In this episode…

Time management starts with an understanding between the expert witness and the engaging attorney. Our guest, Mr. Dean Barron, sets up expectations beforehand by directly asking what the expected hour count is, taking into account the amount of time available before the report is due. Tight time frames can be overcome with proper planning and possible extensions, he notes.

Be sure to check out the entire episode for our discussions on organization, the importance of academic achievement, and small details with big impacts on cases.

 

Episode Transcript:

Note:     Transcript has been lightly edited for clarity.

Host:     Noah Bolmer, Round Table Group

Guest:   Dean Barron, owner at twobluecats.com

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Balmer, and today’s guest is Dean Barron. Now, Mr. Barron is the owner of two bluecats.com, a full-service statistical consulting firm, with specialties ranging from regression analysis to Ph.D. thesis preparation. He is a sought-after expert witness with over 25 years of experience, and he is a published author. Mr. Barron holds an MS. in statistics from Cal State Long Beach. Mr. Barron, thank you so much for joining me here today at the Round Table.

Dean Barron: Well, pleasure, I appreciate and thank you for inviting me.

Noah Bolmer: Of course, let’s jump into it. You have an impressive background with a career that touches on nearly every aspect of statistical analysis. How did you first get involved in that, and how did that lead to expert witnessing?

Dean Barron: I always felt numbers were my friends and I always gravitated towards statistics, even in grade school so that part was pretty clear to me. But in terms of eventually becoming an expert witness, that was not planned at all. In fact, I was performing some statistics for a bank up in San Francisco and I would stay for few days at a time, up in the Bay Area, I went to the– there was a synagogue I liked to go to, and I would meet people there and great, but I don’t talk about business. Then I bumped into someone that I knew, and I said to her, I said, “By the way, what do you do?” and she said, “Oh, I’m a lawyer.” I said “Oh. That’s interesting.” [She said,] “What do you what do you do?” I said, “Well, I’m a statistician.” and she paused for a moment, and she said, “You know, we’re losing a court case pretty badly. Would you be able to help us?” and I said, “Well, I’ll take a look and if I can help you, I’ll help you, and if not, I’ll try to find someone that I can suggest that you contact, and she said, “Okay, that sounds fair.” Thankfully, not only was I able to help, it turned the entire case around and they wound up very favorably resolving the case, and then they referred more cases and then they had colleagues and compatriots, and so really that was how it started.

Noah Bolmer: That sounds like a really excellent first experience, although you did kind of hit the ground running with that case, that was already losing. Let me ask you first, before we talk about the case, Let’s step back to kind of be the call the vetting process. What sorts of questions did they ask?

Dean Barron: Well, that very first case probably was not typical because they knew that I hadn’t done statistics expert witness, so there were no conflicts of interest, and they were losing. They knew either I could help them, or I couldn’t, and there really wasn’t much else to ask. Typically, for a new case, of course, conflicts of interest. Is it something that I have an expertise in? And it doesn’t have to be- and I guess this is a general thing, I think whatever someone is an expert witness in, it’s a good thing to continue consulting professionally outside of jurisprudence. Because there are things that never come up or don’t typically come up in a court case, but you would pick it up if you’re doing consulting and analysis. And I’m sure that it’s similar for other fields of expertise as well.

Noah Bolmer: Staying engaged in your profession is important to being an expert witness.

Dean Barron: It is, and I definitely think it’s important to continue whatever research someone’s doing in their field publish, keep publishing, go to conferences, network at the conferences. And it’s funny because post- during the pandemic now, I think it’s easier to network because I can go to conferences all over the world. I don’t have to travel. I just log in and usually, they’ve got networking events that all the conferences do, and so- and people will show up who never would have shown up. They may be from other countries [or] other continents. I think that’s important. I also have a few things that I think are, for me at least, important. I always embrace whatever presents itself. I like the lawyers to know that I don’t try to force an outcome of an analysis. Whatever it is, that’s what it is and so, that’s one-

Noah Bolmer: Yeah, but before you move on, let me ask you about that. Have you found yourself in situations where you have felt pressure to say that the outcome of an analysis is X,Y or Z?

