In this episode…

At the beginning of a case, expert witnesses often face a large infodump from the engaging attorney. It is important to thoroughly go over everything before beginning the report writing process; if the attorney sent it, it’s there for a reason. Mr. Lauhoff takes notes on all documentation, and brings them to trial:

I read everything that an attorney sends me; absolutely every word. [. . .] [The attorney] wants me to read it. So I read it, and I take notes on it [. . .] and I take them to any deposition that I go to. You’re also permitted to take them to trial if you’re going to testify; [. . .] they’re not a test of memory.

Additionally, Mr. Lauhoff talks about how opposing attorneys will try to get you rattled, the importance of tracking code changes, and the way expert witnesses can affect public policy.

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest:  John Lauhoff, Owner, John Lauhoff PE CSP Safety Consultants

Episode Transcript:

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer and today I’m excited to welcome John Lauhoff to the show. Mr. Lauhoff’s eponymous consulting firm specializes in litigation support for industrial and construction accidents. He’s a registered professional engineer and a certified safety professional with over 25 years of experience in civil and safety engineering. Thank you so much for joining me here today.

John Lauhoff: My pleasure, Noah. Thank you for the invitation.

Noah Bolmer: Of course, let’s jump into it. You’ve had a long career as an engineer and a safety professional, including working with some of the world’s largest automotive manufacturers. Tell me about your background and how you first became an expert witness.

John Lauhoff: I already had a private pilot license, and I went to all the various branches of the military and said, “I want to be a pilot. Will you send me to flight school?” The Air Force was the only one that really said, “Yes. If you pass the physical and you get commissioned, we’ll send you.” I went through flight school and stayed in the Air Force for 20 years and retired as a Lieutenant Colonel. Then I went to work in the industry, and I worked for Ford, General Motors, and Chrysler. [I spent] 10 years with Chrysler and I retired from there again as a safety engineer,

Now, you said, “How did I get into the expert witnessing?” One day a gentleman came into the plant and said he needed to see a spot where an accident happened, and I told him. “Well, that bay is empty. There’s nothing there.” He said, “That doesn’t matter. I just need to say I looked at the spot.” And he was an expert witness and he told me a little bit about how all of it worked and that sounded really intriguing because I knew when I retired, I didn’t want to sit in a rocking chair on the porch. I built myself a website and found a lot of different companies that promoted experts to attorneys. I got registered with probably 15 or 20 of those and business started coming in. I started my business in 2005. I only had a couple of cases before I actually retired from Chrysler which was at the end of December of 2007. Since that time, I’ve been averaging about one new case a month. I work both plaintiff and defense cases, it’s extremely important to get a mixture like that because a lot of attorneys say, “Boy, I really like that, having the combination of plaintiff and defense experience.” And I find that important too-

Noah Bolmer: I could-

John Lauhoff: – go ahead.

Noah Bolmer: – yeah, I can see that your experience is almost or it actually is literally evenly split between defense and plaintiff cases. That’s something. Do you actively pursue that part of your vetting process to try and make sure that you’re taking some of each or has it just kind of worked out that way.

John Lauhoff: It just worked out that way really. When I’m contacted by an attorney what I’ll do is- the most important thing, [is ask myself], “Can I support the case?” I’ll look at it very objectively, whether a plaintiff or defense, doesn’t matter. I think you have to remain very professional. Very honest.

Noah Bolmer: You have quite a deal of experience with gosh, 70 engagements or nearly 70 engagements. As you know, there are a couple of types of expert witnesses.  There are consulting witnesses and then there are also, of course, testifying witnesses. Do you have experience with both? Do you have a preference over whether you’re a consulting witness or a testifying witness and what are some of the differences?

