In this episode…

In this episode of our podcast Discussions at the Round Table, host Michelle Loux connects with Dennis McAlister to discuss some of the things that he wishes he knew when first starting his career as an expert witness. Dennis shares his thoughts on the double edge sword that is the expert’s responsibility to support the attorney’s case while also providing thoughts and insights on the difficulties associated with winning. He explains his process of looking for gaps in a case that he can help the team address and prepare for, his thoughts on the interview and contract process, and much more.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Michelle Loux, Assistant Project Manager, Round Table Group

Guest: Dennis McAllister, Expert Consultant, McAllisteRx Consulting LLC

Introduction: Welcome to Discussions at the Round Table, the podcast that goes behind the scenes with influential experts. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.

Michelle Loux: Hello and welcome to another great show of Discussions at the Round Table, I’m your host, Michelle Loux. My guest is Mr. Dennis McAllister, he’s a pharmacist with McAllisteRX Consulting LLC. Thank you, Dennis, for joining me today. 

Dennis McAllister: Good morning.

Michelle Loux: One of the questions I asked you to think about was what you wished you knew the first time that you were an expert witness. 

Dennis McAllister: It took me a few cases to learn what is probably one of the most important things that I do now when I am working on a case as a retained expert to an attorney is working for their client. Whether it be plaintive or defense, when the case is new, an expert is sought out because many times there is a unique body of knowledge that the expert has that is not all that familiar to the attorney as they work their case in the early days. The pearl I learned was the expert who has as much a responsibility to support the attorney’s case as the expert does to show the attorney where there are holes or omissions in their case. Those holes and omissions may make winning it more difficult or even impossible. It is a two-edged sword, and the experts, I like to call us Switzerland, we are neutral to the case. We describe what is going on in our area of expertise and then let the attorney drive cross that fork in the road to wherever they want to go.

Michelle Loux: Yes, so when you are retained as an expert, have you found that most attorneys prepare you for opposing questions or [how] to develop a strong case? As you mentioned, there are holes in the case, do you have strong arguments that you develop along the way?

Dennis McAllister: More often than not, in the early stages of document review or evidence review the first thing I look for is where there are gaps in information that makes it impossible to provide solid support for the case. What is missing? It is obvious what the opposing side will probably pounce on? So, I look for that and then, in discussing the case it is where we go from here? Where are the strong points? What do you want us to embellish? I think the opposing questions come in deposition preparation out that timeline.

Michelle Loux: When you have your initial interview with the attorney and they are interested and interviewing candidates, how do you prepare for those interviews? Do you charge for those or do you treat it as a 10-minute interview back and forth?

Dennis McAllister: That is what you would hope would happen because you are both finding common ground. We can work together. I have also been a little disappointed and maybe naïve. Some attorneys will use that initial interview to get some pearls about their case, and then they never call you back. It is a fine line you walk. What I try and do with the facts of the case, as presented, is to give some strategies to the attorney where I could work with them to make their case better.

Michelle Loux: At Round Table Group, we always ask for party names for an internal conflict check. Is that something that you will need in that initial interview before you start discussing the matter or is that, after you are retained?

Dennis McAllister: That is helpful information because, in my situation when I was a full-time pharmacist working for a national company, I had a footprint with that company that touched one in three Americans and their insurance. There are many conflicts out there, that would pop up or there may have been a case where I also served on a regulatory body for over 20 years here in Arizona. There may be cases where I would be conflicted out because I opined on them as a regulator.

Michelle Loux: Can you talk to me a little bit about your regulation experience? Is that something you find helps you in some of the cases, or at least an understanding of different approaches to litigation?

Dennis McAllister: It has been extremely helpful. It was my experience with the Arizona State Board of Pharmacy, where I served for 23 years. I reviewed roughly 1000 cases of consumer complaints or investigative issues against the statute regulation that defines the practice of pharmacy. Much of that defines a standard of care. It becomes helpful to find where the standard of care was met or not matched. The variations around the way to do that with having experience with a regulator have made me more viable as an expert in these cases.

Michelle Loux: Anytime you are up against a state or government entity, I believe things change so having that experience is very helpful. In regard to contracts, do you find you have over the years inserted special terms that maybe you did not know, or has your experience helped you to add those terms to your contract or handle special terms?

