In this episode… 

It is important for expert witnesses to develop a thick skin, and let the opposing side’s attacks roll off. After the first couple of cases, our guest, Mr. James Lewis recalls the realization that cross-examination is not personal, rather, attorneys are simply representing their client to the best of their abilities. He notes “It took me a while to realize they were just doing their job. Their job [. . .] was to advocate for their client. No matter what area of expertise you choose to work as an expert, you have to understand that they’re going to ask tough questions.”   

Check out the full episode for our other discussion topics, including taking retainers, credibility, and using technology. 

 

Episode Transcript:

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: James Lewis, Owner Total Transportation Training, LLC and Valley Automotive Consulting

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome James Lewis to the show. Mr. Lewis owns Total Transportation Training, LLC and Valley Automotive Consulting. He’s a published author, public presenter and sought-after expert witness with over 12,000 written opinions in 800 trials. Mr. Lewis holds a master’s in education from the University of Maryland. Mr. Lewis, thank you for joining me here today at the Round Table.

James Lewis: Absolutely, thanks for having me.

Noah Bolmer: Of course, let’s jump into it. You’re an extremely active and experienced expert witness. Tell me about your two LLCs.

James Lewis: I started my first one, Valley Automotive Consulting, in 2001. I was an in-house expert at a Philadelphia law firm that specialized in lemon law and dealer fraud cases in the automotive world. We also branched out and, because of my background, started investigating title washing, and those cases were almost criminal. I was part of several class action lawsuits in 2008 because I had been a commercial driver of sorts since 1987 and had started Total Transportation Training. The initial intention was to go in and do mock Department of Transportation (DOT) audits on small trucking and towing companies to make sure they were compliant with all rules and regulations. Then I would offer training to their office and safety personnel and their drivers. Then, I transferred to expert witness work investigating truck crashes for defense and plaintiff sources.

Noah Bolmer: You say you transferred naturally. How did you first become an expert witness? Tell me a little bit about that.

James Lewis: I was a service manager. Unfortunately, that dealer group got in a lot of trouble buying wrecked cars at auction, fixing them, and selling them without disclosure. I ended up getting fired in the process because I argued with the GM for saying what we were doing was not right and the law firm that was handling this class action lawsuit contacted me. We talked, and I went to work for him. I had never done any kind of expert witness work, and the attorneys walked me through everything I needed to do. It was a rough start. Then I was handed an incredible volume of cases and off to the races.

Noah Bolmer: What were the rough patches and how would you advise newer expert witnesses to avoid those sorts of caveats?

James Lewis: Well, there are three things. First, I had no idea what I was doing. I was talking to attorneys who spoke fast, and I didn’t understand what they were saying. I was thrown to the wolves and had to do what I had to do. My lack of training and understanding made it tough. When I first started testifying, the defense attorneys for these car manufacturers were trying to belittle me on the stand and dug in deep with some of their questions. It made me mad because I thought they were trying to put me out of a job and disqualify me. Ironically, after the first couple of trials that I went through, I was shocked that the attorneys that I worked with wanted to have lunch with these guys. It took me a while to realize they were just doing their job. Their job as the car manufacturer’s defense attorney was to advocate for their client. No matter what area of expertise you choose to work as an expert, you have to understand that they’re going to ask tough questions, as long as you’re ready to answer them.

The other area was social media. I’m ADHD and OCD. I love to talk to people. I had no experience, but at the same time I became a host at the edmunds.com town hall. There were about 10 of us that hosted, and I started posting stuff about all the cases I was seeing. I made some comments on edmunds.com and I guess I didn’t realize that the Internet is forever, which shows as an expert witness, you’re not unbiased, which is huge. It’s incredibly important. You have two things. First, you need to have an attitude like a baseball umpire. You have to sit behind home plate and call balls and strikes and not take either side. You have to be fair. If you’re not, whatever you say sticks with you forever if you are perceived as unfair or biased. The ugliest word in the expert witness vocabulary is excluded, and if you’re excluded on part or whole of your testimony, it will follow you forever, and there’s no way to fix it. It can happen very early in your career and make for a short career, unfortunately.

Noah Bolmer: When you say, “Can follow you forever”, how does that happen? What are the mechanics of that?

James Lewis: Every attorney has access to FindLaw and sources like that, and in 2001 Google wasn’t a big deal. Now it is. You can look me up in any source and find all the books and articles I’ve written. You can find pictures of me singing karaoke in New Mexico.

Noah Bolmer: Sure.

James Lewis: You can see my new motorcycle on my social media account, and you can see all that stuff. The problem is you can also see if I have been excluded in a trial, arbitration, or anything like that. Unfortunately, you’re damaged goods. That’s just a fact.

Noah Bolmer: Let’s dig into social media. What are the dos and don’ts of social media for expert witnesses?

James Lewis: Put up pictures of your kids and your dog but stay away from controversial stuff that will alienate people and impact your bias because they’ll make a story up. There’s a ruling that social media can’t be used to harm or exclude an expert witness. But the point is like Mr. Miyagi said, “You’re either karate, yes, or karate, no. Maybe squish like grapes. Don’t take the chance.”

