In this episode…

Having other qualified experts to rely on can be a boon, according to guest Mr. J. Mark Landrum. Whether you need a second set of eyes to look over your work, or an expert in a slightly different niche to aid you, bringing in your own team is a viable option. When doing so, it is important to set expectations and rates in the engagement contract.

Check out the full episode for our discussion on time management, mock depositions, and working as an expert on arbitration actions.

Note: Transcript has been lightly edited for clarity 

Host: Noah Bolmer, Round Table Group

Guest: J. Mark Landrum, Managing Director at SOCOTEC

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome Mark Landrum to the show. Mr. Landrum is the Managing Director at SOCOTEC, a testing, inspecting, and certification firm for construction and infrastructure projects, and the owner of James Square Energy Advisors. He is a process and facilities engineering and project management expert. Mr. Landrum holds a B.S. in chemical engineering from Texas A&M. Mr. Landrum, thank you for joining me today on Discussions at the Round Table.

Mark Landrum: Thank you for inviting me.

Noah Bolmer: You’ve made a career in engineering, but how did you first become involved in expert witnessing?

Mark Landrum: I went to work for a consulting engineering firm that provided advisory services for developers of major projects, and once I was working in that area, that led to opportunities to be or serve as an expert witness.

Noah Bolmer: Were you seeking out those sorts of opportunities or did it just kind of fall into your lap?

Mark Landrum: The first one fell into my lap. I wasn’t seeking it, but once I got a taste of that kind of work, I enjoyed it, and I began looking for more opportunities and developed relationships with the litigators at law firms.

Noah Bolmer: Tell me a little bit about those first calls. How did that vetting process go? What were you looking for, and what was the attorney or the attorney’s representative looking for?

Mark Landrum:  I’m a technical expert generally. Sometimes, I also provide quantum damages expertise, but as a technical expert, the questions from the attorneys were generally about my experience and expertise on the particular issues that were in dispute in the case.

Noah Bolmer: Experts are vetting the attorney as much as they’re being vetted by the attorney. In general, what makes that first call and that relationship work for you?

Mark Landrum:  I would say stick to whatever commitments you make in terms of developing and delivering a report or a product. Be responsive when the attorney asks you for a rapid turnaround. For example, I received a request last Friday afternoon that required me to work over the weekend. Attorneys often do that so they don’t hesitate to ask the expert to go above and beyond sometimes.

Noah Bolmer: How is time management in your particular niche? Do you have difficulty making sure that you have time for your regular work and time for your expert work? Do you use any specific techniques or calendaring programs to keep track of everything that you’ve got going on?

Mark Landrum: I do maintain a calendar with key dates. At present, I have as an expert witness as many as eight to ten cases at a time, and calendaring and keeping track of when reports are due or when hearing dates are set is important. I’ve been able to manage that in part because of the start-and-stop nature of expert witnessing work. I didn’t realize that it would be that way. In some cases, it’s hurry up and wait.

Noah Bolmer: You mentioned that you were on a bit of a time crunch from this most recent engagement. Does that happen a lot where you need something yesterday and need to turn in something immediately? How do you deal with that kind of time pressure?

Mark Landrum: Fortunately, I have some members of my team who also have years of experience, so I can call on them if we get into a crunch. They’re willing and able to assist in developing a document list or a document request that I can review and add a few thoughts to get sent off to the attorneys.

Noah Bolmer: Is it typical in your niche for experts and expert witnesses to bring on some of their own team?

Mark Landrum: I would say it’s fairly common in the energy consulting field or the technical expert witnessing role for a couple of reasons. One, the testifying expert may have, as I mentioned, a number of cases that he or she is engaged in at a particular time. Then, if you receive two million pages of document production, it can prove a daunting task for the expert to do the initial review of all of those pages. In my case, it’s helpful to have experienced engineers that I can call on by delegating work to people who don’t have the same billing rate as I do. It can help minimize the cost to the client as well.

Noah Bolmer: How does the contract work when you bring in your own team?

