In this episode . . .

One trait that all great experts have in common is a thirst for knowledge. Even the most seasoned, experienced experts are constantly learning. Dr. Miele recommends staying active in your field; she does so through a combination of research, coaching, and speaking engagements. Additionally, she advises staying current with professional credentials, which require a current knowledgebase.  

Check out the full episode for tips on preparing for opposing attorneys’ strategies, staying in your expert wheelhouse, and the ingredients to a great attorney-expert partnership.  

Note:    Transcript has been lightly edited for clarity. 

Host:     Noah Bolmer, Round Table Group 

Guest:  Dr. Laura Miele, Owner at Miele Forensic Consulting and Mind Over Body Athletics, LLC

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to welcome Dr. Laura Miele to the show. Now, Dr. Miele owns Mind Over Body Athletics LLC and has over 30 years of experience in the sport. fitness and recreation industry. She is a professional presenter, author, and sought-after expert witness with over 10 years of experience. Dr. Miele holds a Ph.D. in Psychology. Dr. Miele, thank you for joining me today.

Dr. Laura Miele: Thank you for having me.

Noah Bolmer: Let’s jump into it. You have been in the fitness industry for a long time as an athlete, a coach, a teacher, and now as a consultant with your own company. How did you get started and how did you first get into expert witnessing?

Dr. Laura Miele: I first started as an athlete with a background in sport, fitness, and recreation, but I fell into exporting by default. I was running the Sports Injury Prevention Program for Connecticut Children’s Medical Center, and I lost my job in 2010 when everybody was losing their jobs. I found a job when I was looking for work. And I saw a sports and fitness engineer and a recreation engineer. I said, “Let me see what this entails.” and I said, “I can do that.” Then I got hired by a forensic firm and worked there for about 10 years.

Noah Bolmer: Were you specifically seeking expert witnessing engagements when you got started or did that come out of the blue? Is that something that was added on?

Dr. Laura Miele: I think I was hired to be an expert witness and sometimes you do some consulting, but they are the same. You are consulting with the counsel, with the attorneys on the litigation matter, because you are the expert. If I must testify in certain, be it depositional trial, then I do that as well.

Noah Bolmer: That is a good point. There are a couple of types of expert witnesses. There are consulting witnesses and testifying witnesses. I take it that you have a good amount of experience with both. Do you have a preference?

Dr. Laura Miele: As I get older in the game so to speak, I do enjoy the consulting part more. However, I do like going to trial. I would say depositions are not my favorite.

Noah Bolmer: Do a significant number of your engagements result in trials?

Dr. Laura Miele: No, it seems that – however, I have testified in both, probably in equal amounts. I have probably testified about 40 times. I would say about 20 were trials, and 20 were depositions. There have been more depositions than trials in the last couple of years. I am not sure if it is because things are backed up because of COVID or not. Nonetheless, out of all the cases I have worked on, I probably worked over 420 cases by now. Quite often, they settle.

Noah Bolmer: Something I hear from a significant number of experts is that a good number of their cases are settled. I want to back up to when you were first getting started. You joined this firm to primarily be an expert witness but also to consult. Did you have somebody showing you the ropes and teaching you how to be a good expert witness? What was it like at the beginning, and how has that progressed throughout your career?

Dr. Laura Miele: It was scary in the beginning. It can be intimidating even though you are an expert in your field, or, for me many fields. You must also know the legalese, so to speak, and you must learn the terms and understand what litigation involves. It takes more training and studying. I was very fortunate at the firm that I was with, we were trained quite well and did have mentors. I had a fabulous female mentor. She was an aquatics expert and was sought after in the industry. She was busy. Then I had another mentor who has passed away now, but he is still the voice in my head when it comes to deposition of trial. I was taught very well on how to conduct myself. How to answer certain things and – but you are never prepared until you get in the trenches. You can be trained, but you need the experience as an expert to understand what is going to happen in trial and deposition because there is always a curveball here and there.

Noah Bolmer: As you say, there is no replacement for experience. What are some of the training and preparation techniques that work for you? Let’s dig into that a little. Let’s say, for example, you are going to write a report, what techniques do you use to make sure you are giving in the correct scope the attorney wants, and that you are both on the same page?

