In this episode… 

Between trials and depositions, the latter can be a lot tougher, according to Mr. Smith. With no judge present to mediate, moments can become heated with table-slamming, interruptions, and off-hand comments. While not all depositions are hostile, Mr. Smith recommends knowing the case, being confident in your expertise, and relying on empirical data to prepare. 

Check out the full episode for our discussion on using visual aids, the importance of credibility, and building relationships. 

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome David Smith to the show. Mr. Smith is the President of Alpine Engineering and Design Inc, a mechanical engineering firm specializing in product design and development. He’s a licensed safety professional, a professional engineer, and holds multiple patents. Additionally, Mr. Smith is an experienced product liability and patent expert witness and holds both an MBA and MS. in mechanical engineering from BYU. Mr. Smith, thank you for joining me today at the Round Table.

David Smith: Thanks, Noah. It’s a pleasure to be here.

Noah Bolmer: Absolutely. Let’s jump into it. With two decades of experience in mechanical engineering, how did you first become involved in expert witnessing?

David Smith: That’s a great question. For me, it came naturally with the job that I was in. I’m a third-generation engineer. My grandpa started a consulting company back in the late 80s, late 70s sorry, before I was born. My dad worked with [my grandpa] up until he retired in 2000. Then my dad started Alpine Engineering and Design and I’ve been working with him since about 2006. As part of that, we started out only doing design work in heavy equipment, garbage trucks, area lifts, dump trucks, trailers, scissor lifts, and because we had developed such an expertise in those areas, attorneys started to come. First, they asked my grandpa if he would be an expert witness, and he did it once and said, “This is not for me. I do not like this type of work.” He was done and out, but my dad watched that, and he started to pursue that because he liked that type of work. He started doing more of that and as I came on, I got to work with him in an associate type of role. I would do research for him. I would do testing for him. I would help draft his reports and eventually it got to the point where I was doing my own cases.

Noah Bolmer: He was able to show you the ropes. Did you feel well prepared when you first got started?

David Smith: Yes, and no.

Noah Bolmer: Tell me some of those caveats. That’s what our newer expert witnesses want to hear about. What were some of the troubles and difficulties?

David Smith: I felt good about being able to do the background work. My first deposition was an experience because not only was it my first deposition, but it was also the opposing counsel’s first deposition.

Noah Bolmer: Oh boy.

David Smith: She was gung-ho and to top it off, they didn’t have good arguments on their side. Their main strategy was to disqualify their expert. To say, “the deposition was hostile” is an understatement. The attorney that I was working with said, “The good news is it’s only going to go up from here because that’s the most hostile deposition I’ve ever been a part of.” I don’t think I was prepared for that, but his advice has been true. It’s been much better since then.

Noah Bolmer: Let’s talk about that. How do you prepare, or can you prepare for that sort of a hostile deposition where somebody’s trying to tear you apart in terms of your credibility as an expert witness? How do you get yourself ready for something like that?

David Smith: That’s a good question. Part of it is knowing your expertise and knowing the case, and on top of that is having information to rely on because that’s the way it is. Sometimes experts say that and maybe they can get away with it or maybe they can’t. If you have a textbook that you’re relying on, or if you have testing that you did and you say, “I did this testing, and this is what the results were.” Then it doesn’t matter who you are as an expert. You’re relying on this empirical data that you’ve collected or that you’ve generated to support your opinions rather than, “You should trust me because I have a degree or because I have experience.”

Noah Bolmer: How do you deal with the mental stress of somebody attacking you? Do you become more Zen as you do it more often or are there techniques that experts can use to be ready for it and not take everything so personally?

David Smith: I’ll be honest with you; I almost took my grandpa’s course and said, “I’m never doing this again” and walked out. I have to find a new job. I almost took that course and I’m-

Noah Bolmer: Was that the part he didn’t like, that led him to leave?

