In this episode…

While an attorney’s objective is to prevail, the expert witness’s objective is to present an accurate, uncompromised opinion. Dr. Williams removes winning from his calculus to provide an honest, reliable opinion:

I don’t look to win (or lose) because that’s not what you’re supposed to do. You’re not supposed to [care about] how many accolades or wins you have. This is not part of expert witnessing . . . I see opposing experts doing whatever they can to win . . . Don’t do that. Just explain the science behind it all so that the jury and the judge are the ones who decide who ‘wins or loses’ because you should not have a stake in it.

This philosophy means that judges and juries find expert testimony compelling. Additional topics include a diverse approach to witnessing that includes working with plaintiffs and defendants, staying organized, and levity in the courtroom.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. David Williams, Owner, David T. Williams and Associates

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to welcome Dr. David Williams. He owns David T. Williams and Associates and has over forty years of experience in the Water Resources industry. He is a renowned and sought-after expert in Sedimentation Engineering and Hydraulic Design and has authored over one hundred technical papers. Dr. Williams holds professional engineering licenses in 11 States and certifications in hydrology, floodplain management, erosions and sediment control, and more, and he holds a Ph.D. from Colorado State. Dr. Williams, thank you for joining me today.

Dr. David Williams: Thank you, Noah, for having me.

Noah Bolmer: Of course, let’s jump into it. Tell me about your firm and how you got into the water resources industry.

Dr. David Williams: It was by accident. There was a litigation in Hawaii which made my eyes pop out. I said, “Oh, Hawaii.” They were interested in having an expert testify about the relationship to putting in a suburb of Honolulu, but they could not find anybody to be an expert for them because the clients were a group of homeowners trying to buy out their houses. The defendants were one of the six primary families that initially settled in Hawaii. They were religion-friendly there and so no one wanted to go up against them. They had to go out of state and so I was contacted. [They asked], “Do you have expertise in water resources? We need you. Could you help us?” I said, “That sounds like fun.” I probably would not have accepted if it was not.

Noah Bolmer: Did that call completely out of the blue or were you looking for an expert witness engagement?

Dr. David Williams: No, I was not looking at all, it just came to me.

Noah Bolmer: When you get that call, it is a vetting process, but it is a two-way vetting process. You are vetting them, and they are vetting you. You are deciding if you want to do it. You told me before the show in an e-mail that your philosophy of accepting clients is that winning or losing is not part of your calculus. What do you look for?

Dr. David Williams: I do not try to decide if they are at fault or not at fault. If they adhere to Plato, they are defended. What I want to see is do they need someone to help explain this science to the jury and the judge in such a way that they have a credible case, and their side is properly represented. I do not look at winning or losing because that is not what you should do. You are not supposed to like the accolades or wins you have. That is not part of expert witnessing, and I see too much of that in my industry. I see opposing experts doing whatever they can to win. Do not try to win. Try to explain the science behind it all. The jury and judge are the ones who decide who wins or loses. You should not have a stake in it. I pointed this out in the course I do on expert witnessing. It is illegal to have a contingency as part of your fee. If you win or lose, they say, “If you win this case, you get a big bonus.” In all states, it is illegal, and sometimes the attorneys try to pressure you. I have had it several times where the attorney did not get as much as he wanted.” So, he said. “David, I want this last bill cut in half because I did not get as much as I wanted, so I must hold it. It is not against the law in your state.” Okay, only if they find out.

Noah Bolmer: Let’s pivot to ethics for a moment. Have you had attorneys who were not directly telling you to say or do something you should not, but nudged you in an uncomfortable direction?

Dr. David Williams: You must understand that you are not there to win, but attorneys are there to win. Their objective is winning, and they will do everything they can. If you say, “Probably” they say, “Could you possibly?” You say, “Probably.” They say, “Could you say most likely?” I have had them try to urge me to say something like that, and I may change it only to my comfort level. It does not change the meaning of what I am saying. It does not twist the truth. That is what I look for because you must be honest. You must be ethical about all these things, and I see too much of that with other expert witnesses. I am not saying they are all that way. I love to work with some of our great expert witnesses. The point is yes, attorneys will try hard to get you to slant your words, your report, and your testimony to favor their side. You must be aware of this and be able to . . . resist that temptation.

Noah Bolmer: So, you advocate for a more proactive approach with your attorney.