Noah Bolmer: When you first get a call from a prospective client, what are the things you like to address with them? How do you vet a client? How do they vet you? What are the things that you’re looking for and the things they’re looking for when you are addressing a potential engagement?

James Lewis: I know the attorney looks at qualifications and credibility. Those are the two big pillars of any expert witness.

Noah Bolmer: What do you mean by credibility?

James Lewis: Just like the social media thing. I’ll tell you a quick story. I was talking with a defense attorney in California. I was working on the case, and this gentleman’s name came up in the documents that the attorney had sent me. I noticed this gentleman was designated as an expert in the case, but I never saw an expert report. I never saw that he was deposed, and I never saw anything from him. He was supposedly on the same side as me, and I just thought it was weird. We’re both transportation safety guys. I asked the attorney. “Hey, what’s up with this guy?” He said, “You replaced him. I called that guy a ‘jukebox expert.’” [I said], “’Jukebox expert?’ What is that?”  He said, “You put your quarters in, and your favorite song comes out. It’s well known in the community that if a lawyer can’t get an expert to say what they want them to say, they call this guy.” My head exploded. I’m like, oh, my God, I hope nobody ever says that about me because it’s horrible to have that kind of reputation. You’re done in the industry. That’s something I vet attorneys on. When an attorney is overly pushy and aggressive and says, “I know what happened to my case, and I want you to say this, this, and this.” I say, “Sir. I’m going to stop you right there.”

Noah Bolmer: How do you avoid that sort of thing?

James Lewis: I don’t let them get there to begin with. I can tell immediately. “I’ve called three people, and nobody would do what I wanted them to do.” [I’ll say], “I can’t either, Sir. Have a great day.” That’s something you learn from experience. The point is, if they’re pushy like that, they’re pushy for a reason. They’ve got a whole case, and they want you to save their case and an expert witness absolutely cannot save a case. They can bolster a case and reinforce it. They can’t save it. That’s exactly where it comes from.

Noah Bolmer: How often does something like that come up? How many cases have you had to turn down for moral reasons? You couldn’t take it because they were trying to push you to change what your expert opinion actually is.

James Lewis: I’ll say this with a caveat, only a couple because people don’t call me knowing I don’t play like that. They got the referral from another attorney, and they said, “Don’t try to push this guy around because it’s not going to happen. He’s an umpire. He’s going to call balls and strikes.” Here’s something a lot of people don’t realize as an expert witness. I’m not trying to get off our current subject, but your job as an expert witness is to cover the good, the bad, and the ugly for the attorney who retains you. They need to know, especially in defense cases. I love working on defense cases. I’ve talked with this one gentleman named John, and we’ve done several cases together. He’ll retain me, send me all the docs, and we’ll talk a week later. He’ll say, “All right, give me the bad news.” That’s exactly what he’s looking for. I’ll say, “Well, you’ve got violated hours of service. He had a DUI 20 years ago. Now, he’s a commercial driver. That’s weird.” They need to know that stuff. They may not know it otherwise. If you can investigate, give that information to them, and help them because they’re going to go back to their client and say, “The other side is requesting this level of money for this crash. Your guy is partly at fault. He was driving outside of his hours of service. We’re done and need to go ahead and settle this case and get it done.” That’s the information the attorney needs to know. Instead of dragging it out six months, spending time and money, to come to the same conclusion. That’s where you can help.

Noah Bolmer: When you accept an engagement and don’t have any major objections, do you put any special terms in your contract?

James Lewis: My contract is simple. I have a retainer. As soon as you sign it, my retainer is paid in full. That is the work. Now if my work goes over that amount, I’ll bill additional, but here’s the problem. Some attorneys want to pay a retainer, get you to do an hour’s worth of work, give them a heads up, call, and then you’re done. I’m not that guy. Don’t be that guy. Don’t be that girl. I’m not saying it’s all about the money, but it is about the money because I’m going to put 7, 8, or 10 hours into that initial phone call knowing that’s going to be part of the casework and I’ll bill for it down the road. That initial phone call tells you so much, though you have to feel them out. You have to understand where they are coming from. One of the biggest things is what’s the deadline is now. I’d love to meet Johnny on the spot for the quick deadlines. I do because I’ve got a couple of friends in the industry who will not touch a case unless they have two or three months to work on it. I need 2 days. I need a week. I’ll get it done because what expert witnesses don’t understand about the system in a lot of areas is an attorney hopes to settle a case all the way to the end before they have to start designating expert witnesses. Now there are 30 days until the expert designation time, and they need to find somebody, and right now. It leads to another thing, but here’s the thing, if you’re not willing to do these quick cases, you’re not going to provide much service for people. They can find anybody that takes six months to do a case, but they can’t find anybody to do it in a week, and that’s valuable. People know it, they like it, and don’t abuse it. This one’s got six weeks. That’s fantastic. An attorney will say, “I’ll give you two cases I need next week.” I say, “Not a problem, let’s get it done.”

Noah Bolmer: Let’s dig into that a little bit. What are some of the challenges with those short cases, and how do you handle them? How do you prepare for those? I need this in one day. I need this in 12 hours. How do you deal with that?