Dr. Laura Miele: That is a great question because the way I handle cases, I am more what is considered the standard of care expert and what that involves is more qualification versus quantification like an engineer or a Dr. who would have to quantify their responses. For me, I have to work up the file, so I use- like anyone else’s scientific methodology, and my methodology, entails reviewing the whole case file extrapolating the important facts and then rendering my opinions. They are not opinions, so they are based on my education, experience, and training. I also investigated the industry and found the best and safest industry practices. Then I use them as supportive references for what I said. Because I want to demonstrate that I am not the only one saying this is how it is done in the industry. These are the best and safest practices.

Noah Bolmer: When you are doing the actual writing of it, tell me about the way you organize your thoughts, and the way that you get it on paper. How do you write? Do you outline it? Do you just go with the flow as it comes off the top of your head? Do you work with your attorney to make sure there can be discovery Issues depending on the specific case you are working on? When possible, do you work with your attorney to make sure that it is getting the correct points?

Dr. Laura Miele: I do not typically work with attorneys. If they would like to see a draft, I allow them. But my opinions are what they are, so if they do not like the tomato/tomato type thing, then yeah, I will work with them, but I do not typically work with them on my report. When it comes to writing the report, I work on the same summary. I put a summary together and that becomes my report. I do not put things in all different areas, it is one working summary that turns it into the report itself and I was always taught to ask questions. What happened? What supportive references do you believe will back up what you feel happened, and if X then Y. I always say my “Woody” statement. I call and so anybody who is my age or older remembers Woody Woodpecker and if Woody had gone straight to the police this would never have happened. If such and such had done this, then this would not have happened. So, I always have my
“Woody” statement because that is when you want to hammer home and then you have to give the why behind. It is an outline of three questions and then I put it all together.

Noah Bolmer: Let’s back up and talk a little about your expertise in general. What does it mean to you to be an expert, and how do you continue to be an expert? Some fields change daily, and others are relatively static, but are you always learning? Do you attend any workshops? What sorts of things do you do to remain an expert? What do you recommend that experts, not even in your field, do to stay on top of their game?

Dr. Laura Miele: I am a constant learner. I do not know if I sleep half the time. I am constantly researching. I go above and beyond when I research my cases. I will read and, “Wow, that is interesting.” Then, I learn more about it. I believe being an expert is staying at top of your game and always learning, growing, and evolving with what is going on in the industry. The great thing for me is I am in all the industries that I testify for. In sports, I still coach. I am also a sports psychology consultant. I am constantly around different teams, athletes, and coaches. I also speak frequently about injury prevention and different genres. I could speak about it in amusements, in sports, recreation, and fitness. I have discussed how they all translate into each other when it comes to specific areas. For instance, in facility operations. I always re-up my credentials. So, for some of my certifications, you must go back a year or two or three, so I am always keeping certain certifications alive, and I am always growing. That is the only answer I have for that. It is a constant grind when you are an expert, and if you want to be a good expert.

Noah Bolmer: And a credible expert, right?

Dr. Laura Miele: Correct. That is first and foremost right there.

Noah Bolmer: What does credibility mean to you? You went over some of it just now, but in general, what does it mean to be a credible expert witness?

Dr. Laura Miele: I will give you an example. I testified last week. We talked earlier about curveballs in the industry. As an expert, some of the strategies attorneys pull push the envelope, let’s just say. Creditable experts do not lie. They are honest and answer the question the way it is asked. If they must concede to something, that is the way it is. It is what it is. I have seen some experts who are poor at it and some who are good. Being a female in the industry, I like to be a reputable expert and not try to make this a thing, but it is a predominantly a male-dominated industry. As a female, you want to heighten your game. The way you carry yourself, what you say, and do due diligence for your client makes you credible. Not because of being a female, but in general, I feel we often fight a little harder in the industry. Going into this deposition this attorney probably grilled me for about three and a half hours, predominantly on my background. He pulled up articles I wrote in 2015 and things that were said before that. What they try to do is catch you off guard and you are going, “Oh my God, why are they bringing this stuff up?”  I am a seasoned expert and have been through this, I know what it is, and I see the game he is playing, which is sad sometimes because people’s livelihoods and things are at stake. So, that right there goes to my credibility because I take all my cases seriously, and sometimes, I would not say I take them personally, but I own them so I can work them to the manner in which I can help my client. But that being said, I stay within my wheelhouse. Being a credible expert is also staying within your wheelhouse, in your sandbox, not stepping out, and overextending yourself. As I said, I have a vast background in sports, fitness, and recreation.