David Smith: I’m not exactly sure. He was super creative with over 120 patents. He loved being the guy in the dirt making the things. He didn’t like sitting at a desk writing reports and that sort of thing. But back to the question, one thing that’s been helpful for me to understand is that the attorneys are people trying to do their job the best they can. Many times, the things they say are just an act they’re putting on to intimidate you or maybe to scare you. To get you to say things that you otherwise wouldn’t. This became apparent to me in my second or third deposition and I was baffled when this happened because during the deposition, the attorneys were going back and forth. “Objection.” “Form.” “Objection. You can’t say that.” They’d argue back and forth for five or 10 minutes. The deposition was 6 hours long, and I was on for an hour out of it. The rest was just the attorneys arguing back and forth.

Noah Bolmer: Wow.

David Smith: But then at the end, after the deposition concluded and we’re off the record, they were like, “We’re still golfing on Saturday?” The whole tone and mood changed, and I was like, “What on Earth just happened?” That’s when I realized, it is just an act, a lot of times. They’re people, trying to do their job and if they can act in a certain way and get you to react, they’re going to try and do that. The best thing you can do is to not take it personally. Don’t get riled up, and just be yourself. Explain your opinions and move on.

Noah Bolmer: Beyond attorneys, expert witnesses often have a counterpart on the other side, the opposing expert witness. Do you find that it’s similar?

David Smith: When experts attack other experts, it’s usually in the form of a report. Reading those can get your blood boiling sometimes. Because maybe they’re just wrong, maybe they’re interpreting it differently. It’s easier because you have time. You usually do that in a room by yourself. There are no other people watching. There’s no video camera on you. Even if you do get frustrated, angry, or upset you can stand up, walk around, take some deep breaths, and then evaluate whether there’s any credibility to what they’re saying or whether they’re off base.

Noah Bolmer: What about the flip side of that? When you write or have you written rebuttal reports as well?

David Smith: Oh, certainly, that happens all the time.

Noah Bolmer: How do you approach writing a rebuttal report?

David Smith: From my perspective, it’s not my job to attack their credibility. I will do my best to give the attorneys whatever information they need. They certainly need to know if the other expert has said something incorrect or not technically accurate, or if there are arguments on both sides of a technical argument they need to know those, and I’m happy to point those out.

Noah Bolmer: From an expert witness perspective, how is being in the deposition different from being on the stand during, say, cross-examination?

David Smith: In my experience, attorneys are much nicer during trials because the judge is there watching and listening. In depositions, I feel like they think they can get away with a lot more and so you’ll usually get tougher questions. You’ll get more banging on the table, interruptions, or off-handed comments than you would in a trial. But, generally speaking, attorneys are cordial during depositions. If they’re going to be obnoxious, it’s probably going to be during a deposition, but generally, they’re cordial.

Noah Bolmer: How do you connect with the jury at a trial? Do you use visual aids, for instance?

David Smith: Absolutely. Visual aids, demonstratives, models, anything to grab their attention and help them understand what happened. That’s the question I’m usually addressing. Sometimes, there are safety issues in technical arguments, but usually, what the jury wants to know from the engineering expert is what happened. How did they get hurt? What went so wrong that this person lost their arm or got crushed or whatever happened? Being able to explain that or show that with a video or in-person test l have found to be very effective ways of doing that.

Noah Bolmer: Does the attorney typically provide you with visual aids or are those things you procure on your own?

David Smith: We produce those. Much of it comes from the testing we do when we generate our reports and opinions. For example, we did a case ages ago where a refuse worker was emptying a container in a rear-loading truck. He was standing on the side of the truck and the container somehow swung around and pinned him, crushing him against the side of the truck. [Looking] at the pictures from the accident scene and wonder how on Earth did this happen? How did that container get to that position?

Noah Bolmer: Sure.

David Smith: We got a container and built a test fixture the same size and shape as the back of a truck. Then, we used some long hydraulic hoses to move the controls to a safe location. We went through the same process, pushed the container out like they said it happened, and saw it drop down, pivot, swing around, and slam into the side of the container. You had a metal container slamming into a big metal test fixture, it was loud, and it was scary. I’m sitting on the other side of the parking lot, 30 to 40 yards away and my hands are shaking. When you show that to someone in a deposition or at trial, they get it. It’s like all of a sudden, “Okay, we know what happened and we know that this guy didn’t do anything wrong. He was standing at the controls and something happened with the way the equipment was functioning.”