Dean Barron: Well, the answer is both. I have had times where they will– a lawyer will want me to have a particular outcome. Obviously, I won’t do it unless it turns out that their desired outcome actually was the one. But I have had attorneys where they want me to find a certain way and if the data supports it that’s great, but that’s a boundary that I don’t allow a client to cross.

Noah Bolmer: Do you- are you aware of those issues going in? In other words, can you kind of tell from the outset if that’s going to be a thing or is that something you’ve had to deal with that you find out after you’ve conducted an analysis that it’s not going the way that your engaging attorney wants and they want you to either redo the analysis or change the numbers or-

Dean Barron: Usually, one of two things happens. One is the attorney doesn’t necessarily have to incorporate all of my opinions and so for me, if it’s something I deal with, sometimes I don’t find out until afterward and I say, “This was part of what I found, I don’t see it.” [They’ll say], “Well, we decided that-” Well, they don’t have to cite all of my opinions. More commonly, is that it’s on the other side that I’ll look at analysis and an opinion just something that you can sense like, “Okay, the lawyers told him or her this is what they need to conclude and then they find some weak or circuitous logic.” And I’m thinking, “Why it-“and it’s is like, “Oh.” Actually had one case that was really interesting. I was a neutral and one of the sides presumably knew what the result of the analysis was because they had the data too, presumably. Okay, it wasn’t favorable for them, but it did require a very creative analysis. Maybe they didn’t know. Maybe they didn’t- I can’t – I’m not an expert psychologist. Don’t try to figure that part out, but those are the main cases that my lawyer, not using all of my findings ,or realizing the other side. It’s it it- they just- they were forced to come up with an outcome and they found something that would support it. Usually those are- those have been pretty straightforward to oppose.

Noah Bolmer: When you’re engaged as an expert, are you typically- or sometimes put on a team with other experts?

Dean Barron: Sometimes, my field being statistics- the answer is I’m almost always engaged with someone else, but it’s not necessarily another expert witness, because maybe the data came from a corporation. They send it to the lawyer, and then I have [it], but sometimes there will be other experts involved. If it turns out to be a product that- it’s important also the product, so for example, if there is-, if it involves a baby food, I’m not an expert on baby food. I’m an expert on the data that’s related to analyzing how to do sampling and how to do surveys and so really for any product of course, but maybe there’s something characteristic about the product, that’s important whether it’s medically related or food or that can- One came up that was critical with prenatal testing. There was an error with the prenatal test, and of course interacted actively and often with the MD.

Noah Bolmer: Sure. When you are working alongside other expert witnesses, what’s that relationship like? Is it collaborative or are you pretty much staying off doing your own things? How much interaction is there?

Dean Barron: It varies. There have been times where there is interaction and it’s a difficult thing because I don’t want to overstep my boundaries, and sometimes there can be an overlap, like for example, I’m a statistician- maybe I’m a statistician collaborating with an economist. There’s some overlap and I know an awful lot about the things that fall in my domain. On the other hand, I don’t want to tell the other expert what to do because that’s not my place. There’s a balance.

Noah Bolmer: Right. I guess there’s not much that you can’t other than, “Hey, you told me that already.” You’ve worked for both the plaintiff and defendant side. What are some of the differences?

Dean Barron: But the- and thankfully I’ve also worked as a neutral so, I’ve been on all three sides. One of the differences I know is that if it’s dealing as it typically is with corporations, a defendant who’s a corporation is very at least my experience has been more focused on the monetary outcomes and a plaintiff, which let’s say a plaintiff that is not a corporation they’re typically more focused on the personal aspects of the app. For example, in disability, Social Security disability cases, there could be someone- it’s a real human. It could be someone who has- who could be- someone who has disabilities, challenges, hardships. It’s a very personal thing. Yes, there’s the statistics and the data, but the outcome is really important on a very personal level and sometimes they get the privilege of working with attorneys who, if they’re not exactly working as a pro bono it might be very close to it and the attorneys are also very sympathetic. That’s atypical- but probably most are somewhere in between. The lawyers don’t want to spend millions of dollars, if they’re not going to win the case, even if it is people who were discriminated against or weren’t paid properly. They also have the eye on how, what their cost is.

