In this episode…

Our guest Mr. Stephen Embry, is a national litigator and advisor primarily in the mass tort, business and consumer class action, and privacy and data breach arenas.  He sat down with us to discuss the attorney and expert witness relationship and how to make the most of your expert. According to Embry, the best experts are relatable, as he explains, “[being] likable and communicative and empathetic comes through. . . with me as the lawyer and it shows the jury that this person likes doing what they’re doing.” He continues, “A good expert cultivates being an interesting person . . . in the sense of being out in the world [and] knowing what’s going on”.

Other topics include the vetting process, collaboration and boundaries, and credibility. Stephen mentions, “If you have to admit something in a deposition, admit it . . .  Don’t spend your time fighting something that that’s not worth fighting over [because] you lose credibility. The most important thing for an expert is to be credible.”

 

Episode Transcript:

Note:  Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Stephen Embry, Lawyer, embryLaw LLC, Publisher of TechLaw Crossroads, Past Chair of the American Bar Association’s Law Practice Division

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and I am excited to speak with Steve Embry. Mr. Embry is an attorney, blogger, and [Past] Chair of the ABA Law Practice Division. As an attorney, he has practiced for over 30 years focusing on mass tort, data breach, privacy, and cyber insurance. His blog, TechLaw Crossroads, examines the intersection between technology and the legal profession. Mr. Embry holds a JD from the University of Kentucky. Thank you for joining me today.

Stephen Embry: It is my pleasure to be here. I am looking forward to it.

Noah Bolmer: Great, let’s jump into it. Your legal career spans over 3 decades. You have seen first-hand the impact that technology has had on the profession. How did this intersection become your focus? Was it gradual, or did it hit you all at once?

Stephen Embry: It was gradual in a sense. I remember having an epiphany many years ago. I was going on vacation with my wife and two children. We were in the car and my wife was driving, and I was working on a brief trying to figure out how I was going to get the brief done since I was going to be on vacation. “Listen,” my wife said, “take a break.” I took a break, and I was reading this article in the American Lawyer about a lawyer named Fred Bartlett who went on to found Bartlett and Deck, and he was quoted as saying, “I’m sitting in my condo overlooking the Rocky Mountains, working on a brief that is due to the bar back in my Chicago office.” And I said, “You know, I think that guy is on to something.

Noah Bolmer: That is good. You do have 30 years of experience. When did you first, if you can remember, start working with expert witnesses? When did that become a part of your practice?

Stephen Embry: It was not long into my career that I began doing math work, work on the defense side, and the nature of those cases meant you had to have experts that could help you tell the story to the jury or the mediator for that matter, but always thinking of the jury. It became clear that having good experts was critical to your success in the courtroom and elsewhere throughout my career. I have worked with experts from data scientists to engineers to doctors, you name it. I worked in tandem with them on almost every case that I had.

Noah Bolmer: Has that vetting process changed over the years over the decades?

Stephen Embry: We certainly do more of it on Zoom calls than we used to, but the fundamentals of it, for me, have not changed that much. First, an expert must have substantive knowledge in the field. Beyond that, I am looking for an expert who can concisely communicate ideas. That at first blush, can understand and be a lay person. There is an old saying that, and I think about this often. If I talk to an expert and they cannot explain something to me in a way that I can understand, either they do not know what they are talking about, or they are trying to hide something. I have always thought that to be good advice. I think one of the things that experts, particularly those who are new and getting started, do is underestimate the need to be a good communicator. They underestimate their role in helping the trial lawyer tell the story that must be told.

Noah Bolmer: Being an expert is not enough. It is not enough to know your subject matter; it is how you communicate it.

Stephen Embry: That is exactly right. The best experts know what they are talking about. They can communicate it, and they are likable. They are the kind of people I like to use. Is this expert somebody I would like to go to dinner with, not from a personality standpoint, but the desire to be likable, communicative, and empathetic? It comes through in social relationships with me as the lawyer and the jury that this person likes talking to others and doing what they are doing. That is critical.

Noah Bolmer: Do you have any tips for experts to work on? You may have somebody with an amazing niche who is one of the premier experts in the field but is not the best communicator. Is that a dead end or is that something that can be improved?