John Lauhoff: I like being a testifying witness, and the difference is a testifying witness is the one that will actually go in front of the jury trial. A consulting witness is just someone who provides information to the testifying expert. I like to do all of my own research. I’m a one-man operation by doing all my own research. I don’t rely on anyone else. I read everything that an attorney sends me. Absolutely every word. That’s really important. I’ll have an attorney say- I’ll send him an invoice and they’ll be [saying], “Wow. You know that that’s a lot of money.” And I said, “But you sent me a lot of material. That means you want me to read it. I read it.” And I take notes on it. My notes are all typewritten and I take them to any deposition that I go to. You’re also permitted to take them to trial if you’re going to testify in the trial at that position in the trial, they’re not a test of memory. What they want to do is get out what you know. Now what I’ve had opposing attorneys do for me multiple times is they’ll ask me a question over and over again using different terminology. Trying to get me to say what they want to hear. What they wanted [on] the record and I have on multiple occasions told them, “I know what you want me to say, but I’m not going to say it.” And then they move on to a different line of questioning. They may come back to it. They may not.

Noah Bolmer: We spoke a little bit offline, and you had told me that there are a couple types of opponent attorney, shall we say, when you’re doing depositions, and one takes kind of a super nice guy approach, and one takes kind of a super mean guy approach. Tell me a little bit more about that and how do you prepare for each of those approaches and how can newer experts [prepare] for both of those approaches.

John Lauhoff: One: you can’t. You don’t know what type of attorney you’re going to be up against. Unless you ask the attorney that you’re working for, which I always do, I said, “What kind of a guy is he?” Most of the time, they’re decent people, and they’ll act like your friend. But what you’ve got to understand is they’re really not your friend. They want you to say what they want to hear. They feel that the more friendly that they are to you, the more relaxed you’re going to be, which is true […] but the easier it’ll be to get you to say what they want.  What you’ve got to remember is that you know more than they do. You are the expert there. They’re trying again to get information from you. The best thing to do is just to take a deep breath, calm down, and don’t fall into their trap.

Noah Bolmer: When you talk about reading all of the material, do you often find that you’re given kind of a mountain of material? Is there a fair amount of it that’s superfluous, or do you typically find that the attorneys are pretty good at weeding through the chaff before they give you material on the case?

John Lauhoff: Again, that depends on the attorney. Some will send me a lot of medical information and that way I’ve come to the point where I tell them don’t send me any medical information, that part doesn’t matter to me. It might sound hard that I don’t care how badly the person was injured, but that’s for the jury. I’m just there to say why they were injured. Was it their fault or was it the fault of a piece of equipment? Somebody else interjects something that caused the injury. That’s what my task is. It’s important to know the standards. Not only the federal ANSI standards, but if there’s specific state standards you have to look at them as well and then there are the ANSI standards and the ANSI standards are not enforceable. But the OSHA standards are mostly updated with the ANSI standards. And then you’ve got the international standards, the ISO. If a piece of equipment is made overseas, rhen that company that made it has to make it so that it meets the US standards and all the countries that belong to the ISO list the standards that they expect equipment to be made by so, that’s something else that I do is I get into those ISO standards. If the equipment was made outside the United States, make sure that it came in correctly, safely.

Noah Bolmer: That’s quite a large body of law and you’re talking about local and national and international at times that you have to be aware of or at least be able to quickly reference. What does it mean in your industry to be and remain an expert? How do you make sure that you continue to learn-that you continue to stay up on these things? Is it fairly rapidly moving or is it something that you really have to actively stay on top of?

John Lauhoff: It’s not a real fast-moving situation where standards change. I’ve been in this so long now that I know the standards fairly well, but even so I go back, and I reference the standard. Maybe to make sure that I haven’t forgotten something. Now, here’s something else that’s really important on the standard. This standard has to be written before the date of the injury, which means that if you’ve got an injury that’s four or five years old, there’s a good chance that there’s been some sort of an update or a modification in that standard. Say the case= the injury was in 2000, and you’ve got a standard that was written in 1999 and another one in 2003. You have to use the 1999 one. There are a lot of cases where people don’t understand that. They’ll just go to whatever one that comes up first online and use that one. You have to be careful not to fall into that trap and say the changes are minimal. But there could be some changes.

Noah Bolmer: Do you feel when you are selected for an engagement that you typically have enough time to do all of the necessary preparation? You said that you like to read everything and do all of your own research. Do attorneys typically grab you early enough in the process of the case to be able to do so, or do you sometimes feel like you’re scrambling?