Dennis McAllister: Most of it comes out of experience. If the retaining entity has unique needs those terms will be added into the engagement agreement. More often than not it is scheduling for a deposition or testimony, then the day before a settlement occurs, there has been a lot of work and rescheduling. So, I usually add in my engagements some kind of a fee for that kind of a thing. Successful for one side or the other. Then there are also discussions over travel and timing of that sort of thing. The pandemic has given us a new environment with virtual meetings and a lot of travel has been eliminated. I think that works for everybody, saving time, money and disruption to their lives, If there is travel involved, there are some elements I put in regarding the issue.

Michelle Loux: With the video interviews and depositions have you found that you are engaged more in those?

Dennis McAllister: I think people are accustomed to it now. In my former day job, we used to do a lot of travel weekly. I was somewhere else in the country and my people who are still on my team do not travel at all anymore. It is all virtual, back in December, I was deposed on a case that went five and a half hours and it was all virtual.  I find one of the frustrations of a virtual deposition, especially in the larger case is, there are other people in their boxes on the screen who do not identify themselves. I think it is important to know your audience and I think that should be cleared up right at the beginning.

Michelle Loux: Have you been deposed in a court with the masks on?

Dennis McAllister: Oh, absolutely. It turns around to the previous question. In live situations, masks make it more difficult to read emotion, and as much as we like to think we listen, we are also lip readers. It is nice to see what they are talking about and how they are responding. Whereas in a virtual meeting, people do not have masks on and you get the advantage of seeing those facial emotions.

Michelle Loux: When you are preparing for your expert report, have you found ways to improve the point of view or the writing over the years? Is this something that you take classes on are you just a good writer and have done it from the get-go, and you are good to go?

Dennis McAllister: Oh, I am married to my English teacher and she likes to review everything I write. She helps me with some of the structure. I think when I began writing reports, I spent too much time being wordy and not getting to the point. I have reviewed these documents. Here is the standard of care and why it is a standard of care. Here is why they matter or did not. A little more brevity makes sense because you are going to get to a deposition anyway and you are going to talk over the details.

Michelle Loux: Yes. You have had cases in the State of Arizona, but have you done a lot of outside of Arizona or national cases?

Dennis McAllister: I have done probably more outside of Arizona, than I had inside Arizona, and it is a travel issue, at that point, I know the audience and you can call it a hostile environment. It is quite the experience but I found that it works fine. I have not had any trouble with it.

Michelle Loux: Now, do you market yourself that way, or is it more word of mouth? How do people find you?

Dennis McAllister: Before I began doing this full time, I was active nationally in pharmacy regulatory and legal matters, so I have quite a corral of colleagues who know me. Most of my work comes by word of mouth. I am listed on a couple of databases and I get a fair amount of work from that. Where it is a smaller firm that does not have the contacts with colleagues I have. They will just go to those databases. In the old days, they spun the Rolodex, find one, and give them a call. There is a little more work to get the relationship started, but they seem to find me. I do not have a formal website. I am not sure that it would be that much more beneficial. I get all the work that I want. I will put in a plug for Round Table Group I get contacted every couple of months on a case. They do not always engage but they help bring me up, introducing me to attorneys, looking at cases so, that sort of marketing works very well. I have a lot of respect for Round Table Group. I have not been pleased with other expert firms.

Michelle Loux: Well, thank you. We appreciate that. We always strive to do better, learn, and grow as a small company to build that reputation. So, we appreciate that. Any last tidbits or stories that you would like to share in your experience as an expert witness that might help others entering the field?

Dennis McAllister: I would say it is important that the expert has a cornerstone or foundation of their skills and that you have something to offer that the attorney is buying. That they need for their work. You just cannot say I was a carpenter for many years building homes, and I am an expert in home construction issues. That does not fly. You must have a foundation of some sort that brings you up to this level to do this work. So, if you have it, make sure you have it available in a CV or a website so, that folks can understand what you have to offer.

Michelle Loux: Excellent advice, thank you Dennis. I appreciate your time with me today!

Dennis McAllister: All right, good talking to you.

Dennis McAllister, Expert Consultant, McAllisteRx Consulting LLC

Dennis McAllister is the founder of McAllisteRx Consulting LLC.  He is  consultant and expert with years of experience in the areas of pharmacy standard of care, negligence, pharmacy laws and regulations, pharmacy automation and development of innovative practice models