Mark Landrum: At SOCOTEC, we put proposed engagement letters and a rate schedule for not only me but also the different levels of personnel within the firm that work in the advisory and dispute resolution area. We indicate in those engagement letters that we may, as appropriate call on and delegate certain tasks to others. In my case, that could be a full-time employee of SOCOTEC that’s on my team. It could be a person in a different office. I’m based out of the Houston office, but I utilize engineers and professionals with the skills that I need from many of the SOCOTEC offices around the U.S., or it could be a 1099 contract consultant. I have several of those that I call on from time to time.

Noah Bolmer: On the subject of contracts, do you have any specific rules that you like to put in there? In other words, do you like to take a retainer? Do you operate on an evergreen policy? Do you do project rates? What’s your typical billing schedule like?

Mark Landrum: We do request a retainer. A nominal amount. It’s not high compared to what the total fee billing could be on a large arbitration or a lawsuit. We do request that and then we submit monthly invoices and request that they be paid as soon as possible. For those law firms that we have worked with on a number of occasions and receive repeat business from they and their clients are typically good about paying. We try to get the age of our receivables in the 60-day or less range. I’ve done bankruptcy work. I’ve done insurance work where I’m working for a number of insurance companies that have taken a coverage limit that a policyholder desired and you’ll find frequently that the number of days until you get paid may stretch out longer, particularly in bankruptcy because it has to go through approval by bankruptcy trustee for all the attorney’s fees and the expert fees.

Noah Bolmer: Your pay is contingent on the outcome of the bankruptcy, not necessarily what’s in the contract. Is that accurate?

Mark Landrum: No, I shy away from any work, and SOCOTEC does as well, where our fees are contingent. So, unlike the lawyers in some cases that may take on a personal injury case, for example, for the plaintiff on a contingency basis, we get paid our standard hourly rates regardless of the outcome.

Noah Bolmer: No.

Mark Landrum: In that way, we can remain objective and professional in the services that we provide.

Noah Bolmer: Speaking of remaining professional, you work in a broad field where there are a lot of different types of actions and expertise, how do you stay on top of it? How do you stay current with everything?

Mark Landrum: On the project management side, as recently as five years ago, I worked on a major project in the oil and gas industry where I was the project manager for the engineering procurement construction contractor. It happened to be a project in west Texas. I managed the effort through the detailed engineering procurement and equipment fabrication of structural steel modules and piping. The construction phase through the commissioning and start-up. That was a valuable experience, and it’s not the only experience I’ve cited. I learned what some of the pitfalls can be. Some of the ways in which major energy projects can go off track; get behind schedule, and costs can increase out of control. When I’m hired as an expert, it’s typically because some of those problems have been encountered, and having been in the shoes of the project manager in recent years has been a valuable experience for me and something that the attorneys appreciate as well.

Noah Bolmer: Staying active, engaged, and informed in your field is primary, right?

Mark Landrum: That’s right. Attending technical conferences and hearing others speak about developments in the industry. For example, what’s going on, whether it be in the renewable fuels area, carbon capture and sequestration, maintenance issues and problems, or regulatory compliance, for example.

Noah Bolmer: Let’s dig into some of the nuts and bolts of these engagements. Tell me a little bit about the preparation that you go through for depositions and cross-examinations. What do you typically get and what works best for you? What should attorneys be doing with expert witnesses and in particular, newer expert witnesses?

Mark Landrum: It helps to have a day or more of preparation with the attorney that will be presenting you for deposition. What’s been helpful for me is having one of the law firm’s associates or a junior partner to role play and ask you questions that you’re likely to receive from the opposing counsel during a deposition. That’s helpful in preparing one for the actual deposition.

Noah Bolmer: I’ve heard that depositions can be stressful experiences. Have you been through some marathon depositions?

Mark Landrum: I’ve definitely been through some marathon [depositions] where opposing counsel used all seven or eight hours that he was allowed because he hoped to wear the expert down by going that long. I would say it’s not an experience that I like to have. It can be stressful, but I try to be well-prepared and then enjoy it. Try to keep it pleasant. Try to keep calm and only answer the question you’re being asked and not give more information than you need, which is the trade of a good expert.

Noah Bolmer: Have you worked on extensive trial teams where there are a number of different experts, maybe a couple of attorneys, and maybe a couple of paralegals? If so, what is the interaction between everybody? How does that interplay manifest itself during your engagement?