Noah Bolmer: Let’s back up a little bit to the report writing process. Do you have any specific strategies that you employ in terms of either organization or collecting all the mountains of paperwork that you might get from your attorney or anything like that?

Dean Barron: Yes, and even before that, to talk about the various papers from the attorneys, attorneys think through- at least my experience, they know which documents they want to give me. There are-, I have had cases where the attorneys specifically do not [want] me to have a particular official document from the court. I don’t question, whatever they say is fine, because it’s their decision, their- and I did have one attorney very specifically and that’s how I learned not to even- don’t worry about it. They hadn’t given me the complaint. It was a very high-profile case and they didn’t give me the complaint and I wasn’t like- I thought they had forgotten and I said to them, “I didn’t get the-” and the answer was very stern. [They said], “If it’s important to you and critical that you have the complaint this is not a good match and [we] will retain a different expert.” Okay, don’t give me the complaint. I’m all right. I don’t need the complaint. I mean, I’m doing an analysis. Give me the data and I’ll do the analysis, so I don’t have the complaint. Okay, fine. Usually they give the but-

Noah Bolmer: You had- That’s a situation I haven’t heard of before. That’s interesting. I wonder what the strategy was there?

Dean Barron: Yeah, so now I ask. Impartially, I tell the attorney whatever documents you wish to send to me, please send. That’s it. No discussion. They know- I’m sure they know that you know, it’s fine. So, OK, so that is- now in terms of organization and this is something I actually tell my students at the university that they should have a template of directory structure on their computer and for me I call it template. It has subfolders, data output, programs, documents and I have this structure, so, when I get a case, immediately I start with that structure and then that way I can handle, maybe they’ll send me an Excel file, maybe they’ll send me a do document. Maybe they’ll send me a text file, whatever they send me, so I don’t have to think about it. They send it to me, I put it where it’s supposed to go, and then of course, I’m writing it [in] the documents. Some things are always the same, my name, how many years [I’ve been doing this.] Where I went to my degrees and so I have that and then I’m always starting with that and so they match for all the cases in the beginning and then of course, after that, they’re not the same thing. But  let me get interesting and-

Noah Bolmer: Sure, sure.

Dean Barron: – there for me and I don’t know if everyone has this in their specialty, but for me I always mention every data file I’ve received and every document and it’s early up and, maybe there’s thirty different things I got. Maybe they’re five different. Maybe they’re two, maybe nothing, but whatever it is, I list it and then I find it helped me too in my writing because I’ve got the list already, I know it’s one of the documents I can go-. I can refer to what I call it, reference one through whatever and so I’m always able to refer. That’s a little bit about the structure and how I approach it.

Noah Bolmer: Sure. Is there any difference in the strategy for when you’re preparing an initial report versus a rebuttal report?

Dean Barron: I would say in terms of the statistics, not really, and the reason why is this, I approach whatever the analysis is and whatever the data is and then I’ll be doing analysis. If it’s rebuttal, I think it can be I’d say my style. I usually like to show no, the method given by the opposition expert is inferior or incorrect or replaced or made obsolete whatever by this analysis. To that extent, no, I’m still doing an analysis. I’m still replying. Now it is true sometimes, maybe there’s something and I’ll limit it. Only need to limit it to saying no, what was stated is incorrect and this is why and I may not have to actually do an analysis too, but usually I do.

Noah Bolmer: When you- when we first started talking, you told me that your first case you were kind of brought in right in the middle of the process and the walls were on fire and you turned it all around. Typically, do you feel like you’re brought in at an appropriate time and you have enough time to develop your reports and discuss strategy with your attorneys? Do any prep work?