James Lewis: There are a lot of moving parts to it because I’ll talk to the attorney and he’s not the managing partner or whatever at his firm, and that’s fine. Not everybody is, and I’ll say, “You tell me you’re going to retain me, and I’ve got a case deadline in 10 days. Give me all the stuff. I’m going to start working without having a signed retainer and a check. I’m going to do it now. Send me what you’ve got with the complaint, the crash report, two depositions, and whatever. I need the driver’s qualification file. I handle those and your transportation basis. I need the DQ file, which is huge in our industry, and I need the equipment information, the photos, and all the stuff. I don’t get a retainer check until 12 days after the initial call, which has passed your deadline, and you didn’t send me the rest of that information until the day before the deadline. That can be a huge problem, especially since I might be in a deposition or trial that day or have another case for someone else, I have to knock out.” That is huge, people dragging their feet. If you’re going to call me or anyone else and say, “I dropped the ball, and I have 10 days to fix it.” Okay, just be prepared to do what you need to do to help me out. I need all the documents right now and I need to not worry about whether I’m going to send it. I’m not going to send a report without a retainer. I’ve been burned, and it’s never going to happen again. I have 40 grand in fees that I’ll never see again. That’s money I could have spent on my grandchildren’s college. It’s a big deal.

Noah Bolmer: You’ve addressed one of the things that makes a great attorney-expert relationship. In your experience, what are the things that make a positive working relationship between an expert witness and the attorney in your experience?

James Lewis: Reliability and honesty-that sounds cliché and basic, but that’s it. They call up and go, “I got this case. I don’t know what to think about it. I just need to know.” You tell them, “This case is horrible because of this, this, and this. Here’s what’s going on.” They love to hear that they want to hear that, and I know that a lot of experts don’t want to give the bad news to the attorney. They need it. They must have all the facts laid on the table to decide on how to try their case, settle it, or whatever they’re doing with it. If they don’t have that information, you’re handcuffing them, and that’s not cool. They’re not going to like you for it, and they’re not going to use you again.

Noah Bolmer: Let’s talk about expert witnessing more generally. What do you feel is meaningful? What do you feel is important about being an expert witness in general?

James Lewis: There are two things I love about it. I love strategizing with attorneys because I’ve done it and been questioned so many times. I know what the other side is going to say when I write this sentence this way.

Noah Bolmer: When you say you “write this sentence”, are you talking about your expert report?

James Lewis: Right. In my expert report, I’m going to write a sentence a certain way and it’s going to prompt a question from the other side, and there you go. Another other thing is you’re held to the four corners of your report in the sense that if you don’t write about it, your attorney can’t talk about it. They can ask you, but they can get an objection. The objection can be sustained, and then you’re stuck. Even if you think it may not be important, put it in the report. That one little sentence, “By the way, he might have been fatigued.” OK. Where did that come from? Now, your attorney can ask you that question because if you don’t mention it, they’re going to say something about this in his report, or he can’t talk about that, and you can’t. Reliability and honesty are there. It’s a business relationship, but at the same time, it’s a personal relationship because I have to give you all of the character, morals, and everything I’ve got to make this happen. Once you sell out once or twice and bend your rules, you’ve messed yourself up for a career.

Noah Bolmer: How has the role changed over time? I have a few different categories I’d like to ask you about. How has the work itself changed? How have attorney expectations changed, and how have the logistics of getting things done changed?

James Lewis: Technology has helped a lot. If you’re an older guy or girl and you want to be an expert and are anti-technology. Forget it. Everything is in Dropbox. Everything is a link. Everything is in Microsoft Links or something, so you have to be attuned to technology. You have to understand how to download your doc[ument]s and all that. My biggest thing was downloading videos. I messed around and figured it out. I was lucky at my first law firm back in Pennsylvania. I sat next to the company’s IT guy, and it was like going to a Microsoft class every day. It was great. This was 2001-2002, but he taught me everything I needed to know, and I still remember stuff to this day, 23-24 years later. The problem with technology, especially with younger attorneys, is they’re used to having everything instantly. “I sent it to you. Have you reviewed it yet?” Well, the Internet did wonders, and they got that file to me in 12 seconds, but it still took me an hour to read it. So, understand how that works. Technology helps to a certain extent, but it doesn’t take away from the actual human factor of reading, understanding, and writing notes. Speaking of notes, never keep notes. Never make notes, ever, ever. That’s one of my biggest rules. Do not make notes. If you make notes in California, they don’t want an expert report because one’s not required in most California cases. I just started taking notes and two years ago I learned to never do it again. I never took notes, and then I was like, “Well, for this one, I will.” Then, I exchanged my notes with the attorney, who sent them in full with all of my highlights, different colors, scratch outs, bolds, and a few dumb comments like, “Why the heck is this guy doing that?” in my notes because that’s something I wanted to think about while I was writing. The problem is now all seven attorneys on both sides of this case, have it all. The experts have my notes. That was horrible.