Mark Landrum: It can be enjoyable working with the team, and yes, I’ve worked with several experienced and proficient litigators. [I have] been on cases where there could be three or four other experts on our side. I have a scope for my testimony. Maybe one or two attorneys that I’m working with on my particular scope, but when it comes to the actual hearing, let’s say in an AAA or an ICC arbitration, you may have a team of twenty people, including the attorneys and paralegals from the law firm and the experts. In some cases, people supporting the experts at SOCOTEC would be asked, or I would ask if they could join us wherever the seat of the arbitration is and could help in quickly locating documents that I want to show the attorneys in their preparing for their cross-examination of the other experts. You end up working closely over a period of at least a couple of weeks on some of these major arbitration cases.

Noah Bolmer: When you talk about arbitration, is there a significant difference in the preparation or routine of being an expert on some kind of alternative dispute resolution like arbitration compared to a traditional trial or is it largely the same?

Mark Landrum: It can depend on the experience of the panelist on an arbitration panel. If it’s a construction or post-construction dispute and one or more of the arbitrators have an engineering or construction background, then, in complex technical cases, that can be a help because they understand the fundamental engineering principles that you may be describing or the sequence of events that you’re describing in an equipment failure or something like that. It helps to understand the backgrounds of the arbitrators. I’ve had people who served as mentors to me say, “You always want to write your reports at a fifth-grade level-” because you’re unsure what the background of the panelists may be. It also helps to have good graphics as part of your direct testimony. That’s something I frequently recommend on complex technical cases, to be able to have some animated graphics to show the arbitrators, a sequence of events, or how our process works for example.

Noah Bolmer: I’ve heard that experts are increasingly using demonstratives, [such as] pictures and models. It sounds like you like using those and find them effective. Who is typically in charge of making them? Do you do them yourself or does somebody from the trial team do them? Do you outsource it?

Mark Landrum: For example, if I work with processing plants, liquefied natural gas, or LNG exporting facilities, at the design stage, there will be a complete three-dimensional computer-aided design model created for those facilities. Regardless of the design platform or software tool that you use, you can export those into a program called Navisworks. It allows someone to download a free viewer, and you can navigate like you’re flying above or walking through a three-dimensional model of all the piping, equipment, and pipe racks. If I want to show the arbitrators or the Trier of Fact, for example, the development of that 3D model over time, I can take screenshots and show what’s called a 60% design review model that had been exported to Navisworks to a 90%, and show what additional piping, cable table or equipment has been laid in by the designer from one model to the next. That’s a very effective demonstrative in many cases to show to the arbitrators, and it’s something that I can do with a copy of the Navisworks model. If we’re trying to animate a process system or piping system and show the flows, or if it’s a batch process and you have different steps in operation, then either I would go, or the trial team would typically go to an outside contractor that has highly skilled graphics expertise to prepare those animations.

Noah Bolmer: Do you also employ demonstratives in your expert witness reports?

Mark Landrum: We do. It always helps to have charts and screenshots from those 3D models or photos that show a stage of construction or the inspection of a piece of equipment in the shop prior to delivery to the site. We try to include those types of figures in the reports, and that’s proven to be highly effective too.

Noah Bolmer: You’ve been an expert witness for a while now. Have you noticed any significant differences via technology or otherwise in expert witnessing that have changed over the last couple of decades?

Mark Landrum: Two things immediately came to mind on that question. One is that e-mail communications are discoverable now. When I first served in an expert witness role to more recently, the volume of information you have to review because there can be thousands and thousands of relevant emails related to a construction project. I need to get some help from someone on my team to go through a lot of those and help me identify the ones that are most relevant to cite and report. That’s one change. I would say there has been a trend towards using more specialized experts and multiple experts more frequently than when I first started as an expert witness. I might be the only expert witness hired by the side that I was consulting for. On multibillion-dollar cases, it’s not unusual as I mentioned earlier, to see three, four, five, or six experts on each side addressing different issues.

Noah Bolmer: With that in mind, is it important that expert witnesses find a niche?

Mark Landrum: I would say yes, and it becomes more important that you understand and work with the attorneys to make sure there’s alignment on which expert is going to testify about which issue because I don’t want to be stepping on someone else’s expert report or conclusions in providing my testimony.