John Lauhoff: Most of the time I’ve got a lot of time. I’ve got sufficient time, but there are times when things come up last minute. About 3 weeks ago I was contacted by an attorney on a Thursday and he wanted an affidavit on Friday the next day. And he sent me probably a half a dozen depositions to go through. He said, “You don’t have to have anything real detailed or real specific or real long, but I need it tomorrow.” It took me 7 hours to put it together for him. Then I got it to him on time. That’s not the normal case. Normally you’ve got quite a bit of time and what’s really important is you write your report and then you talk about your report and actually if possible, have your attorney read the report also. Now they’re not going to change your opinion, but there may be certain terms that are stronger than other terms that they want to have input so, I don’t have any problem with putting the terms and as a matter of fact we never change my opinion. They might say, “Hey, what do you think about this as an additional item in your opinion?” If I think about it and if it’s valid, then sure, I’m going to add it in. I’m human. I miss things as well as anybody else.

Noah Bolmer: Sure, of course. Are you ever given kind of a bare bones outline for a report to start on by your attorneys, or are you usually writing them whole cloth?

John Lauhoff: Usually I’m running the whole thing myself. Rarely will come up with- actually, what they’ll come up with that- on their own, and then they’ll usually have me approve it. When an expert is listed, the attorney has to say what the expert is going to talk about so, in that case, he’ll write a paragraph or so and say, “Mr. Lauhoff is going to testify to the following.” And I like to know what he’s saying before he says it. Most of the time I get that opportunity. There have been times, though when I don’t, and that’s a question that comes up frequently in depositions. “Did you write this or did Mr. So and So write this for you?” Be honest. if your attorney wrote for you, tell [them], “He wrote it for me.”

Noah Bolmer: Tell me about your report writing process mechanically, how do you go about writing it? Do you do an outline? Do you just kind of start from the top and go? Do you start with the summary?  What’s- How do you- What’s the most effective way to write your report efficiently.

John Lauhoff: Okay, everything that you put in the report really needs to be noted as to where you got that information so it will start out with I’ve been retained by so and so to do ‘X’ for this particular case, and while we’re on that- the expert can say if you’d ask the question and it wasn’t part of what they were asked to opine on, they can say, “I wasn’t asked to opine on that.” Even if you’ve got an opinion, [you can say], “No, I wasn’t asked to opine on that.” [The attorney can come back with], “Well, don’t you have an idea? Don’t you have some kind of a feeling?” [You say], “No, I wasn’t asked to opine on that.” Another great question is, “Well, what percentage?”- I’m off the track here just a little bit, but I don’t want to miss it- “What percentage do you think company A is responsible for?” The answer is- there’s only one answer “That’s up to the jury to decide.” The only answer you can give. Now going back to the report format and it’ll start out after the introduction has been retained by so and to do such and such. I will then go into the background of the case and It’ll be in paragraph form, but every time I state a fact I will state where I got it and usually it’s out of a deposition and it will be like Jones deposition, page 10 and it’s very important. Then after I’ve gone through that, I’ll probably write a conclusion or a summary, depending on the case, you will go either way, which is where I summarize things. Sometimes there are conflicting statements. I’ll make a heading of conflicting statements and I’ll say, “Jones said this versus So and So said something else.” And there’s always a question then when you’ve got that was, “Well, who do you believe?” Well, I’m just not going to call anybody a liar. But, maybe based on all of the information I side with Jones. But it’s based on the information, not just because I like Jones.

Noah Bolmer: A conflicting statements portion of the report I haven’t heard that before. Tell me a little bit more about that and how you use that during the deposition itself, because of course reports become your reference material during the deposition or during cross-examination.

John Lauhoff: Right. But right now, I’ve got a case. It was a fire. The contention from the plaintiff is that the fire was caused by sparks from a circulating saw that got up into the insulation in the ceiling. There are two people that say that they saw the defendant’s company using these circular saws with sparks flying. All of the employees of the defendant’s company say that they did not have a circular saw. Who do you believe on that? And that is a question that I’m going to have to answer to that. And why do I believe somebody over somebody else? You’ve got two on one side and three on the other side. You’ve always got the thought of, “If somebody says something, is there going to be retribution from their employer or is their employer going to get mad at them?” Oftentimes they will say what it takes to support their employer.