Dean Barron: I’d say it’s between about half the time, so it used to be worse. I’d say that the attorneys are getting in my anecdotal experience, they’re figuring out they could benefit from statistical expert sooner than they used to, but the other half of the time, no. There. I mean like with,- I don’t know, there would have been an opportunity with my first case, but obviously I could have benefited from more time but it didn’t really matter because I was able to figure out in that case. It- when they gave me the materials and I read through it.  It turned out that the other side had redacted computer code, but they didn’t use the word redacted with the old Xerox copy day. Okay, and I was looking and it’s like I think they covered something up here. I think there’s something underneath like a sheet of paper that’s covering up something and I was able to derive that there was something missing. Sure enough, that’s what it was. If I had more time in that case, it probably wouldn’t have mattered. But when it does matter is- I had a case where I was given hundreds of Excel files to analyze statistically and each of the Excel files had 100 sheets-

Noah Bolmer: Oh boy.

Dean Barron: –and I was given I think it was about a week and half. Yeah, it brings up something that I learned. Everything was eventually fine, but sometimes on a deadline I did learn it’s a really good idea to talk about hours that are expected to be put in. If someone gives me a case which probably should have given, I should have had about, let’s say, 200 hours to prepare and I have a week and half I don’t expect complaints about putting in every available hour that it can possibly do, but sometimes there can be a misunderstanding, so if it’s very late, I’ve learned [to] make sure that they understand that the compressed time still may require a lot of hours and just so you know that they’re not surprised and to clear that up when it’s late in the process. Thankfully usually it’s worked out okay, but half the time it’s very compressed.

Noah Bolmer: Absolutely. As you know, there’re a couple types of expert witnesses or really a couple types of engagements. You can be brought in as a consulting witness. You can be brought in as a testifying witness. You might end up doing depositions. You might end up in front of a jury, and sometimes you don’t even know you have a pretty extensive career, so I imagine you’ve been in all of the above situations.

Dean Barron: I have, and I add to this that we’re in a pandemic era and so all the things that I may have grown accustomed to before the pandemic are different now. I prefer Zoom. I- they’re and also thankfully, almost all the cases have resolved before trial so they’re always very few court appearances. Thanks. Okay. Thanks. But they did exist and now even then, there is almost always the option of being on Zoom so in terms of what happens and I’m not-, I don’t think the lawyers always know. Yes, you’re going to have a I mean, the standard way used to be right declaration have an interrogatory dump out all your emails and computer records, have a deposition, get a response from the other side. Reply to it and it was like that. I don’t see that as regularly now. Maybe it’s a function of being called in later. Recently, I don’t know as I said, but it the things about being the court, thankfully unusual. Even though you’re not in court, you still have some of those similar functions. You might have a virtual deposition, for example. Oh yes, I’m not sure that the change would be because of being on Zoom or not, but I will say that there was a difference before and after I got my master’s degree. Before I got my master’s degree and of course the- plenty of expert witnesses in whatever field, maybe they have a bachelor’s degree. They don’t have a master’s degree. Okay, fine. I was in that category at first and I found that all the depositions, literally 4 and ½ a day which personally I don’t think either talk about my background and I talk about my opinion and I’m patient with it and not to get on the defensive so it’s fine and so, I knew it but it really was 4 hours every deposition basically underneath it saying, “You don’t have a master’s degree, and you’re claiming that you’re an expert, that unspoken question, but that was what it was and okay, fine. I did notice that after the master’s degree, those questions vanished, and by the way it always was favorable. There was never a case where they said no, you’re not an expert. It was always right.

Noah Bolmer: The academic credentialing though does give you some gravitas, a little leg up.