Stephen Embry: That is an interesting question. Like many things, it improves with practice. But I think part of it is an expert must want to be with people and talk to others. For example, tell them what they do for a living. Try to have an underwriter or an actuary explain what they do for a living and work on it enough that somebody like me can understand it. A good expert cultivates what I would call an interesting person. I do not mean that in the sense of being out in the world and knowing what is going on and watching movies, but knowing what people are interested in and observing how people communicate over social media. See how they learn things. For example, when someone breaks into your house, and you need to fix it, or your toilet is stuck. Where do we all go these days? We go to YouTube, right? So, a good expert needs to understand that is how people learn these days and tailor what they do to fit people’s expectations, for better or worse. It is where we live. Good experts need to cultivate that ability.

Noah Bolmer: Let’s talk about confidentiality and privilege. When you work with an expert, these might be new things for them. They may not understand the attorney-client relationship and what you can say to whom. How do you increase their level of understanding of that in a way they do not get into trouble or get you into trouble?

Stephen Embry: Jurisdictions and judges vary in how they treat communications between lawyer and expert, but I think the expert needs to understand the litigation process, how it works, and if they want to know what to say, how to say it, and how to communicate it. First, they need to know how things work in the courtroom and depositions. Good experts avoid most of those privileges and confidentiality traps by knowing how it works and understanding the issues. Structuring what they do so they do not get into trouble now. It is a two-way street. Experts need to require the lawyers they are working with to tell them what they need to be doing. Tell us where the traps are and where the problems are. Help us understand how this is going to work. Tell us about the lawyers on the other side.

Noah Bolmer: That is interesting. I have heard from more than a few experts who have been doing it the longest and have been successful at it are the ones who have taken a proactive approach to their expert.

Stephen Embry: Right.

Noah Bolmer: It is interesting to hear that it is also your experience. They need to come and tell you what they know and not rely on lawyers for everything.

Stephen Embry: No, that is right. They need to take time off when they are not engaged and go to a courtroom and watch a trial. Watch somebody testify and get the litigation processes down. I am not sure saying litigation is a game is a good way to put it. It is a game in the sense that there are rules and there are unwritten rules. There are a few. The best experts I know get that feel from what is going on. Many lawyers I have seen break down because they just leave it to the expert. They do not sit down and have this conversation. Questions about expectations on both sides and experts need to demand their lawyers tell them what they expect. What does the lawyer want? That to me is the key to having that kind of communication and dialogue.

Noah Bolmer: And that is all part of…

Stephen Embry: Back and forth along.

Noah Bolmer: That is all part of the preparation. What are your techniques? How do you prepare new expert witnesses for depositions, cross-examinations, or even report writing? Do you like to do mock cross-examinations? Would you like to talk to them over Zoom? Do you take a varied approach depending on the case?

Stephen Embry: Both. It is a varied approach depending on the case and the expert. I will give you a good example. A good expert will be a team player with the lawyer on the case, tell the truth, and look for solutions. One of the best experts I have ever had was a fire scientist. If there was a problem in the case, he would say, “Maybe we can approach it this way.” Then, he would try to come up with a way around it and deal with it in a way that would be persuasive from our standpoint. Telling the truth that has to be it. It is like everything else in life. You can either say, “There are problems, and there is nothing we can do about it,” or you can say, “There are problems, but let’s look for a solution.” So, depending on the expert’s personality and the facts of the case, I will do all those things. It is wonderful when you have an expert, so you do not have to do all those things. An expert who knows what to do. Those experts are not born, they get there through experience, which is a problem these days because we do not try as many cases as we did when I was a young lawyer. Experts do not have that ability to get into the courtroom, which means you are training off depositions and reports more than you are training to be able to see how this will play out in the courtroom. As an expert, you can be deposed and give answers. How is that going to sound in the courtroom? How is it going to play out in front of a jury? That is hard to do. I sometimes will try to do a mock deposition more than a mock cross-examination or mock direct analysis. You always get into, “Is that going to be discoverable? What is the harm?” I used to have a partner who would say . . .

Noah Bolmer: Never heard that before. Can a mock-cross be discoverable? Articles are waiting to be written on that.

Stephen Embry: Well, juries these days, they expect that. They know your experts are not going to prepare in a vacuum. And they know their lawyer is going to talk to the expert, and you get into trouble when you do not give the expert all the facts. Juries can sense if somebody is hiding, and that is not a good thing. I have tended to try and give information to the max rather than less for that reason. It is a balancing act that you are doing in that regard.

Noah Bolmer: One of the things that I have often heard is that experts are being coached to just answer the question asked and not divulge anything more. Is that what you recommend?