I don’t keep notes, and people say, “Sure, you don’t.” I share, “No, I don’t take notes when you give me the documents for your case, and they’re all there.” They have 3 depositions. I have a crash report, a complaint, a driver qualification file, a couple of other statements, and some pictures. I downloaded everything and listed them in the resources I reviewed for this report. I don’t open them until I’m ready to start writing, and they go into my report, and there’s no draft. There are no notes. There’s a report, and when I’m done with it, I save it, spell-check it, and send it. There are no notes. What you’re getting is the official formal production, and there are no scratch outs, no highlights, and no, “What the heck are you thinking?” Even an old guy who has been doing it a long time can make a mistake like that. I did.

Noah Bolmer: Let’s talk about advertising and finding work. How do you find work? Has it changed throughout your career as an expert witness?

James Lewis: I’ve had a unique upbringing, so I wasn’t an expert before I started with the firm in Philadelphia. They hired me, taught me how to do it and I worked there for eight years. I went back to the trucking industry and started my own training group, which is Total Transportation Training. I worked in the trucking industry. My wife and I had this big RV, and I would travel around and do audits and training. The income was okay, and it worked fine. I became a terminal manager in the trucking industry and from 2008 to 2016, I was doing 15 or 20 cases a year. That’s about It. The majority of those were through Round Table [Group] Thomson Reuters. I’ve also done some for a couple of other expert witness consortiums, and that’s all I did. I worked a regular job, and I did this on the side. Two years ago, ES approached me, and I’m on my 175th case in under two years.

I don’t do anything related to advertising. I guess I just stumbled into the ultimate situation. It’s great. I have a farm. I work from home. We’re all remote employees. We travel for work, trials, or whatever. I’m going to the DRI Conference in Saint Louis next month. It is going to be great. Here’s the thing, if you’re not doing that and you’re on your own, the only way you’re going to become known is the old advertisement. The Navy used to have an advertisement where a young man said, “How can I get a job if I don’t have experience?” The Navy’s response was, “We don’t ask for experience. We give it.” That’s the catch-22 of this work. If you aren’t established, you’re not going to get established just by throwing your sign on the wall and getting some business cards. The way to get established leads to the amount of marketing and advertising you would need. For instance, if you’re a safety guy at a big company, whether it’s OSHA, trucking, or whatever and you ask your corporate counsel if you could be their internal expert witness on cases involving your company, that’s a perfect way to start. Be the expert, and you are in your management career field. Go to your corporate counsel and become the internal expert. Save your company money on experts first. Do that level of work, get established, and there’s a good chance you’ll never have to advertise. I haven’t ever paid a dime for advertising. I don’t have a Facebook page for it. I don’t have a website. Nothing. I just don’t need to.

Noah Bolmer: On the topic of changing work among expert witnesses, have you noticed that more cases are going to settle instead of going to trial?

James Lewis: Sure, but that’s OK with me. I like to travel, but once I get there, I’m like, “Man, I want to go home.” However, your attorney’s goal is to resolve the case, and it’s much easier for them to settle it than to take it to trial.

Noah Bolmer: Sure. Does your work fundamentally change when a case settles, or do you always prepare as though your case will probably go to trial?

James Lewis: My reports are not written for an attorney. Since the first time, every report I write is for the purpose of describing what I would do if I were on the jury, we listened to all this stuff and then we went back into the room. Give me something to read that makes sense so I can help the jury. I write these reports for the jury foreman. If I’m the jury foreman and you’re on the jury with me, I’m like “Look, this guy said this, this, and this. This makes sense. I think he’s wrong here, but the rest of this is okay. I disagree with something.” Whatever, it doesn’t matter. My point is that I write my reports for the jury because I expect every case to go to trial when only two to three percent go. In my world anyway.

Noah Bolmer: Has that increased throughout your career?

James Lewis: Yes, but I think it’s because of the nature of the cases I’m dealing with. I’m dealing with multibillion-dollar personal injury cases involving trucking companies, but they settle. They do. When I started, I was dealing with lemon law cases, and Pennsylvania has a unique court system in its Court of Common Pleas. They have a fast track for cases under $100,000. At least back in the day, it was $100,000. They probably raised that. If you have a car that has problems, and you call the firm within 30 days, all the discoveries are made, complaints are filed, and discoveries are done within 60 days. Depositions are taken, and in 90 days, you’re sitting in arbitration downtown. They had their own little court system where all the attorneys had to serve on these arbitration boards. I’ve been involved in as many as six in one day and there are many trials. You have three attorneys sitting on the panel. You got the plaintiffs, and you did the defense. They put it on him just like a regular judge and jury. But there’s no judge or jury. There are three experienced attorneys, and they present their case. The attorneys make their decision. There has to be two out of three to make a proper decision and it’s done. Then your attorneys wait until the end of the day. They got the little card filed to figure out who won or lost, and how much. That was unique. All those cases went to arbitration because it costs $219 to file it and go to arbitration. With that cost, why in the world would you settle it when you have a better chance of winning an arbitration? The next step is you’ll have a trial within 60 days. If it fails at arbitration, you can’t, oops, but when you’re dealing with a three-quarter-ton truck and a Cadillac, you have a $2,000,000 insurance policy and I guarantee they’re well over one-hundred grand, expert fees, witnesses, and depositions going into the trial.

