In this episode…

While it is important to maintain solid communication and work with the engaging attorney during the report-writing process–be aware that some attorneys may try to nudge experts to write in a way that furthers their case, rather than present a neutral opinion. Our guest, Professor Contreras, recommends proactively questioning your attorney throughout the process.

Check out the entire episode for our discussion on report writing strategies, working as an expert in foreign courts, and the importance of building great relationships with hiring attorneys.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Professor Jorge Contreras, Director of the Program on Intellectual Property and Technology Law, Utah University

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome Professor Jorge Contreras to the show. Professor Contreras is an award-winning legal scholar. He teaches transactional law at the University of Utah. He’s also a prolific author and sought-after expert witness professor. Professor Contreras holds a JD from Harvard University. Professor Contreras, thank you for joining me today at the Round Table.

Professor Contreras: It’s my pleasure. Thanks for inviting me.

 Noah Bolmer: Of course, let’s jump into it. With an impressive career as an attorney before moving into academia, you must have had occasion to work with many expert witnesses. Let’s get into the initial call. What are attorneys looking for when they are first vetting expert witnesses, and what should experts be aware of?

Professor Contreras: As it turns out when I was in practice—and I did spend 17 years in practice at a large international law firm—I was a transactional lawyer, and I didn’t hire experts. I was only exposed to the world of expert witnesses after I resigned from my firm to become an academic and then started doing it as an expert rather than an attorney.

Noah Bolmer: How interesting. Tell me about your first engagement as an expert.

Professor Contreras: I’m not exactly sure what my first one was, but one of the earlier ones was serving as an expert for the Internal Revenue Service in one of its large transfer pricing cases against a U.S. taxpayer, Amazon, regarding its international licensing and subsidiary arrangements around the world.

Noah Bolmer: Tell me about the vetting process. What is it like when you get a call? What are they looking for from you, and what are you looking for in an attorney to just decide whether or not you’re going to accept the engagement?

Professor Contreras: My understanding of what they’re looking for is someone who is truly an expert who knows math at some level of detail that can be demonstrated through publications or other work, talks, and so forth. They also want someone who is articulate and can explain whatever this is to a layperson on a jury, but more likely a judge or an arbitrator in some of these complex cases. There’s an interesting consideration of how much expert experience someone has, and what I learned from going through this process the first time is that often attorneys aren’t looking for someone who’s been an expert 50 times because that smacks of someone who is a professional expert as opposed to an actual expert in their field. I have appeared formally as an expert witness about 10 times, which is not that much, but in some significant cases. It’s been fun. Now, what I’m looking for, as an expert, is obviously a reputable employer. Usually, I’ve been hired by outside law firms, but in some cases, I’ve been hired directly by the client. For example, the IRS in-house counsel hired me, and they managed the litigation. There was another transfer pricing case against the Coca-Cola Company where I also was an expert for the IRS, and all of that was handled in-house, but most of my other engagements have been through outside counsel, and I want someone reputable. I also am looking for a case in which I agree with whatever the position is, which should seem obvious. I’ve definitely turned down expert engagements where I didn’t feel like I could convincingly take a position that would benefit the client.

Noah Bolmer: Do you typically have enough information during those initial phone calls to make that determination?

Professor Contreras: In fact, the attorneys who are hiring you also want to make sure that you share their view of the world. In some areas, it’s clear, from my academic writing, what my position is on certain issues, but that’s not always the case. Some narrow issues haven’t come up before, so you have to decide whether or not it is something you’d be comfortable with

Noah Bolmer: Academic writing is a great jumping-off point because I’d like today’s primary topic to be writing expert reports. You are in academia, so you have seen your fair share of writing, and you as a prolific writer, have written a lot yourself. What makes a good writer and to what extent does that translate to good expert report writing?

Professor Contreras: In any kind of writing, my view is to explain whatever the subject matter is in an understandable way that is not full of jargon. That is simple, direct, and understandable by someone with some knowledge of the subject. I try to achieve that in my academic writing for broader audiences, blog posts, and expert reports.

Noah Bolmer: Let’s discuss formatting when putting together an expert report. Are you typically doing so for the judge and jury in mind, and are for yourself so you can refer to it later?

Professor Contreras: I’m sorry, you-

Noah Bolmer: Are we having a glitch here? I’m going to pause recording briefly.

Professor Contreras: You were breaking up.

Noah Bolmer: One moment. There we go. Okay, we were just talking about formatting and expert witness reports. Is there a specific method or strategy that you use to format expert reports so you can refer to them during a jury trial or deposition, or do you write off the cuff? What’s your strategy with formatting?