Getting back to the deposition, the attorney continued to ask questions, and then he said, “Were your opinions ever struck?” or “Did you ever have this happen or that happen?” The question is a yes, no, yes. “Well, did you know this?” and he threw out some case that I had no idea that an opinion got struck. He was trying to make it seem like it was bearing on my credibility. Often, there are many legal arguments behind the scenes, and new experts do not know this, right? So, now that I am a seasoned expert, I know it. If I were a new expert and got attacked this way during deposition, I probably would have panicked and would not know how to answer. I would have been like, “Oh my God, I did something wrong?” He continued to push. You must make sure you are credible and do not want to be a hothead, but I did get a little heated, which does not happen often. Only because he continued to try to tarnish me, and I did not appreciate the strategy. Being strategic is one thing, but when it started to feel like a personal attack, it was a little much. But I did learn something from that deposition, and it was I should have stopped it when he asked, “Are you a liar?” and “Are you lying?” and that kind of thing. I should have stopped it, but I did not know how. I reached out to a former mentor, and he said, “Next time, you stop it and tell him you will do it another time.” Because at that time it started to become personal, which was unnecessary, honestly. I should have said to the attorney,” No, I did not know that opinion was struck.” There have been nights before I go to trial, and I’ve had nine opinions, I go to prep with the attorney, and he says, “Oh, you can only speak to one….” and I’m like, “What do you mean? I just studied 30 hours for this trial. That would have cut down on loss of sleep for me.” He said, “There are immunities, and there were many legal arguments behind the scenes, which have nothing to do with you.” Many of your opinions get struck from the record in a hearing, where you step out of your sandbox. I chose not to do that because I like my job. This is my career. I am big on my reputation, not only as an expert but in sports psychology. What I do with my athletes. I am a coach. I am a role model, and it is important to me. When this attorney was coming at me at that level, I questioned him, which I do not often do. I asked, “I do not understand your strategy here. Can we move on?” So, it was interesting.

Noah Bolmer: You made many great points there. Is that something you feel attorneys could do a better job preparing newer experts? You said that if this had been your first time, you may have panicked, given that strategy. So, what is the takeaway? What can newer experts do to not find themselves in that situation? If they do, how should they react to that?

Dr. Laura Miele: They should recognize the strategy and why they are doing it. Quite often attorneys start with the BS part, where they are just asking you questions. One, they are trying to mentally exhaust you by going through your background and it is sometimes grueling. For a new expert, it can be tiring. I am old and it gets tiring, but I am better at it now. It is important for new experts to recognize these strategies are to deflect. When the attorneys use this strategy, they do not have anything to get you on your opinions. So, they are going to do whatever they can to try to push you into a corner and have you say something out of context to try to get you pushed out of the case because if they know you have sound opinions, and they cannot fight them, they are going to use strategies to try to bring it to the summary judgment or bring it to the judge and say, “This expert does not have this qualification or that qualification.” So, that is one. Two, take a deep breath and answer the first question when you hear it and then get off. Take a break. It is important when you testify to take a break every hour. I cap my depositions at 4 hours because I find that I get too tired after that, and it is not fair to my client if I cannot conduct myself in a manner that is going to be able to retrieve some of the information that I need. And I want to be crisp. So sometimes if I have, for instance, even in this case it was in the far West so, it was a 3-hour time difference. Now, I am testifying well into the late afternoon. By that time, I was already tired, and they had an unfair advantage. It is not fair to my client, so I recognize that. If you realize that the attorney is trying to attack you or bring up something they found on Facebook. New experts, be careful what you post on Facebook, even your political views.  I am careful about what I post. I made my Facebook private. Not that I have anything to hide. I am always posting my kids conducting their sports and funny memes, but you want to be careful because you are a presence now. As an expert, they will find anything they can to use against you during a trial right on a screen. They will also do it at deposition. New experts must be prepared for the way they conduct themselves in public. What you say and do can be used against you. That is not for someone who gets arrested. I feel like we must walk a different type of line in life when you are an expert and that is fine because that makes you credible in life.