Noah Bolmer: Let’s shift to the future. How do you see the job of the expert witness evolving in the courtroom? How are the expectations changing? How are logistics changing? What do you see as the future of expert witnessing?

James Lewis: Well, one area that has changed, monumentally and is going to change even more is accident reconstruction. I went to two different accident reconstruction schools when I was in the Air Force as a cop. The Department of Defense puts on these accident reconstruction goals. I love math and physics and they give you examples and formulas to figure out how deep the skid marks are, how much rubber got transposed to the road, how long they are, and based on that, you can determine the vehicle speed and velocity. Nobody does that anymore. They use a drone, and they use these high mounted cameras. A guy sits in his pickup truck with drone controls, and he maps out the whole scene, and then he goes back to his office, and he does the calculations, and that’s it. That field has changed drastically with technology, but you still need basic education certifications to do that job. Technology has changed a lot for a lot of people. It hasn’t changed much on the transportation side, except now we have things like electronic logs.

Noah Bolmer: Mm-hmm.

James Lewis: That can be falsified or not falsified, added or not added. You can do a download on a vehicle that you could not do on any vehicle 1996 and below or any truck 1999 and below. Now you can’t, “I hit my brakes.” “No, you didn’t.” “I was only going 42 miles an hour.” “No, you were going 58 miles per hour. We got a ride here in 1806.22 seconds. You were going 58 miles an hour. Social media people were running her phone as a dash cam, in a personal car, and you witnessed a crash. That crash is now on TikTok or you two. Attorneys and experts have to be aware of that. You got some guy out there with some Tick Tock handle that is saying, “Hey man, you can’t believe this truck wreck I saw.” He might hurt or help your case you know.

Noah Bolmer: Do you have any cases that stand out, influencing your approach to expert witnessing or informing your job?

James Lewis: One thing that has helped me as an expert but helped me more as a DOT compliance guy and a training guy and putting people’s feet to the fire on documenting training. A 74-year-old gentleman and I will preface this with this old guy, had 144 acres in Mississippi outside Jackson. He had two homes on the property, a couple of pickups, and a car. He had a home for his daughter and her husband, a tractor, and other cool stuff. He had paid everything off. He worked for a tow company, and he was driving the same Dodge W400 medium-duty tow truck that he did back in 1974 when he bought it new. It didn’t have a straight body panel on it. All the glass was broken and there were holes in the floor. The thing had undergone maintenance in 20 years. It had a single line. Have you seen the sling-tight tow trucks? This was not a dual line. It was a single-line tow truck with a hook. His job was hauling wrecked cars to the scrap yard.  One weekend he was covering their medium and heavy guys. He normally was not on-call, but for whatever reason, the two guys who normally ran their medium and heavy units had to be out of the county, so he got a call to tow a loaded Mom’s Attic, 26-foot U-Haul truck that had broken down.  U-Haul prohibits sling towing because it involves the front bumper. Sling towing is outdated and doesn’t exist anymore.

Noah Bolmer: Sure.

James Lewis: He went out and slung his truck. He was going down the road and hit a bump in the road. One of the little bridge seams on I-20. His cable snapped and the entire sling came off the truck. The U-Haul went one way, and the tow truck went the other way. The sling ended up lying in the middle of the road at 11:00 at night. Nobody could see this big metal monstrosity sitting in the middle of the road. A lady in an Oldsmobile Aurora hit it, rolled her car seven times, and was almost killed. When it all came down to it. The towing company was saved in this litigation because twice a year, they had you clean up your truck and show your truck to the other 10 or 12 people working for the company and say, If you ever have to use my truck, here’s where this lever is and where the broom is. They showed them how it worked, and the company’s owner documented that training. He was smart at doing cross-training.

Noah Bolmer: Sure.

James Lewis: The light-duty guy if he had to jump in a medium-duty truck and take it out for somebody else, could do it right. Nobody wanted to drive old John’s truck because it stunk, was nasty, and beat up. Because John took that training, he had the choice of taking a medium-duty International or the heavy-duty Kenworth out on that U-Haul tow. He refused, and because of that, he was hung as the sole civil litigant in the trial and $1.2 million later, he lost his entire farm. You have to understand the training documentation is there for a reason. Take care of your business and make it easy for the experts and attorneys to help you understand it. As an employee of a company, you’ve got no protection. The boss does. He’s got an LLC or an incorporation. If the building catches fire and he loses his business or all the trucks inside, he still keeps his house and his boat, but if you, as an individual employee, make a mistake, you don’t have that protection. I’ve written about 15 different articles about how to protect yourself. That really changed the way I look at these cases too, because I got emotionally involved in that. I sat in on the guy’s deposition as this old guy cried. You can’t help but be touched by some of these cases, but on the other hand, you can’t let it change your outcome. No matter how bad you feel for old John. You can’t let that sway what you write and what you do, because what you write and what you do is going to stick with you for the next 30 years.