Professor Contreras: I expect I’ll have to consult my report during testimony, and I will try to organize it by topic.  I’m usually asked to answer a specific question. There’s some background and then I go into answering the questions, and that’s all there is to it in terms of the organization and the formatting of the report.

Noah Bolmer: Do you use any kind of glossary, appendices, or anything like that if you have a longer report?

Professor Contreras: No, I never have. Some of our reports have been quite long, and I usually define things in line as we go along.

Noah Bolmer: We were talking about communicating complex subjects to laypersons. What techniques do you use if you have a long, complex topic to describe to people who potentially know nothing about your field of expertise? How do you manage to do that?

Professor Contreras: I try to distill down the concepts. I make sure that whatever the point I’m making, I’ve explained all of the antecedent information that you need to understand but again, in a way that’s straightforward and doesn’t assume a lot of prior knowledge. This is just as applicable to judges as it is to juries. Juries don’t read reports. They only hear testimony. I just try to lay it out very clearly and not use sentences that are overly long. If I use a term of art, I define it and try to use it consistently, but I try to avoid as much of that as possible. It’s not always possible. You have these technical terms, but I try to lay out all the antecedents and make sure that I explain it in a way that is straightforward.

Noah Bolmer: Many experts have a deep knowledge of their area and when asked, they want to expound upon everything they know. How do you remain concise and stay within the four corners of the matter without going into irrelevant areas? Do you have a strategy for that or is it something that comes naturally?

Professor Contreras: No, I don’t have a strategy and I don’t always succeed in doing that. There are times when the attorneys whom I share drafts with as we go along say, “Could you cut out this, this, this, and this? It’s not germane to the case?” I’m happy to do that and they know best. I think what- how they’re trying to frame their case and as long as they’re not asking me to say anything inaccurate. I’m happy to remove excess stuff that they don’t think is relevant.

Noah Bolmer: Do you have any editing techniques regarding confidentiality and discoverability that you use?

Professor Contreras: What do you mean? Did you –

Noah Bolmer: Sure. In other words, are you concerned that the opposition, at some point, will see everything you write in your expert report? Do you ever edit, adjust, or frame your reports in a way that does not open too much or keep your strategy within your side while still giving your honest expert opinion, or does that not really enter the equation?

Professor Contreras: As the report writer, I usually don’t have all that much. What I have are the parts of the record that counsel has given me, and the other side has access to those parts. Another piece of this is when I read a report, I try not to make it sound like a brief. That’s the job of counsel. I’m not there to make an argument on behalf of a party. I’m there to educate the court, the jury, or whoever it is who’s making the decision about what the industry norms are, how different processes work, and what the law is if this is a matter in a different country. Anything that I say is open and there for the other side. I don’t – there’s – I’m not part of the counsel’s team and I do feel that sometimes they’re not necessarily telling me everything about the case, but that’s okay. I’m just answering their questions and I’ll answer to the best of my ability.

Noah Bolmer: You talked about a back-and-forth between you and the attorney. I have a couple of questions about that. First, do they provide you with a skeletal outline or anything like that before you start your report? To what extent are they involved in editing or writing any content in your report?

Professor Contreras: No, that’s not my style of work. I know some experts will do that. I’ve heard, and counsel has told me experts let the attorneys write their report and maybe they’ll make some tweaks and then sign it. I write my own reports. It’s a matter of style, but also the expertise I’m being hired to provide.  I write a draft, and then the attorneys and the clients review it and often want me to go into more depth about one thing or another. They’ll say that certain things seem extraneous and don’t need to be there. Often, they’ll read what I’ve written and say, “We need to give more facts” and they’ll provide me with more pieces of the record or deposition transcripts that the other side has taken. While I’m writing the report, it’s all happening in real-time. There’s interaction, but by and large though, they’ll ask me questions and frame and we’ll talk about how they frame their questions. I’ll often state what the questions are at the beginning of the court. Beyond their questions, I write my reports.

Noah Bolmer: Have you had experience working on both the plaintiff and defendant side as an expert witness?

Professor Contreras: Yes, yes, yes.

Noah Bolmer: Is there a difference between writing an initial report and a rebuttal report?

Professor Contreras: They are definitely. I mean, whether you’re the plaintiff or defendant you always start with an opening report. At least I have. Then for better reports and rebuttal reports, and so forth. You can go on and on. our opening report. You state your view of the facts, the law, whatever it happens to be, in a complete way. In the report, you’re simply responding to the opposing expert’s report, and there you are pointing out, point by point, the flaws or points that you disagree with in that other side’s report. It’s much less narrative. It’s a point-by-point rebuttal, whereas the opening report can be a narrative. It should have some sort of logical flow to it whether it’s chronological or topical or whatever.