Noah Bolmer: Especially for somebody who is as well-published as you, I imagine it being difficult to keep track of everything that you have ever said. Every opinion that you have ever held, and anything that you have ever said on social media. Ultimately somebody is going to try and impeach you on the stand. So. besides being ready for it and knowing that it is going to happen, do you have any specific techniques that you use to keep your cool on the stand when you are getting grilled? How do you deal with the stress and pressure of it?

Dr. Laura Miele: I prepare myself mentally for it before the deposition or trial. I talk to my clients and the attorneys who hired me. I ask them what techniques and demeanor this attorney has, and I mentally prepare myself for getting an aggressive person, a laid-back person, or a passive-aggressive person, which I just had last week. I will give you an example. I know you wanted me to give some examples of trials. I had another trial that provided another curveball, which was a learning lesson for younger experts. I would not say it is necessarily super green, but I was green. I was qualified as a fitness expert on the stand, but I had expertise that bled into other areas of this case. There were four other experts on the case. So, when I was on the stand, I was getting grilled by this attorney, and he was yelling at me. I could not believe the judge allowed it. I am not even going to say the state, but I would never want to testify in that state. He was yelling and asking me these questions and I stopped. I was qualified specifically for this and that is not within the scope of my report, The judge was like, “Too bad. Answer the questions.” I [was] like, “But I did not study for that portion.” He was like, “Well, you are an expert and I feel that you are not.” I said, “I am, but I was not qualified just now by the court for that.” He said, “Are you arguing with me?”  I said, “No, but they qualified me to speak to fitness and the warnings of the fitness machine” or whatever it was. I got myself together. Answer it, move on, and wait to see what the attorney says. Thank God I had a black suit on, and I took a deep breath and told myself this attorney is paid to be a jerk. Answer the questions and do your job to the best of your ability. That is all we can do as experts. Answer the questions we are supposed to give to the questions. Do not give too much. Answer It, move on, and wait to see what the attorney says. New experts – when you are on trial, you want to engage with the jury. The reason why I said I like trials over depositions is because I feel like I am teaching in trials, but not in depositions. In trials, I am trying to educate the jury on what happened, what could have been done differently, or who did what. If it is playing up a defense and engaging them so they can have a good understanding of what exactly happened. Sometimes I ask the judge if I can get up and demonstrate if it is a fitness move, because I think it Is important for them to understand and see it. Many people learn by seeing. Some learn just by hearing. You want to try to touch on everybody’s learning style, so to speak, and that Is the teacher in me coming out. But it is the truth. You want to teach them.

Noah Bolmer: You mentioned a couple times about staying in your wheelhouse. Is that part of your vetting process when you’re deciding whether or not to take on a new engagement and you’re asking and they’re telling you about the case that you’re going to be involved in? What are the factors that go into you saying yes, I want to take this case or no, I probably won’t. Is one of those you know how far it diverges from your quote/unquote wheelhouse?

Dr. Laura Miele: Correct. Everything is based on my education, training, and experience. I will give you an example. I received an e-mail right before Thanksgiving regarding a boxing case. I have taken boxing cases before, but this one was pushing my wheelhouse, so I turned it down because it was not necessary. I am already a busy expert, and even if I was desperate and needed my last dollar, I would not take it. I am ethical and at the end of the day, I am the one who must support my opinions and create a relationship with the client. I do not want to take on a client and not do my due diligence. Then get on the stand and be asked questions that I cannot answer to a degree of professional certainty. I would not do it. I vet them that way. Can I handle it? Have I done it? What is my education and training going to be able to bring to the table? If it is not enough, as in this case, I will not do it.

Noah Bolmer: Have you turned down a significant number of cases?