Noah Bolmer: Let’s talk about your relationship with other expert witnesses. Have you worked in teams or on actions where the attorney employs multiple experts in different areas? For example, you might have a technical expert and a damages expert. Have you worked on teams like that?

James Lewis: Absolutely.  I’ve only been doing that for about the past 15 years and for the past seven or eight years, right alongside a human factors expert, and accident recon[struction] person. I don’t have a drone. I’m not an accident recon guy anymore. I don’t have a drone or a cool camera. I’m not going to spend the money. It’s common to have an expert team together and we talk. In fact, I just did an inspection before Christmas in Las Vegas on a defense case involving a trucking company. I went out with the human factors person, a young lady, and the accident recon guy. We did an inspection of the truck that had been involved in the crash. It wasn’t badly damaged. A lady on a scooter ran into the side of the truck as he was making the right turn, but I wanted to prove from a transportation perspective that all five of the turn signals on this side of the truck were visible. I took videos and pictures saying you can’t miss this. It’s a blue and white truck with red stuff on it and all these signals. The accident recon guy had to do his measurements based on that. I was helping the human factors lady because I pushed the scooter alongside as she was sitting in the truck, looking in the mirrors to visually understand how far back this driver might have seen the scooter operator. Things like that were cool to work with. I’ll preface this with there’s a lot of work you do adverse to other experts and some experts aren’t ready for that. They’re going to come out guns blazing, and they’re going to say, “I disagree. This guy’s an idiot”. I’ve been called a casual observer. I’ve been called uninformed. I’ve been called a hired gun. That’s why I do 50% plaintiff and 50% defense. That is important to me, and I’ll tell any expert to go that route, if possible.

Noah Bolmer: Let’s sidebar that. I want to hear about it. What is the difference between working on the plaintiff’s and the defendant’s side?

James Lewis: There are not that many differences except that you’re looking at the evidence presented by your attorney that favors the plaintiff’s or the defense’s case. For instance, I can look at the same case and work on both sides of it. The truck driver was correcting his logs. He had slept, his truck was clean, and it passed inspection. He didn’t do anything wrong. He was in his lane and whatever, but the downside is in his driver qualification file, they didn’t document a road test and training, so in theory, he’s not qualified to drive. He did everything else right, but he shouldn’t have been there. On the plaintiff’s side, I’m going to go, “Wait a minute. Yeah. He was in his lane and his things were good, but he shouldn’t have been there because he wasn’t qualified to drive.” That’s a big deal there where I was going to begin with, the “hired gun” thing. You never want to be called a “hired gun” and that’s the layperson’s understanding of what an expert does: You say whatever the person who pays you wants you to say. You’re not going to last very long if you do that.

Noah Bolmer: Your duty is to the truth, right? Not to the client. It’s the truth of the matter.

James Lewis: Right, exactly. Even if it hurts your client or the attorney, tell them the truth. You have to say, “I found these problems.” In fact, my guy in Vegas, with whom I’ve done a bunch of cases, always starts off the call after a week or two of me reviewing, saying, “Alright, give me the bad news” and I’ll give him a checklist. [I’ll say], “Here’s what I found. Bang, bang, bang.” Then he says, “Okay, well, thanks.” He will call a week later and say, “We settled the case. Thank you.” I gave him the bad news he needed. If you only do plaintiffs cases or if you only do defense work that can be a problem. I just told folks to get started. working inside your company. If you’re a safety manager, work inside your company with your corporate counsel. The problem is if you’re only going to do defense cases, you’re not going to do any plaintiffs cases for your corporate counsel. It’s not going to happen. Branch out a little, get a referral from your corporate counsel to work for an attorney who might be a plaintiff’s attorney, and work that side of it with the knowledge you gained on your job.

Noah Bolmer: Do you think it’s important to remain engaged in your profession while doing expert work?

James Lewis: Absolutely. That’s a whole different subject in the set. I got two guys disqualified recently because of that. I made the point to the attorney. She was a young lady who was brand new and was thrown into this case. Sometimes you must give them a crutch to help them along and say, “Okay, in the deposition, ask me this because I need to talk about this. This is important.” At the same time, she said, “What do you think about this expert who’s a guy in Texas?” I pointed out to her that in his CV he was an expert in transportation hit and run, an accident recon guy. He knew how to study skid marks, but he had no accident recon training. He never went to a truck driving school, which is neither here nor there, but he hadn’t operated a truck for pay since 1986. That’s monumental in the transportation industry because the FCSA didn’t exist in 1986. DOT did not exist in 1986. How are you an expert on current transportation issues when you’ve never worked under this 30-year-old system? She said, “Wow.” I said, “Look at this. The Interstate Commerce Commission (ICC) and the FMCSA were done away with in 1995. The Department of Transportation (DOT), as it exists today, did not exist until January 1st, 2000. If you have an expert who is a transportation guy and he hasn’t operated a truck or trained anyone who has since 1986, how are you going to be qualified to give opinions on things happening today on electronic logs he’s never used?” They didn’t have electronic logs back in the day. In fact, the FMCSA hours of service rules have changed 100% since 1990-2000. The current system didn’t come about until 2005, so if you haven’t operated since 2005, you haven’t operated under the system. If you haven’t operated since 2013, you haven’t used the electronic logs unless you work for Warner. It’s a different story. They had electronic logs. I wrote an article on this, “Do Expert Witnesses Have a Shelf Life?” Absolutely. That’s why I maintain my current CDL medical card and drive for my neighbor who has a long truck once a month. I engage in Interstate commerce, moving logs from North Texas over the state line into Oklahoma.