Noah Bolmer: Have you worked on a team with other expert witnesses?

Professor Contreras: No, I haven’t. In most of the cases I’ve been involved in, other experts work for the same side. Sometimes, I’ve been given a piece of their report to inform them what I’m writing. Counsel, I think, likes to keep control over this process, and I think they don’t like the experts to just get together and go off and do their own thing. I think they want to be in control of who’s doing what and which pieces of this case they’re presenting.

Noah Bolmer: As somebody with experience, both as an attorney, an expert, and a professor, do you think that’s wise? Is it better to allow the experts to interface or is that caution warranted?

Professor Contreras: As an attorney, I can see you don’t want the experts going off and going down their own path. It’s the attorney’s case. They’re making the case, and the experts are supporting that case in some way, but they need to be in charge of the overall strategy.

Noah Bolmer: Are there any common pitfalls that you’ve seen vis-a-vis expert witness reports? Anything else?

Professor Contreras: There are all kinds of potential pitfalls. Some attorneys are more proactive than others in commenting on the report, and some will want to mark it up and try to put words in your mouth. That’s something that should be avoided at the end of the day. You, as the expert, are going to have to defend the words in that report, deposition, and in testimony. You want to be comfortable with everything that’s in it. Other than allowing the attorneys to put the right references to the exhibits they come up with and so forth. I think you should resist allowing attorneys to tinker too much with your report. That’s what their briefs are for. They can write their briefs in the way they want.

Noah Bolmer: You might recommend taking a proactive role. If you see the attorney trying to push you too hard in your opinion, push back against them.

Professor Contreras: I don’t think I’d say it that way. That’s not my style, so I think that’s fine. They respect that.

Noah Bolmer: Beyond the reports, I have a couple of other topics I’d love to discuss with you. Let’s talk about venues a bit. Have you worked in different venues, such as state, federal, regulatory international, etc., or have you primarily worked in a single venue?

Professor Contreras: No, it’s been a wide variety, interestingly.

Noah Bolmer: What are some of the differences, especially from the viewpoint of expert witnesses, but also broadly in working across different venues? What are those preparation methods? How familiar do you need to be with the laws, the rules, and the entire regulatory framework of the different venues?

Professor Contreras: As the expert, you don’t have to be familiar with the actual procedural rules at all. Although there are ethical rules and rules about experts that are different in different countries. I’ve served as an expert in the United States before courts and the International Trade Commission, but also in courts and tribunals in the UK, Germany, and Brazil. II think that’s it. There may be more. It is the main difference. I’m a lawyer licensed to practice law here in the United States, but an expert is not supposed to opine on U.S. law. The role of the judge is deemed to be an expert in the law, and counsel is there to make the legal argument. In the US, as an expert and as a lawyer, I can opine about industry practices that I’m familiar with. That’s it.

One exception is in the Tax Court, where I have done a significant amount of work, where the tax judge and counsel don’t have expertise in Intellectual Property Law and aren’t expected to. There’s a Tax Court and that’s my area of expertise. I was engaged and much of my focus was to educate the court as to US Intellectual Property Law and International Intellectual Property Law, but that’s an exception. In most courts of general jurisdiction, district courts, or administrative law, judges at the ITC are assumed to have that knowledge. In a foreign court, my job as an expert is to educate that court about U.S. law. I am giving an opinion about what U.S. courts have done in the past, how they consider issues, and what U.S. law is.I forgot Canada was another jurisdiction where I have served in that kind of role.

Noah Bolmer: Is it that U.S. law is somehow persuasive there or are you working in actions that somehow touch U.S. law in some way, shape, or form?

Professor Contreras: The types of cases that I’m involved in are multi-national, multi-jurisdictional cases where U.S. law is relevant to what’s going on. In fact, I’d say probably all of them. There’s a matter and the U.S. matter may have gone first. The U.S. matter may be going on concurrently and the foreign court needs to know certain things. The foreign court is often deciding whether it should take jurisdiction over a case or whether it should stay its own proceedings in view of what’s happening in the U.S. The U.S. courts are making the same decisions. It’s important for the foreign court to know what the procedures are. What the decisions are in the U. S. from an objective expert who is not counsel to one of the parties. In some cases, the foreign court will be applying U.S. law like the U. S. court hearing a case that involves a contract governed by Swiss, Swedish, or French law. The U.S. court will look at expert testimony to see what Swiss law is on this question. Then the U.S. court will apply the Swiss law. In a foreign court, I would be an expert opining to the Foreign Court on what U.S. law would be.