Stephen Embry: That used to be the advice. We tried more cases and in some of the depositions you want to give less, not more information. But the way things work now with more cases being settled, with mediation being a more important touch point in the litigation, I tend to be freer than that and there are things I want the expert to bring out in the deposition, even if it is not exactly asked. “Here is what to bring out.” You see these people that like politicians, and media representatives, they will be asked a question, and they will say, “I do not know about that, but what I can tell you is…” and they give their points. I try to sit with an expert or witness and say, “Okay, here are three key points. These are the three things that that we want to focus on.” You want to come back to those three points or anchors. These days I am more liberal with that because 90 percent of the cases are settled. You are sort of negotiating and getting ready for the settlement talks in the discovery, you want to make your points and score your points.

Noah Bolmer: I am not going to hold you to any kind of numbers, but is it approaching the high 90 percent of cases and contrast that with how it used to be? Where would you say that we were 20-30 years ago?

Stephen Embry: There are some statistics on that. I think as of even four or five years, it was 60 to 70% of cases. It has gone up significantly to the point that there are many people myself included who are concerned about how younger lawyers are going to get courtroom experience and the problem has become so expensive. When I was a younger lawyer, we tried what I would call penny handy cases because it was not so expensive in those days. Now any lawsuit is expensive. E-discovery, experts, and all those kinds of things have become expensive. You do not see as many cases go to trial as there used to be.

Noah Bolmer: These days, is the job of an expert witness report writing?

Stephen Embry: I would not necessarily say that. It is certainly part of it, but it is little more than that.

Noah Bolmer: Like, what is the main utility of an expert to an attorney these days? Assuming that it probably will not go to…

Stephen Embry: Scoring points during a deposition is one. I have seen people bring experts to mediation. I have seen experts go to client meetings. When I was a younger lawyer, I had a partner who was also my mentor, and I said, “If only I could take this expert to this meeting with this group.” He said, “Absolutely take your expert.”  I said, “Yeah, but the expert is more knowledgeable than I am, and I will look like a dumb lawyer.” He said, “Listen, you will get the credit for how good your expert is. You picked him.” Sure, enough that occurred. The expert needs to be prepared for various roles, particularly in larger cases because they are in any number of things. Mainly supporting the lawyer. Even if the expert does not go to the client meeting, they help the lawyer understand the case from a technical standpoint so that it can be presented to a client, the insurance carrier, or the other side.

Noah Bolmer: One of the interesting things that I have heard from interviewing many experts is they think that one of the main ways to get more work is to perform well. Sometimes even the other side will have their deposition, the performance, cross-examination, or even their report and even though they were not on their side, they may hire them for a future action. As an attorney, is that something that you look for when you are hiring an expert? What are the main things that you are looking for when you are deciding who to bring on? Is that experience?

Stephen Embry: I had experts that it might have been their first case being an expert, but they quickly grasped what was going on. They communicate things and solve problems. All the things we have talked about. I have hired experts that have been used by the other side, not in the same kind of case but in a related one. As an expert, you must remember to be professional, not burn bridges, and be a jerk to the other side. You never know where it is going. It is not good. That type of expert does not come across well at the end of the day. I look for the things we talked about. I used to use an expert quite often who has since passed away. He was an engineer in a large firm. We would have meetings with some of the people he worked with, and they would report and develop opinions. He always had this great question when one of the people who worked for him would say, “This fire started in the” or “This coil got hot.” And he would say, “So what of that?” It was a good question to ask yourself. As an expert, you are writing a report, [ask], “What of that?” It leads you to make yourself understandable and clear. What if “What is there” is “no,” [then] forget it. It is not important. I always thought that was a great test, and I asked myself that. When I write a blog article or something now, I might have a paragraph in there [and] I will stop myself and say, “Okay, so what of that?” You need to have that in there.

Noah Bolmer: “So, what of that?” It communicates that well.

Stephen Embry: Yeah, it does.

Noah Bolmer: Not to put you on the spot, do you have any stories where an expert witness in some way was pivotal to a case and fundamentally changed the way you think about things or somehow prescient in your career?