Noah Bolmer: Is it simply to maintain your certifications or are you constantly learning? Are you improving? What does it mean to be an expert in your field? Are you constantly absorbing new stuff? Are you getting the new laws? Tell me about it.

James Lewis: You must, and I don’t drive this truck once a month to talk to the guys at the log place when we drop them off. No offense to them. They’re nice people, but I do it to stay current, and when I’m questioned, “When was the last time you drove a truck?” I say, “Two weeks ago.” You can’t argue with that, but more importantly, operating under these systems and being inspected by state troopers both in Oklahoma and Texas, I’m subjected to the current rules and regulations. I must know them. and if you don’t know them like the back of your hand you shouldn’t be playing this game.

Noah Bolmer: Let’s back up to where we were talking about working on teams of different types of experts. What is the coordination like? Do they simply exist side by side or are you working with different experts to come together with a plan or come together with an expert report for the attorney? What’s that collaboration like?

James Lewis: I have found that is up to the attorney. I’ve done it both ways. I’ve done a lot of work for this one guy in Denver that I’ve done six or seven cases for, and he paid that accident recon guy. Tom. “Yeah, he just did his report. I want you guys to talk before you do yours.” OK, cool. That makes sense. I’m going to talk to Tom directly because he was out there doing his drone thing, and then I’m going to get all this information and see how that compares with the report that I’ve made on the information that I have. He always shows me something. Then, I show him something he didn’t think about and that works perfectly. We work well together. Same with human factors. Same concept. There are attorneys that don’t care if you do that. They don’t want you to do that necessarily, but what they will do two weeks before your deposition, trial, or whatever they’ll say. “I’ve got an accident recon report. I got this guy involved, and I want you to check his report and see if you need to rebut or support anything on it.” His report usually supports mine, and we haven’t even talked, but based on Mr. Smith’s findings I agree with him, and that supports my position on this. The driver was in violation of whatever. There you go. That’s how we should work together.

There’s an adversarial feeling in the industry and there are a handful of people that I can name. Of course, I won’t. A handful of people that I’ve worked with and worked against are in it for the money. They don’t have recent qualifications, and they write these 40-page reports where 39 1/2 pages are below the action of spouting off regulations and stuff that doesn’t matter. They give three sentences worth of opinions, and that’s their report. I guess they are paid by the word. Be brief and concise. There’s a lot of stuff in this industry, so when you write you have to be technical. You must explain your theory. Some work doesn’t have theories involved, like digital forensics got a world of respect for the digital folks. It’s cut and dry, and the phone was activated this time. The call lasted for 11 minutes. There’s no theory involved in it. That’s just a fact. In our world, there’s an industry standard: when somebody’s pulled up on the side of the road, most truckers will put on their signal, and if there’s room, they’ll get over and give you a lane. That was long before this slow-down, move-over rule that’s been going on for 100 years. That’s an industry standard so when the other side wants to argue about how strong it is. It’s just an industry standard. It’s not a law. Come on, I hear that. Anyway, I digress on that, but working with the other experts is what ties that stuff together because I’ve taken human factors and accident recon experts and said, “We have an industry standard, here’s what we do not in the regulations anywhere. It’s an unwritten standard, but this is how we do it. Take that into consideration when you start writing” and they do.

Noah Bolmer: Have you worked in different venues such as state, federal, regulatory, international, etc.? If so, are there differences in that sort of work or do you approach it largely in the same manner?

James Lewis: I approach it the same, but I’ve testified in federal, state, and county courts. I haven’t done any regulatory work directly. I’ve got a weird case going on in Michigan that involves chemicals where that part of the case is resolved. Now, there’s a secondary part, the contracts issue, but the guy dealt in distilled alcohol and sold it to people to make liquor. That was his gig and he made good money doing it in large volume. Well, he got one shipment that was alcohol used to clean out the bays of barges. As disgusting as that sounds, what they use to clean out the barges is methanol, which is fatal to people. He ended up with a shipment of 40% methanol and because of that, seven people died. They brought me in as a trucking expert, and I wondered what I was doing here. “Well, you got a HAZMAT license. Right?” “Yeah.” “Okay, how should this load?” The trucking company placarded the load. They transported it from point A to point B. I realized that was how I was involved. I looked at it because when you transport chemicals as a driver, you get a breakdown of what you have. It’s usually only one type of chemical, whether it’s gasoline, diesel, sulfuric acid, or whatever it is. You get a report, a lab report saying this is 98% sulfuric acid or whatever it is. Because of that, you look in your book, and it’s up to the shipper to give you the placards for your truck. You, as the driver, make sure it’s placarded correctly. You have the bills of loading in case anything happens, the police can get right to the bills. You have your little Hazmat book open to the page where that placard belongs. There are rules for that. Well, the shipping company falsified the documents as to what it was because they knew it was garbage and it was mostly methanol. They sold it to this guy anyway. It was transported incorrectly so that tied in the trucking company and the driver, and it turned into a mess.

