In this episode…

Whether a consulting or testifying expert witness, it is crucial to understand the underlying case. When giving testimony, or responding to the engaging attorney’s questions, a solid foundation is crucial. Our guest, insurance expert, Thomas McCloskey notes:

Now both [consulting and testifying expert witness engagements] require me to do the same steps. I need to see the file material. I need to read it, annotate it, internalize it, and be prepared to be asked anything within the four corners of the litigation. So, it is a lot of reading and a lot of note taking. To get prepared I need to know the case as well as, and sometimes better than the attorney.

He continues:

I start [by] first reading all the filings with the court, and I make notes on who’s doing what [. . .] Then I look at the proofs that they have submitted to the court to see if I agree or disagree. And the whole time I’ve got my trusty legal pad next to me with a pen, and I’m writing questions. ‘Who did this?’ ‘Why are we doing that’? ‘Why did you do that?’ That sort of thing [. . .] I have to put myself in the position of actually being in the middle of the litigation.

Our conversation includes bringing in experts early enough, when to leave an engagement, and avoiding “customer golf.”

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Thomas McCloskey, CPCU, consultant at The Insurance Expert Network

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and I am excited to welcome Thomas McCloskey to the show. Mr. McCloskey is a Litigation Consultant for the Insurance Expert Network. He has testified in over 200 cases and is a contributing author for several training materials, including tax industry publications and courses. Mr. McCloskey is an expert in insurance contracts, operation practice and procedure, and many more. Mr. McCloskey, thank you for joining me here today.

Thomas McCloskey: Happy to be here.

Noah Bolmer: Let’s jump into it. You have been an insurance adjuster and a consultant for decades. How did you get started and how did that transition into expert witnessing?

Thomas McCloskey: I started in claims. My sister was a claims supervisor and needed to have her adjusters escorted into the city, and after a few times of doing that, I started inspecting cars, and that is how I got started. At the end of my career, I was an Executive General Adjuster and worked on a nationwide basis.

Noah Bolmer: Let’s talk about expert witnessing. Is that something you were looking to get into? Did you get a call out of the blue?

Thomas McCloskey: I did get a call out of the blue. I shared a discussion group online involving risk management [and was] asked if I would be willing to serve as an expert witness and I said,  “Sure, why not?” I think it is 17-18 years ago now that we started this. For example, I testified several times in defense of State Farm Insurance and when I was working there, I also had to testify and be deposed on the files I handled. I handled large and complicated files, that would often result in litigation, or my deposition being taken.

Noah Bolmer: I know it has been a while, but let’s talk about some of those first calls. What sort of questions did they ask, and did you feel prepared for your first engagements in the process?

Thomas McCloskey: Yes, it was fine. I do not remember what it was, but it was routine claims stuff. We did not get into exciting things for a while. In 2008, I did my first-class action, where an insurance company was being sued by a large group of people. I was retained by the insurance company to help with their defense.

Noah Bolmer: There are a couple of types of expert witnesses, and a couple of types of jobs you can do as an expert witness. I should say there are consulting witnesses and there are testifying witnesses. Do you have experience with both, and if so, which do you prefer?

Thomas McCloskey: I do not prefer either. I enjoy doing them both. I have been retired for 10 years now, and I do this because it keeps me involved in my profession. It keeps the gray matter stirred in my head and forces me to keep up with the industry. For example, I was a consulting witness for Amazon. We had also done a couple of files where the litigation was already on and I was asked to review our expert reports, write reputable reports, and prepare the attorney to go for deposition.

Noah Bolmer: Are there any real differences in how you approach those different types of expert witnessing engagements? Do you approach a purely consulting expert witness engagement differently than you would one that you are going to testify in?

Thomas McCloskey: They both require me to take the same steps. I need to see the file material. I need to read, annotate, internalize, and prepare to be asked anything within the four corners of the litigation. Preparation requires a large amount of reading and note-taking. I need to know the case well and sometimes better, than the attorney.

Noah Bolmer: What are the strategies you use to acquaint yourself with the case? Do you read and sift through all the long conversations with the attorney? What is your preparation process before you start on the report or when you get everything together?