Noah Bolmer: You’re analyzing the situation through your expert lens in determining the most likely in your expert opinion of the conflicting statements that have been made. Is that about right?

John Lauhoff: Yes, yes it is. What’s nice is usually the attorneys will have multiple experts. I would just have one section of it and it’s really important that you don’t say something that’s conflicting with one of the other experts. I always like to have some kind of a Zoom meeting type of thing or just a multiple-person phone call so we can all discuss the case and so each one of us knows where the other is coming from. As far as depositions are concerned, when it comes to reviewing them the plaintiff always gives the deposition first. Then the defense expert has an opportunity to look at that report and pick it apart and then the plaintiff would have an opportunity to go back and pick the defense report apart. Sometimes those reports are really good, and you can’t pick them apart because they’re written professionally, and they’ve got all the information to back up what they say.

Noah Bolmer: Yeah, there’s obviously two types of reports. There’s your initial report and rebuttal reports and because you’ve worked both on the plaintiff and defendant side extensively, you must have done a lot of each. What are some of the other differences between the two types of reports and do you have a preference between the two?

John Lauhoff: First, I have no preference between the two. I always look at a case from the opposite side and I tell my attorney and maybe I’m off subject here but I’m going to be the devil’s advocate. If I was on the other side, this is what I wouldn’t do.

Noah Bolmer: In a rebuttal report, essentially, you’re putting yourself in their shoes and rebutting them so, no that that absolutely makes sense. But I was just asking if you had a different strategy, maybe with the report writing itself or with the content therein when you’re handling rebuttals versus initial reports.

John Lauhoff: [A] rebuttal report is typically a lot shorter. You don’t go into any of the introductory information. It’s just a matter of looking at the other expert’s report. Identifying what you disagree with, not what you agree with. Leave that out. But just I disagree with this and this is why I disagree with [it].

Noah Bolmer: Let’s shift over to talking about some positive experiences. You’ve worked with many attorneys. What are the characteristics of a good engagement? What are the things that make you and your hiring attorney a good team in an engagement?

John Lauhoff: An attorney that wants to learn, and wants to listen, that’s key, I think. [I] find it a lot when I’m talking, they’re very quiet, and they’re just listening, sometimes taking notes. Sometimes either they or I will interrupt the other and I will apologize, and they’ll say, “Oh no, go right ahead there.” The one that hires you is very interested in learning everything that you know, and you’ve got to approach it as a teacher. Neither one of you can act as the superior person. You’re a team. You’re kind of equals. They are experts on the legal strategies, they know what they have to do there, but they- before this case they probably don’t know anything about the subject matter, so you have to teach them the subject matter. When you go out on a site visit it’s important to one: work closely with your attorneys. You never want to talk to your attorney in front of opposing counsel. Save all your comments until after, unless you pull them aside.

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

John Lauhoff: Don’t get all worked up about it. Just remember that you are the expert. You know that information more than anybody else and just explain what happened. Answer the questions honestly. [Keep] publications to a minimum or don’t do any publications. I have no publications and the reason for that is that things change. Maybe your opinion changes and I’m always asked, “Do you have any publications?” and I always say, “No”, but I might have written something 10 or 15 years ago and for whatever reason I don’t agree with what I said anymore. They’re going to pull that out. They are going to find that and they’re going to say, “Well, back ten years ago you said this and now you’re. saying this. What’s the deal here?” Don’t write it and do any publications

Noah Bolmer: Thank you very much Mr. Lauhoff for joining me here today at the Round Table.

John Lauhoff: You’re very welcome. It was my pleasure and you have a great evening.

John Lauhoff, PE, CSP, Owner, John P. Lauhoff Safety Consultant LLC

Our guest, John Lauhoff owns an industrial and construction consulting firm specializing in litigation support. He is a registered Professional Engineer and Certified Safety Professional, with over 25 years of experience. Mr. Lauhoff is a sought-after expert witness, with engagements across 21 states for both plaintiff and defendant.