Noah Bolmer: Wow, you alluded to this a little bit earlier, but in your opinion, what factors make for a positive attorney-expert relationship? What are the things that you’re looking for, and what are the things that they’re looking for that help you guys click and work together well?

James Lewis: Don’t be vague. I know that sounds silly, but don’t be vague. If you cannot be 100% positive, don’t write it or talk to them about it. “Hey, here’s what I got. Here’s what I want to say, and I don’t want to be weak.” Your attorney needs several things from you. They need you to be as concise and correct as possible because they don’t want anything blowing up in their face. What I mean by that is, if you spell yeah, don’t do the expert creep thing. Stick to your area and don’t creep out of it and say, “I know about meteorology too.” Oh, yeah? Well, you’ve watched the weather forecast so I guess that makes us all meteorologists. Don’t pretend to be something you’re not. Because if you do your attorney may not know whether you have those qualifications or not. Maybe you did go to college to be a meteorologist. The point is when you get in a deposition or a trial and start getting cross-examined, you’re going to get messed up, and your attorney’s going to be left holding the bag, and he’ll never use you again. You don’t put an attorney in that position. Be straight, be solid, and be strong. If you can’t be strong, don’t take the case.

Noah Bolmer: What should the attorneys on their side be doing?

James Lewis: They should check you out. Word of mouth is the best advertising, and I’ve got a firm here in Texas that I started with this one young lady. She’s sharp as a tack. In fact, that’s who we worked with on the trial in Antonio. She has referred me to twenty-two of her coworkers. They have a lot of attorneys and it’s, “Yeah. I hear you’re the guy. Here’s what I got. What do you think?” That one that passed me. “That sounds right.” “All right. We’re going to use you.” “Good, We’re on.” My Administrative Assistant out in California is like, “Another one? Right on.” It works out.

Noah Bolmer: Have you had any bad or negative experiences that have formed the way that you work as an expert witness, and would be helpful as a lesson for newer expert witnesses?

James Lewis: As an expert, you are not a bill collector. Don’t try to be a bill collector. Make the retainer work. Don’t do any work until you have the retainer. Now, for people that I’ve done multiple cases with that’s a different story. I’m not saying you cannot trust a new person. It’s not a matter of that. This is your money, though. You’re going to go do a bunch of work and you might not get paid for it. Don’t take that chance. Do what you have to do. No offense. That attorney when they signed a retainer agreement with their client, they’re either doing it on contingency, or they took the retainer. One or the other. They’re not working for free unless it’s pro bono or some public case. I know people do that, but my point is being they’re not working for free. They don’t expect you to work for free. The bad experiences that I’ve had are twofold. One was a firm in Florida that wanted me to go directly to people who had wrecks in their trucks, and their trucks were down. They want me to collect a retainer and or initial fee from their client. I did it a couple of times.

The other side is when you get too good of a relationship with an attorney like the one, I have. After the second case, he started calling me at 9:30 on a Sunday night saying, “Hey, man, I got a new case to run past you.” You’ve got to be careful about the limitations. I’m not saying to be a jerk. “Don’t you dare call me but nine to five!” I’ve never had to lay that rule out. In the first case, I got a retainer, and with the second one, he goes. “Hey, I got another case for you. In fact, you got 2 more.” And he gave me 3 cases. I didn’t make a retainer agreement with him. I didn’t think about it. It wasn’t that big a deal. I did the work and I sent him my invoice. 30 days passed and then 60 days passed. I’m sending him monthly reminders, and that went on for 120 days. I said, “You got to treat me right. You have to catch up on all these invoices or lose my number to a new expert.” Don’t put yourself in that position. Set yourself up to be successful.

Noah Bolmer: Before we wrap up, do you have any other advice for a newer expert?

James Lewis: Again, watch what you do on social media. I don’t care how active you are in politics, activism, culture, sexuality, or any of the hot-button topics in our country today. Keep them off your social media. Participate in your parade, be an activist, or whatever you are doing. Just don’t let it end up on social media. I use LinkedIn, but I do nothing on LinkedIn that’s remotely controversial. When defense counsel brings that up in front of the jury and goes, “This is the guy you’re dealing with right here. Is this the kind of guy that has a rational judgment to look at something with balance and non bias, and help us make a decision in this case? I don’t think so.” That’s what it boils down to, right? Keep yourself credible.

Noah Bolmer: Sage advice, Mr. Lewis. Thank you for joining me here today at the Round Table.

James Lewis: I had a good time.

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

James E. Lewis, M.Ed., CDS, Owner Total Transportation Training, LLC and Valley Automotive Consulting

James Lewis, owner of Total Transportation Training, LLC and Valley Automotive Consulting, is a published author, public speaker, and expert witness with over 12,000 written opinions in 800 trials. Mr. Lewis holds a master’s in education from the University of Maryland.