Thomas McCloskey: I start by reading all of the filings with the court, and I make notes on who is doing what. Then I look at the proofs submitted to the court to see if I agree or disagree. The whole time I have got my trusty legal pad next to me, and I am writing questions. Who did this? Why are we doing that? Why did you do that learning thing? I must put myself in a position of being in the middle of the litigation.

Noah Bolmer: Experts can be called in at any point during a case. I am sure that you have been brought in at the beginning, middle, and the end. Do you find yourself scrambling to get the attorney what they want in time, or do you feel that you are given an adequate amount of time to do your job?

Thomas McCloskey: It depends on the attorney. My pet peeve is an attorney who has known for over a year that they need an expert witness and then send you a large box of material in the last two weeks saying, “Ingest this and get me a report in five days.” It cannot be done, and I send it back saying, “I am sorry, I am not your guy.” I need adequate time to do it. When people give you a short amount of time, I think they are being disrespectful. They assume what you do is so mundane and simple that you should be able to shake all of their papers and prepare an opinion for them. I dislike the attorney on the other side who wants to write my report. I do not play “customer golf”. I will tell you honestly what I think makes my life much easier, [when an expert] goes in for a deposition, plan that the attorney on the other side of the table has looked up every deposition you have given in the last five years. They have highlighted them and will ask you about them. It is like my mom taught me, if you want to tell the truth you do not need a great memory. The attorney wants to write my report. Now, I am sorry, but you are asking me to play “customer golf”. I am not going to do it. This is my opinion, and it is based on this is why I think this. You must see my report to pay my bill.

Noah Bolmer: That is a good pivoting point into ethics. Let’s talk about that for a minute. Is that something that has come up throughout your career? Have you had many attorneys who want to nudge you to say something a particular way or whole cloth to generate a report for you to give them?

Thomas McCloskey: I have had it happen, but I have tried to set that expectation in the beginning. With that phrase, I do not play “customer golf” I will read your case and tell you what I think. I have on occasion called an attorney because I knew where they were going, and said, “You do not want to see a report from me, you just want to pay my bill. You do not want to discuss with me what I think because I cannot support your position. I think you are wrong.” On the other hand, if you leave me alone, I will compile a conclusion that is fair for everybody.

Noah Bolmer: How can you avoid this in the vetting process before it happens? When have those initial phone calls with the attorneys? What steps can you take as an expert witness, and what do you recommend that newer experts do to avoid finding themselves in those positions?

Thomas McCloskey: In the initial meeting, you must clearly state that your opinion is not for sale and that you will tell you what I think. I will not ruin my professional reputation. I have known expert witnesses who have played “customer golf” and they did not last long. Things they say are so intensely stupid that you want to fall over. “No, he did not say that. Did he?” Yeah, he did. It is a good thing to keep in mind. I have been fortunate based on my reports, I can think of three cases where the attorney got a summary judgment. They did not have to try the darn thing. They walked in and presented their case. He stood up and said, “Nope.” The judge said, “I agree.” He sent them away with a summary judgment. I can think of one attorney who was shocked by that. He said in his career he never had one. You must remember that everything you say as an expert witness is available to others. They can look you up online, and they have legal services that can look you up. So, you must be careful what you do or say.

Noah Bolmer: You have been in enough actions that you have done testifying and cross-examinations. Have you ever used techniques like mock cross-examinations? And if so, is that helpful?

Thomas McCloskey: No, I did in one case. A law firm in Austin, Texas, insisted on putting me through that. I later learned the reason. Three expert witnesses were sitting in the room watching, and they told them to watch and learn. It was that type of thing. But no, I do not get that wrapped up in it. I read, make notes, annotate, ask questions, and form my opinion. I try to be comprehensive with my reading and research, which is difficult. Cross-examinations can be good, bad, or incredibly stupid. The difference is I have testified enough and spent enough of my life around attorneys that they do not frighten me. That is a mistake many expert witnesses make. They are frightened of attorneys. In terms of cross-examinations, they come in a couple of varieties. The rude person who has a speech impediment is the most common. They start speaking in the middle of one of your sentences. I only suffer that a few times before I end it. Probably the worst guy I ran across was in Texas and he did that over and over and finally I just treated him like a child. I handed him my pen like you do with kids. [I said], “You hold the pen, talk, and I listen. Then, you give me the pen. I talk, and you listen.” That is a tactic. They will want to shout, yell, carry on, walk around, stand on their heads. Ignore the theatrics. Go ahead. It does not bother me. Another one is the guy who is the snake. He wants to lead you down the garden path and jump out of the bush at you [explaining] “Aha! Is it not true?”  [You say], “No, we never say anything like that. Where did you get this idea?” You cannot prepare yourself for these people. Most are professional and straightforward.