Dean Barron: It does. I think they- I think what they- I’m not an attorney, so I can’t totally speak for them, but I think they realize there’s no purpose to that, like trying to say, “Well, you don’t have a Ph.D. or you’re not a Nobel Laureate or you’re not filling the blank. They realize there’s no purpose to it.  I’m an expert. That’s fine. They start off asking about where I got my degree. I think because they’re interested, but they go to the material.

Noah Bolmer: Do you have a couple of interesting cases that you can tell me about? The kind that have either changed the way that you approach expert witnessing or have been important to you and your career?

Dean Barron: Yes. One of my early cases was for a plaintiff against the retail company and it went on for a couple of years and I could perceive that even though my opinion was that it violated statistical opinions that it violated the Labor Code, and I did my analysis and elegant one. Actually, it was a very advanced analysis. I did the regression analysis on the various data, but I could perceive that the other side seemed they just didn’t hold my opinion, that’s all, but they were a good firm. OK, so after a couple of years, the case resolved favorably for my client and the defendant, I was on plaintiffs’ side, the defendant contacted my attorneys and said, “We really like Dean. We like what he did. We like his analysis. Can we retain him for our future cases? Will you release him to us?” And my lawyer did and to this day the other side is a client on the side of defense.

That’s amazing. It really was and it is and one of the things beside it being kind- sequence is that I learned it’s very important to be on both sides and additionally neutral if the opportunity because then I know what I would critique if someone presented my analysis because I’ve been on the other side, whatever side I’m on- I’ve been on the other, so it really helps and I think it increases the quality. That certainly is one case [that is] very memorable. Another case that was an international case, it was with the United States Attorneys, but the defendant was a Portuguese manufacturer where the cork is used for wine.

Noah Bolmer: Okay.

Dean Barron: Now there is an issue of wine getting tainted, which in in the industry I learned it’s called corked because there is a chemical called TCA and I’m also a member of the American Chemical Society. I’m a fellow in the American Institute of Chemists, so I like things there with chemistry and generally speaking at that time if four percent was considered the maximum acceptable percentage of tainted wine bottles, if four percent was bad, that wasn’t great, but it was okay. The plaintiff had an experience where they had an international tasting, and the bottles were tainted, and they suffered. They did suffer a lot of loss. The question was, from their perspective, it was the fault of the cork manufacturer because they’re the ones that caused the- Yeah, that’s where the statistician came in and boy was, I called in at the last moment. They literally were about to lose. Later, literally days later and they said, “If you can help us.” That was one where I had I think it was 3 days maybe it was 4. In fact, I remember I did a lot of the analysis on a train going up to see the attorneys on my side and then get deposed so what happened? Was this the wine manufacturer said that one of 12 cases were tainted which would be over eight percent-

Noah Bolmer: Right.

Dean Barron: – and that’s why the defendant was about to lose. There is no defense. If it was eight percent and the acceptable at that time was 4. I examined the process by which the wine manufacturer analyzed their cases. What they did because they weren’t statisticians. They would keep track of the case. I think they had 144 cases and 12 of them were tainted and I looked at the data and I realized this is by the case not by the bottle and so it was consistent with one bottle in that case being tainted. It wasn’t 12. It could have been one they didn’t keep track [of]. I don’t know why they didn’t keep track, but they didn’t. When they deposed me, I said, “It’s consistent with not all 12. It’s consistent with one, which not only would have been less than one percent, 112th of their estimate.” They settled the case the next day. Wow. Yeah, those are two cases that come to mind.

Noah Bolmer: And you said this was an international case?

Dean Barron: It was, and it may have been my first international case. It was international because the cork manufacturer [was] in Portugal. Even though the lawyers were in the United States, the defendant was in in Europe. Now, since then, I’ve had many- thankfully many clients. As a consultant in Europe and Japan, and I’ve had expert witness cases in Hong Kong as well, one of the things that’s different now, maybe because I’m a statistician and I deal with data, but it is important to note that the data is stored in foreign languages, and foreign languages are not always read properly, even by statistical software.

Noah Bolmer: Sure. Commas and periods are used as different separators in different countries.