Noah Bolmer: Are you brought in early enough in the process to properly prepare for something like that? It sounds like there’s a lot of preparation work that would go into being able to opine from a position of authority in a foreign nation like that.

Professor Contreras: The timing must work with my schedule. I do have a sense of how long these things will take. The good news is I’m an expert in many cases in the same general area of the law. I know that area well, and so I have much of the preparation. I don’t have to learn this stuff from scratch, but everything keeps changing and every case is different. I still have to prepare for every case.

Noah Bolmer: As the triple threat of attorney, expert, and professor, what makes for a positive attorney-expert team?

Professor Contreras: From the expert standpoint, having attorneys who communicate, layout deadlines, explain them, and get back to you quickly with feedback is all good. In these cases, all sorts of twists and turns occur, delays, and so forth. Sometimes you end up sending a report or a report draft and don’t hear back for weeks or months. You’ve no idea what’s going on. As an expert, I appreciate it when the attorneys keep me posted. It’s like I’m not going to bill an hour for reading your e-mail updating me on the status of the case. It’s nice to know for scheduling purposes if nothing else. Good communication is useful and much appreciated.

Noah Bolmer: Are there billing considerations that make a relationship more positive? Do you set expectations in advance, follow best practices, or do anything similar regarding billing?

Professor Contreras: Being paid promptly is a big plus. One issue that sometimes comes up is if you’re hired by a law firm, the law firm often will not pay you until they receive payment. They submit your bill to their client, then their client pays them. The law firm doesn’t pay you until that happens. There are a lot of billing cycles in between issuing your invoice and receiving payment. Sometimes that’s a bit unnerving because you can rack up three or four months of work between the month it takes them to process your bill, send it off to the client, and the client sitting on the bill and not paying it. They’re not necessarily chasing it. It can take a long time. When I’ve got a fair amount of work done and haven’t received anything yet, I do nudge counsel sometimes. If it gets to be a large amount of money, counsel will sometimes be generous enough to pay it out of their firm and not wait until they collect it from their client. To their client, my time is a drop in the bucket. It’s all the other experts, expenses, lawyer time, and so forth and so I’ve had a few occasions where the clients are just slow. Especially foreign companies dealing with U.S. law firms don’t necessarily pay that promptly. Then I am sitting there at the back end of two billing cycles waiting for that. I’ve been an expert in a couple of contingency fee cases like patent, and antitrust cases, and the contingency players don’t have to wait for payment. They’ve got funding from a funding source, and they should pay promptly. That’s nice. It’s a big multinational firm representing a foreign offshore client who is a slow payer. It stretches out, and that is unnerving.

Noah Bolmer: Can retainers help mitigate some of those issues?

Professor Contreras: They could, but I have not done many retainers. Maybe I should. If I was a businessperson I would. It’s hard to figure out how much a retainer ought to be. I go on an hourly basis, and the firms I deal with are all large-name firms, and at the end of the day trust that I’ll get paid.

Noah Bolmer: Eventually.

Professor Contreras: I always have. I’ve never truly been stiffed on the bill.

Noah Bolmer: It’s interesting you brought up that occasionally, or often, firms will make your payment contingent on when they are paid by the client. Is that fair, considering that the attorney is your client, not the end client? Should when you are paid be related to when the client pays them given that their client is not yours?

Professor Contreras: I would say not, but that is always a part of the firm’s engagement letter with me anyway. Maybe I’m not negotiating hard enough, but that’s usually their policy.

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

Professor Contreras: I would just say that the experts should do a good job. You can get expert work from groups and bureaus, but by and large, I get work based on referrals. In the last month, I had a firm that was considering hiring me ask for a reference from another law firm that had worked with me. I would try to do your best work, not do the work to get the bill. If you want additional expert work, much of it is going to come from future referrals. I would try to do your best job and keep a good relationship with counsel. They are the ones who are going to come back and hire you. I’ve been hired on a repeat basis by some law firms so keeping those good relations is the most important thing.

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

Professor Contreras: This was fun. Thanks for having me.

Noah Bolmer: Absolutely, thank you to our listeners for joining me for another Discussion at the Round Table. Cheers

Jorge Contreras, Professor at University of Utah

Our guest, Professor Jorge Contreras, is an award-winning legal scholar and professor of law at the University of Utah. He teaches transactional law, which he practiced for over 17 years before teaching. Professor Contreras is a published author and sought-after expert witness and holds a JD from Harvard.