Noah Bolmer: You do background research on the attorneys and experts that you are quote, unquote going up against.

Thomas McCloskey: Overall, Noah, I do not see myself as representing a cause or being anti-cause. My job is to be the trier of fact, be it, the judge or a jury. This is how it works within the industry, and this is what happened.

Noah Bolmer: Okay.

Thomas McCloskey: Let them decide the importance of this. I do not represent anybody in my mind other than that trier of fact. If it supports your position, great. If it is not great, I am sorry. This is what I believe. You cannot sell your soul and many people will.

Noah Bolmer: Let’s talk about positive attorney experiences. Do you have any stories or takeaways of good experiences you have had that you wish more attorneys would do or prepare in a certain way? What makes you and an attorney a good team, and a better fit for an engagement?

Thomas McCloskey: We have to understand that the attorney is representing somebody. They are not the be-all and end-all in the case. You accept that the attorney may have to pull the plug on the case if you agree that this one is not defendable. A good attorney gives me the information and does not try to push me in one direction or another. That works best. They answer the questions, and I try not to waste their time. I will write a list of questions, call the attorney, ask my questions, and then get off their phone. We spend a large amount of time together. An attorney who lies to you is the worst. I had two telling me untruthful things, which led me in the wrong direction. One did not tell me the claim was denied. This was post-denial. A whole different set of circumstances than what I was led to. Good attorneys give you the information, let you sit down, and do what you do. The other thing they do is loan you their clerical staff. You do your report, forward it to the attorney, and they give it to their clerical staff, who go through it, correct your spelling, and syntax, and put it in the third party. They send it back to you and you approve or disapprove it and send the thing back. They put it in its final form, which you sign. The attorney who loans you his clerical staff is a good thing. Give me the information, ask questions, and let me answer.

Noah Bolmer: Do you feel that some attorneys overwhelm you with information before the case? I have heard from a couple of experts that sometimes they are given a large amount of superfluous documentation when they are first engaged. Is that something that you have experienced?

Thomas McCloskey: Unfortunately, you must look at it if you tell these folks, you are charging them a minute a page to review this stuff. Some attorneys scan the entire file. I only need the facts. I have had attorneys send me two banker boxes full of material. What am I to do with all that information? It does not address what we are doing, but I still look through it

Noah Bolmer: Before we wrap up, do you have any last tips for newer expert witnesses or attorneys working with experts?

Thomas McCloskey: People who are going to work as litigation consultants, which is how I prefer to refer to it, must have a good grounding in their field. Do not sell your soul or your name. Using an expression a friend gave me many years ago, “Don’t cut your face.” If you cannot support somebody’s position, tell them immediately that what they are doing is silly. I had a man call who wanted me to become involved as an expert for his client. It quickly became clear his client had committed arson. You do not want to talk to me about this. You would want me to stay away from this. You have committed a crime. I do not want to help you. Do not cut your face. Do not stray from your ethics. There will be other cases. The other thing is sooner or later, somebody will fire you. Do not take it personally.

Noah Bolmer: Sage advice. Mr. McCloskey, thank you for joining me today.

Thomas McCloskey: You are welcome, Noah.

Thomas McCloskey, CPCU, LIC, Litigation Consultant, Insurance Expert Network

Thomas McCloskey is a Litigation Consultant for The Insurance Expert Network. He has testified in over two hundred cases and is a sought-after expert for policy interpretations, insurance company operations and standards; and claims handling. Mr. McCloskey is a contributing author to several training materials including tax industry publications and courses and is a certified Chartered Property Casualty Underwriter (CPCU).