that is important.

Noah Bolmer: Right. That is sage advice. Thank you, Dr. Bizzak for joining me today.

Dr. David Bizzak: Thank you for having me.

Dr. David Bizzak, P.E., Ph.D. Mechanical Engineering, CFEI and CVFI

Our guest, Dr. David Bizzak, is the president of Romualdi Davidson & Associates, a full-service forensic engineering firm. He specializes in automotive forensics including vehicle fires, defects, and property loss; and has been an expert witness for over thirty years. Additionally, he is a certified investigator for the National Association of Fire Investigators, is a registered engineer in four states, and holds a Ph.D. and MS in Mechanical Engineering from Carnegie Mellon.