Noah Bolmer: When you’re showing something or explaining something to a group of laypersons like a jury or the judge might also be a layperson, do you find that these exhibits are particularly useful?

David Smith: Absolutely. My dad would tell several stories to this effect, but he had one where he had a model and had shown how an accident happened. They were taking a break and the judged asked, “Do you mind if I take that to my quarters with me?” [My dad said,] “Yes. Whatever you want to do, your honor, please, by all means, take it.” When the judge is playing with it and figuring out, “Wow, this is what happened.” That’s when you win.

Noah Bolmer: Wow. Let’s compare when you first became an expert to now. What are some of the things that you’ve learned in your time as an expert witness that you wish you knew when you first started?

David Smith: The first thing is that your credibility is your most important asset. It’s good to have an education, training, and degrees, but the most important thing is your credibility—the things that you say, write, do, and present yourself in general. Always protect that. It’s not the expert’s job to win the case. The expert’s job is to present the technical information, whatever it may be. I think a lot of experts, and I’ve seen this happen a lot when they stretch facts or present things that aren’t realistic. When that happens, it’s easy to destroy their credibility. In one trial that I was in, it was a bench trial, so there wasn’t a jury, but the judge was there and he was making the decision. The other expert had done a little demonstration, and the judge asked him, “So you’re saying that this demonstrates XY and Z?” The expert said, “Yes, Your Honor.” Then, the judge looked at him and said, “Uh-huh.” It was like he was [thinking], “Alright, well, I really don’t believe that’s the case.” When this decision came out, it said, “We find such and such and experts not only unreliable but [not] credible.”

Noah Bolmer: Wow.

David Smith: That case turned out well for us but that’s the sort of thing you don’t want judges saying about you.

Noah Bolmer: What are the things that you can do to both establish and maintain that credibility?

David Smith: That’s a good question. It comes back to staying in your lane. You don’t want to talk about things that you don’t know about. You’re not trying to win the case. If there are facts that aren’t favorable to your side’s position, you don’t have to say, “That didn’t happen.” You say, “That’s what happened to her. Yes, that’s true.” [An] attorney explained to me that if a lawsuit was completely one-sided it would settle. There are going to be two sides to every coin and during a trial, each side is going to score some points. There are certain points that you’re going to have to acquiesce or agree with. Doing that instead of trying to beat around the bush [will] build and establish your credibility.

Noah Bolmer: When you’re on the initial phone call with the engaging attorney. I imagine that is part of that vetting process. They’ll ask you those questions to get your opinion before hiring you. Is that the case?

David Smith: Sometimes, and many times, when attorneys bring on an expert witness, they don’t know how the case is going to turn out. They don’t have all the facts and haven’t done the inspection yet. Usually, when they present it to an expert at the beginning, they get the story from their client so it sounds one-sided. Sometimes, having familiarity with the type of equipment, you can say, “This doesn’t add up, and here’s why.” Then you can lay that out and say, “We can do testing and determine if it was XY and Z or are there any pictures that show that there’s hydraulic fluid all over the site because the cylinder burst?” You can ask those questions, and in my experience, asking those questions, and looking a little bit deeper shows the attorney that a) you know a little bit about this type of accident and this type of equipment, and b) that you know what to look for to determine whether or not the case should move forward.

Noah Bolmer: Beyond that, what are the things that make for a positive attorney-expert relationship? What are the things that experts, and frankly lawyers, can do as well to foster a productive engagement?

David Smith: That’s a great question because some attorneys and experts are good at building relationships, and some attorneys, and some aren’t. Try as you might, there are probably going to be some attorneys who view an expert as a tool in their belt. “I’ll call you when I need a piece of information. Otherwise, I don’t have time to talk to you.” If that’s the way they want to do it, that’s fine. And this goes back to what we talked about earlier, that attorneys are just people doing a job. It’s okay to take a couple of minutes and talk about something outside of the immediate case. I had one experience working with an attorney, we were on a lunch break during a deposition, and she had just gotten a new lab puppy and was excited about it. She was missing her dog and we talked for 45 minutes about our dogs. We had a great time. It took our mind off the deposition and got to back in focused. As we were walking back, she said, “Sometimes, I dread these lunches when we’re doing expert depositions because they’re so awkward, and it’s hard to maintain a conversation. But this, I really enjoyed. I’ve probably done six or seven cases with her firm since that time, partly because of that, and partly because the case turned out well. Treating them as people having personalities and taking time to talk about things other than the case, are all things that can help build those relationships.