Dr. Laura Miele: I would not say significant, but I turn down a few a year. In most cases that come to me, I take. Sometimes if I feel like it is out of my wheelhouse, I stand as a consulting expert. I will consult, they will not name me as an expert, but behind the scenes, I am helping the attorney work up the file and like to help him with this.

Noah Bolmer: Experts can be contacted at any point in the progression of the case. Do you feel that in general, and I feel I already know the answer to this question, do you feel that in general, they bring you in early enough or are you often scrambling to get everything done in the amount of time that you are given?

Dr. Laura Miele: That depends on the day. You have some attorneys who want everything from the beginning. They want you to help you with discovery, which is fabulous because you can provide them with questions for assisted suggested discovery. Then you have attorneys, who are like, “I need a report done last week” and they throw a stack of papers on your lap. If that happens and I am too busy, I have to turn it down. I cannot handle a case that I cannot fully work it up properly. Again, that talks about credibility. You have to be able to be prepared and put together a report and render opinions. I cannot be given something and have an attorney say, “You have a 48-hour turnover” but I have 1000 pages to read. It is not going to happen. Now, other experts will probably do it for them, but if they tell you they are going through everything, they are not. There is no way. So, for me, that is one of the reasons why I would turn something down. But it depends on the day.

Noah Bolmer: Let’s talk about positive experiences. What makes a relationship with your engaging attorney and yourself positive? What are some examples of good experiences you have had as an expert witness? What is it the attorneys do specifically to enhance that relationship?

Dr. Laura Miele: From the onset of the phone call, they provide the facts and do not give me their skewed facts. That creates a positive experience because the one thing you do not want to do as an expert is go in with this preconceived notion. After all, the attorney said something on the first phone call. You do not ever provide opinions on that phone call, but you listen to it. Then when you get the case file and review it, it is not the way it was told to you. You then must have this difficult conversation with an attorney that will not create a positive environment. You want positive communication. [You want to hear], “This is what I need you for. This is what happened.” They are on point and communicative. They are not condescending. I think another aspect of a positive relationship is that you can tell that the attorney is involved in the case. Sometimes, it is not that they are not involved, but they are busy, and they have a paralegal doing more of the contact with you. I prefer to have contact with the attorney. So, with attorneys, I have the majority of contact, and it leads to a more positive experience because it is smoother, easier, and less time-consuming. If that makes any sense.

Noah Bolmer: Sure. Of course, before we wrap up, do you have any last tips for newer expert witnesses specifically or attorneys working with newer expert witnesses? How can they make these engagements more positive from the get-go?

Dr. Laura Miele: I think for any new expert, do your research and there are books out there that will help you to become a good expert. I read a lot of books. You need to I call it learning the craft of exporting too. Just because you are an expert does not mean you are going to be exporting as an expert at the craft of testifying. Learn how to testify. Ask the attorneys you are working with, “Can you test me here?” [or] “Can you question me the way I might be questioned?” Especially as a new expert. We did that many times. I was not allowed to testify in my old firm until we prepped. We were prepped by a mentor, and they questioned us. I no longer do that because I prep myself. I have an idea, if I was on the other side, what would I ask myself? That is a good thing for a new expert as well. Always picture if you were on the plaintiff or you are on the defense, whatever side you are on, think about what the opposite side would do and how you would work up the case if you take the case. How would you work up the case? That will help you also. Do your research and make sure that you learn the craft of being an expert. I think that will help you sleep better and be less stressed when you are thrown some curveballs during deposition.

Noah Bolmer: Sage advice, Dr. Miele, thank you for joining me today.

Dr. Laura Miele: You are welcome. Thanks for having me.

Dr. Laura Miele, Owner at Mind Over Body Athletics, LLC and Miele Forensic Consulting

Our guest, Dr. Laura Miele, is the owner of Mind Over Body Athletics, LLC and Miele Forensic Consulting, a fitness inspections and forensic consulting firm. She is an expert in facility operations, physical education, supervision, coaching, operations, emergency preparation, and more. She is a professional presenter, author and sought after expert witness with over 10 years of experience. Dr. Miele holds a PhD in psychology.