Stephen Embry: As I mentioned before, I was fortunate to work with the fire scientist. I worked with him on several simple cases, and he helped me understand how an expert can benefit the lawyer to make a persuasive case. He was good at understanding. We had a case and one of the issues was whether something had spontaneously combusted. He said, “Let me see if that can happen.” It was not an experiment necessarily. We tried it and it never spontaneously combusted. We would always kid each other, and every time I saw him, maybe a couple of years later, and said, “Has that thing spontaneously combusted yet or is it still waiting?” It is instructive because it was a sense of humor, and you could see how he was into problem-solving. If it did not spontaneously combust, okay, no big deal. If it did, that would be a big deal because it was one of the theories. There were several theories we were working from and if it did not work, it would not have been a big deal. He had to say that he tried it. It would make him look good because he could say, “I approached that theory, we tried it, and it did not work. In my opinion, that is not how the fire started.” On the other hand, if it did work, you would say he was trying to solve the problem. Look at it from both sides and have something that no matter what would be helpful however it turned out.

Noah Bolmer: Sounds like this collaborative relationship is part of what makes an excellent versus a merely good expert witness.

Stephen Embry: I think that is exactly right. I have spent time with experts, not just working on the case, having fun, going out to dinner, and those sorts of things because you learn about it. I have always thought of it as a team approach between the lawyer and the expert that works.

Noah Bolmer: I would like to pivot to ethics before we wrap up, I have spoken to some experts who felt that attorneys have tried to compel them either gently or overtly, to answer questions in a particular manner, or otherwise color their testimony. How can attorneys simultaneously employ experts who will help their case while making sure not to unduly influence their expert’s opinion?

Stephen Embry: It is a tough question. I always start with, “This is my theory of the case, Mr. Expert or Mrs. Expert. Now you tell me how that fits the technical requirements?” If it does not fit, then why do it? You cannot do it. In that regard, the advice I always give experts is if you admit something in a deposition, admit it. Do not fight it. Do not fight something not worth fighting. By fighting, you lose your credibility. The most important thing for an expert is to be credible and an expert is not credible if I influence them. It is not only ethics but also sound litigation practice. If I try to get an expert to say something that they do not believe in their heart of hearts, it will come out either on cross-examination or the jury will see it. That is the way it is. I want the expert to understand where I am going. I also want the expert to tell me that I do not need to go there. It is not a good place to go. Another route that will not work is you cannot try to get your expert to say something they do not want to. Where people get crossways with that is as I said before, the expert does not try to solve the problem or the bottleneck. They say, “I cannot say that” or “I cannot do that” or “that is not right.” When they should say, “I cannot do that [but I can do this]” or “I cannot say that . . .  but I can say this.” In the first case, where an expert does not try to help, the lawyer has to try and fill that gap. The lawyer is not the expert, and it typically leads to problems all the way around.

Noah Bolmer: I am sure that on the flip side of the coin, you are looking at the other side to trip up in that fashion so that you can impeach them on that, right?

Stephen Embry: Yeah, that does lead to another sort of issue and that is experts need to be aware of what they say publicly in articles and the courtroom. Now, our lives are pretty much open books. It used to be that. some of that stuff was hard to find out. Now, it is easy to find, so experts need to constantly be aware of what they have said before and how that might play into what they are doing, and they must be prepared to distinguish or support it. There are things that you said before that are helpful. Experts need to be aware and understand how to use technology with their testimony. Many experts will not have that knowledge. They cannot assume that the lawyer will be technologically proficient and able to suggest tools that the expert can use to help tell the story. Experts need to be thinking about that. None of us can afford to hide from technology and what it can do.

Noah Bolmer: That is a fact. Do you have any advice for attorneys using experts or newer expert witnesses?

Stephen Embry: Be a problem solver and like what you are doing. Being a testifying expert is something that you must want to do. Some lawyers are not litigators and there is nothing wrong with it. They do not want to do that because it comes with a price. If you want to be an expert who testifies, you must understand what that means, be happy, and embrace that role because it is not the same as writing an academic paper. It is not like teaching in a classroom. It is a little but not quite the same. You need to understand exactly what you are getting into and want to do it because if not, it will show.

Noah Bolmer: Sage advice. Thank you, Mr. Embry, for joining me today.

Stephen Embry: I have enjoyed being here. It is always good to talk about these things and to all the experts out there, good luck. I love working with experts and hope they have liked working with me over the years. We did hours of hard work and had some fun along the way.

Stephen Embry, Lawyer, embryLaw LLC and Publisher of TechLaw Crossroads

Stephen Embry, is a lawyer and the immediate Past Chair of Law Practice Division of American Bar Association. His blog, TechLaw Crossroads, investigates the tension between innovation and the legal profession. Mr. Embry’s practice frequently engages experts across multiple disciplines and locations.