Noah Bolmer: All things being equal, do you prefer to work with a more engaged attorney? Do you find that aids in the probability of getting a positive verdict for the end client?

David Smith: I definitely prefer to be part of the team, or at least viewed in that way. Not just saying, “We need this opinion from this expert. Call them up and have them sign this declaration that we wrote.” It’s like, oh, that’s not how I work. I like to be part of the team. I like to know what’s going on. I like to have input into the case, and sometimes the input is “You need to settle this case” or “You need to drop this case because you’re going to lose.” The facts are on your side. I did one case like that where there was a trailer and it had a Gross Vehicle Weight Rating, which is what trailers are supposed to weigh, completely loaded. It was a horse trailer that was supposed to hold four horses, and they had problem after problem after problem with this trailer. We went and we weighed the trailer dry. No horses, no gear, and the dry weight of the trailer was three hundred pounds less than the GVWR, and so he-

Noah Bolmer: There are not a lot of three-hundred-pound horses.

David Smith: Not a lot. You can’t put four horses and have all four horses and all their gear weigh less than three hundred pounds. It just doesn’t work. I told the attorney, “I don’t know what you want me to say here.”  I laid it out for him and he said, “I get it. We’re going to go settle this.” Sometimes the best advice an attorney or an expert can give is you don’t have any good arguments here. You probably ought to go settle.

Noah Bolmer: Do you feel like you’re typically brought in early enough in the process to process all of the information that the attorney gives you, do any outside research that you need to do, and form an opinion or do you sometimes feel rushed?

David Smith: We have experienced both of those situations. I always like it when we’re brought in early. I had one case where we were brought in very early. When they were starting to take depositions and starting to do the discovery. They said, “We’re deposing all the engineers that were involved in the development of this product” and said, “What questions do you think we ought to ask them?” This was a personal injury case where someone was severely injured, and so I went through my outline for risk assessment and I had them ask questions about every item that I would put into my report. Bless this engineer’s heart, he answered all the questions honestly and it made my report so good. When it was time for the deposition, they asked me, “How do you know this?” I said, “You’re engineer said so in his deposition.”  “Well, how do you know this?” “Your engineer said so in his deposition.” The attorneys did a great job. They asked all the questions that I suggested they ask, and it turned out as good as you could have hoped.

Noah Bolmer: Nice. Do you find you are frequently recommending questions to attorneys?

David Smith: It happens often when it comes to heavy equipment. They don’t know enough about it to get the right information. As the expert you can suggest the right questions to get the information that you and the attorneys need. That’s very helpful.

Noah Bolmer: Sure. Let’s talk about billing for a minute. Are there any specific terms that you like to have in your contracts? For instance, do you take a retainer? Do you do project rates hourly? How do you structure your billing?

David Smith: We require a retainer, and ours is non-refundable for a couple of reasons. One is that sometimes attorneys will call you, retain you, and then tell the other side they retained you. Then the case settles and you don’t get to do any work. The case was settled because of your name and reputation.

Noah Bolmer: Sure.

David Smith: That is worth something. The other thing we’ve seen happen, and it doesn’t happen very often, but we have seen it happen is that when there’s a big lawsuit, one side often will go and retain all of the experts in that field so that the other side doesn’t have anybody to testify for them. That’s fine, but they retain twenty experts and have the intention of having one of them do any work. I don’t care if I’m expert number six, if I got my retainer, that’s fine. If I don’t get a retainer and I’m retained by one side, then I can’t do work for the other side so I’d be conflicted out

Noah Bolmer: Does an expert know if they’re being held in that fashion? If so, is it ethical to take an engagement when you’re just being held?