Noah Bolmer:  Do you have maybe a story or two about cases that you’ve worked on, situations that informed the way that you go about being an expert witness, or you found out that you were wrong or right about something throughout your career?

Mark Landrum: One case that comes to mind is an arbitration before a three-member panel. I was the technical expert. There was a scheduled delay expert and a damages expert on the same side that I was working on behalf of. I thought at the conclusion, or during that hearing, I was asked to sit in on the entire hearing, which lasted, as I recall, maybe seven or eight days. I was working on behalf of the respondent, so the claimant put on their case, and then my client and their attorneys presented their case. I was convinced at the end of that hearing that our client was going to win on the merits of the case from a technical standpoint. As I’ve since learned happens in many cases, the laws of the state governing the contracts or the key relevant documents are precedents that the arbitrators made their ruling on, and not so much the technical arguments that I had made. Sometimes you don’t know at the conclusion of a hearing what rulings are going to be made for that reason.

Noah Bolmer: Right, it is a little out of your control. All you can do is be the best expert that you can be and let the chips land where they will.

Mark Landrum: Exactly. That’s a good way of saying it. I would say in terms of the start and stop nature, I’m presently working on a case in which I was engaged in 2022. It has taken two years for the parties to get to where we are, which is the production of documents. In this particular case, I prepared what’s called a Certificate of Merit, because the engineering standard of care was at issue in this dispute. I’m working for the owner of a large petrochemical complex; they’ve taken their Engineering Procurement Construction (EPC) contractor to arbitration, and there was an accelerated period to review some documents and issue that certificate. Then, we had to wait two years because there were nonparties, including the licenser of the process technology, that agreements had to be worked out with because of the proprietary nature of that technology. That licenser didn’t want the proprietary know-how to be shared with the experts for the two sides. It took a lengthy time to get to the point where the licensor was comfortable with their technology being discussed, reviewed, and written about in the expert reports, so can be a very lengthy process.

Noah Bolmer:  In some of these super long actions, do you have sufficient time to be ready to go once it does roll back around? Do you know that the decision is being handed down, or that you’re going to be needed soon or do you just get a call saying, “We need you tomorrow?”

Mark Landrum: The parties and the tribunal in this arbitration case had agreed to a procedural schedule that includes a report in mid-February of next year, and that agreement was made some time ago. Neither party wants to push it out further into the future. Whereas we thought earlier this year we had plenty of time to review the vast number of documents and drawings that are relevant to the case, it’s now coming down to “We’re only here- four short months away and we still have a lot of document review and analysis to do.” Once again, it helps to have some experienced and knowledgeable team members you can call on when it when it gets to be crunch time like this.

Noah Bolmer:  Absolutely. Before we wrap up, do you have any advice for expert witnesses or attorneys working with expert witnesses out there?

Mark Landrum: I’ve had to learn to become comfortable with not knowing all facets of a case. When I begin doing this, I would think the attorney is going to share with me all of the developments, and I’m going to know exactly where things stand. But now maybe I have a few select issues in my areas of specialty that I’m opining on, and I don’t know everything that’s going on in the discussion between the opposing counsel for the two parties. As an expert, you have to become comfortable with maybe having blinders on, in the sense that you’re very focused on not only the documents, but the specific scope of your opinions. At the end of the day, you could be a critical witness to the outcome, or it could turn out that because of the evidence that’s presented the issues you’re opining on are maybe not that critical to the outcome, but you as an expert have to continue to do your best regardless of the size of the role you have on a case.

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

Mark Landrum: Thank you. I enjoyed it.

Noah Bolmer:  Thank you to our listeners for joining me for another episode of Discussions at the Round Table. Cheers!

J. Mark Landrum, Managing Director at SOCOTEC

Our guest, J. Mark Landrum, is the Managing Director at SOCOTEC, a TEC (testing, inspecting, and certification) firm for construction and infrastructure projects, and the owner of James Square Energy Advisors. He is a process and facilities engineering and project management expert with over three decades of experience. Mr. Landrum holds a B.S. in chemical engineering from Texas A&M University.