Dean Barron: That’s right. And it can get even more so that a digit may not even get recognized at all because they write their digits differently, and maybe it’s a special character and so there are different things that are very special to different languages and this one’s not looking at data. Certainly, when you’re looking at documents, it isn’t always in English maybe it’s in French or- That’s another aspect, yes.

Noah Bolmer: Is there anything else that is- strikes you as different about working in different venues. In other words, when you’re working either somewhere in another country or another state, or even in other county. There [are] different laws, there [are] different frameworks. Is that something that concerns you as an expert witness or I guess as a statistician or is that something that largely doesn’t impact your work?

Dean Barron: Starting from the statistics point of view, I analyzed data where I don’t say, “Oh, that’s French data, I’m going to analyze it differently.” That part [is] the same but, for example, let’s take labor law, I’ve had several times where knowledge of Belgian Labor Code could have been important, and of course it’s completely different. Same thing with British. I had a potential case where it was someone in the United States doing a project for a company in Paris, being paid by a company in England, and it was a little tricky to know which labor law applied? Which employment law applied? Someone if they’re 40 is the important age in the United States. But it isn’t that number everywhere in the world. Overtime is another one even within the states, of course, there [are] distinctions of what employee gets overtime, but all of those are different state to state. Some of them are different city to city. In California for example, there [are] different minimum wages applicable in different cities and then depending on the year, may be the different sized companies. So same thing with the area and same thing with other states. What you do is research. I got a couple of textbooks on International Labor Code. I got one on Belgium and you learn.

Noah Bolmer: So, you find that for some of these cases you- there is a little bit of additional research that you need to do prior to, say, writing your report.

Dean Barron: Well, in my case that research I didn’t bill, I didn’t invoice. I didn’t feel they were retaining an expert and if I needed to learn about International Labor Code for a case. I didn’t think it was- I thought that was my education interest, but there certainly would be cases where it would be billable. If it’s something more extensive or it really is- there could be cases where it’s different and if I felt it was something that was invisible, I still would talk about it first, like, yes, I’m an expert, but this is what I don’t know and I don’t think I should be responsible for having [to] know it and so what should we do, right? Not happened. I’m not sure that would be something I’d really have to think about to say, No, this is a special request by the attorneys and it’s their responsibility, not mine.

Noah Bolmer: Before we wrap up, do you- I’d like to hear your opinion on kind of just the general relationship between experts and attorneys. What are the things that make a positive engagement? What are the some of the engagements that you’ve worked on that you’ve really had a great experience with and that you wish other attorneys would do or that other experts should be doing to have a positive, successful engagement.

Dean Barron: There are a couple things that I hold very close to me as a human and as an expert. One is to avoid anger and arrogance in general and the other is to help animals and humans. Now those two things may not sound like expert witness sort of material, but when you say, “When is it that there’s the best relationship with the attorney?” I think when they overlap with those core essences of myself, then, that kind of transcends everything because the profession of being a lawyer is different than being a statistician. Yes, there can be times [when] I will say that I’ve been with head lawyers who are interested in various research, and I’ve consulted them on their research and of course that [is] always nice. I love research, but really underneath it all it’s really the essence. It- that’s really the- and I can tell- if I think I can tell, that isn’t what they’re looking for, it’s not that I reject them. I don’t mean that at all. But you’re asking, what is it that fosters the best relationship and if [I] think it’s not anything specific with the profession, it’s the essence of the human.

Noah Bolmer: Those are very wise words and some sage advice. Mr. Barron, thank you so much for joining me here today.

Dean Barron: A pleasure.

Dean Barron, Senior Statistician and President, twobluecats.com

Dean Barron is owner of twobluecats.com, a full-service statistical analysis consulting firm with a broad range of specialties, ranging from regression analysis to Ph.D. thesis preparation. With over 25 years of experience, he is a sought-after expert witness and published author. Mr. Baron holds an MS in statistics from Cal State Long Beach.