David Smith: I’m only aware of one time that has happened to me and it was probably somewhat accidental that I found that out. There are a lot of cases where you get retained and then nothing ever happens. So, we do have a retainer, we do bill hourly. We do have lines in our contract that say, “If we’re going to release a report, going to be deposed, or going to testify in trial, we can’t have any overdue invoices. You need to be paid whatever’s due before we do any of those things.” The other one that’s kind of interesting is what we internally call the “Join the Circus Clause”. This comes back to those other cases where we get a call and it’s like, “I need a report in a week. I messed up and thought this was going to settle. It didn’t and now I’m in a crunch. Can you help us?” Normally, we like to say yes to helping attorneys, we like doing this sort of work. But when we get projects on such short deadlines and we already have work planned out for that week, if we’re going to help, it’s going to require a significant amount of overtime.

Noah Bolmer: Sure.

David Smith: There’s a phrase that says, “Not my circus, not my monkeys” when someone brings you a problem that isn’t your problem. So with this part of our contract, it basically says if you bring us a project that has a report due in less than 10 working days, we can charge 1 1/2 times our normal rates-

Noah Bolmer: Sure.

David Smith: –until that first report is issued, and then it will drop back down to normal rate.

Noah Bolmer: As a matter of course, do you typically have any issues getting paid on time?

David Smith: Our retention agreement specifies a net 30 payment terms, so we should be paid 30 days after the invoice is received, and generally we get paid on time. If we don’t get paid on time, it’s usually because the invoice got buried on a desk. It’s not because they’re not trying to pay us, but there have been a couple of times where things get drawn out over several months, and sometimes we’ve worked with people to create payment plans when it turned out to be a big sum of money that they owed us.

Noah Bolmer: One general question, why is expert witnessing important? What do you find meaningful and fulfilling about being an expert witness?

David Smith: That’s a good question. There are many things that I like about it. I like being able to go out and look at equipment. I like putting the puzzle pieces together and finding the clues to figure out what happened. At the end of the day, what’s fulfilling, and this isn’t every case, but sometimes there are cases where someone’s trying to get money from someone that shouldn’t be paying that money, or someone’s trying not to pay someone money that I feel they should be reasonably paid. It’s always sad when someone gets hurt. Sometimes it’s the equipment manufacturer’s fault, and sometimes it’s not. In one instance, I was working on a case where an equipment operator truck driver had managed to run himself over with his own truck. As we did the research, the truck he was driving was in a very poor state of repair. The company had put strict conditions on the amount of work they needed to get done each day. To do that the operators were using unsafe practices, and the kicker in this case was they had produced all the police bodycam footage from six different officers that were at the scene. It was over 10 hours of bodycam footage. I had it playing on one monitor while I was doing work on another monitor because most of it was nonsense, just people walking around. In the middle of one of these videos, there was a one-minute clip where the guy’s boss was talking to the police officer and said, “This is just like that accident we had two weeks ago. The one where it ran over a mailbox and into a field.” We could point out that not only were this company’s trucks in a poor state of repair, but they knew that their operators were doing these unsafe things and they didn’t do anything to fix it.

Noah Bolmer: Wow.

David Smith: Because of the work that we put together and the attorneys did, the family was able to get compensated so they could live as comfortably as possible without the husband and father in their lives. That, to me, is meaningful. I feel like it was time well spent. I feel like I used the things that I’ve learned over the years to help somebody.

Noah Bolmer: Absolutely. Wow. What a story. Before we wrap up, do you have any last advice for expert witnesses, particularly newer experts?

David Smith: There’s a lot that I could say. It’s a fun place to be. It’s interesting work. You get to learn a lot of new things and get to work with a bunch of smart people. You get to use all sorts of fun testing equipment, so I recommend it to anybody who wants to try it but stay in your lane. Don’t go out and work on things that you don’t know anything about. Don’t stretch the opinions. It’s not your job to win the case. Be friendly, maintain your credibility, and enjoy the work.

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

David Smith: Absolutely. Thanks, Noah.

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

David Smith, MSME, MBA, PE, CSP, President, Alpine Engineering and Design, Inc.

Our guest, David Smith is the president of Alpine Engineering and Design, Inc., a mechanical engineering firm specializing in product design and development. He is a licensed safety professional, professional engineer, and has been awarded numerous patents. Mr. Smith is an experienced product liability and patent expert witness, and holds an MBA and MS in mechanical engineering from BYU.