Dr. David Williams: Yes, I tell them, “I teach a half-day short course on how to be an expert witness.” I emphasize being an ethical, responsible, and caring person. I tell them I am seasoned in this and do not try to force me into a corner because I may rear back at you. Do not do that. I could be in the special forces in the Army.

Noah Bolmer: So, is this already in your blood?

Dr. David Williams: Yes, I was in the 7th Special Forces during. Vietnam, which dates me. It was the Green Berets.

Noah Bolmer: Absolutely. Let’s talk about that preparation. You teach a course on this. What preparation techniques do you find to be the most effective in report writing, depositions, and cross-examination? What works and importantly what does not work? What are the things that attorneys have tried that are not particularly effective with newer expert witnesses?

Dr. David Williams: First, you must realize that being an expert witness is different from doing a regular project, and you must make sure that you are organized. You tell your subordinates that there is confidentiality, and you must put things in a separate folder when you send e-mails. You must double-check things and put your e-mails in a folder just for that case. Under discovery, when you are asked to present all the correspondence related to that case, you go straight to that folder instead of searching through all your e-mails. That is a part of the preparation. Be thorough about getting the background information. That is a good start. Sometimes I do it myself, and sometimes I have my assistant. I have a senior engineer who helps me with organizing this stuff. What are the issues? What are the data sources to get the information? Then, what are the types of evidence that are out there? Things like newspaper articles or maybe, a local TV station took videos of the flooding from their helicopter available to say, “I am a Water Resources Engineer.” If the other side is a public entity, they may have documents, such as maintenance manuals, operation procedures, and how to operate a reservoir. So, what we lay down there says, “What are the data sources, and do you go after those data sources?” I go after this data source and then we come back together on that. Organization to find your data sources and then make sure you got the whole part of it. So, one of the things I found out is that the attorney on your side will not necessarily lie to you, but they will hide things from you because it is prejudicial against their case. They do not want you to know it because it may affect your analysis. There is nothing worse than making a declaration, and then finding out he had another expert saying something the exact opposite, which he did not like. That is why they got rid of that person and got you. But you did not know that he was not going to tell anybody. It has to be discovered and says that is what he did.

Noah Bolmer: So, that is part of that proactive approach. You must ask your attorney for the complete document and the complete situation that you are in. Do you find yourself in situations sometimes where you wish the attorney had brought you in earlier in the case, so you had more time to find out these sorts of things?

Dr. David Williams: Almost every time. I wish they had hired me earlier. I have had it where one says, “I am going to trial in three weeks.” I said, “I need to report to court tomorrow, and I am going on a 10-day cruise.” That has happened too many times. I have been involved in about 50 cases. I have never had them contact me too early. It always seems to be too late. I chastised that order, and they had various reasons why they waited until the end. They said, ‘We thought we were going to settle, and did not want to hire you and must pay your retainer.” Then find out we aren’t going to use you well. I can understand, but it is going to prejudice me for doing a good quality job for you. If you are going to do something like that.

Noah Bolmer: With the reports, do you typically get some kind of a skeletal outline or are you mainly developing reports whole cloth?

Dr. David Williams: I tend to do it in terms of the dialogue I use. Engineers and scientists are used to doing scientific or engineering reports. These reports are not for engineers. They are for the court system. A jury, your lawyer, and other lawyers will review it and need to know what you are doing because they will be reading or digesting part of it. If I wrote a report, I would do an engineering report that would not necessarily go over their heads, but it would be confusing. I laid it out as a tale. I am telling a story. As I get to a specific part of the story, I will make sure I reference the proper source I used to get that information. That is part of the reference, and I must reference it, I observed this, and this happened. It is supported by this source that I got off the Internet or a report made by this university on this incident. I step back and make sure that I cover all the bases. I will go back, look at it, and then turn to the scientific or engineering basis to verify that I said what I wanted to say, presented my sources, and made a forceful conclusion. That is what you do in a regular engineer report. However, I want to make sure that I do this in a more lane way also, but as I said, I know I start off doing this on a narrative and I think that works best for everyone. Therefore, anybody can read it.

Noah Bolmer: With such a large body of work and technical papers that you have written over the years, in addition to discoverable expert reports, do you ever worry about getting impeached on something that you may have said a long time ago on a particular topic? Maybe the laws changed or maybe engineering itself has changed. How do you deal with that?

Dr. David Williams: Oh, yeah. I do not worry too much because I try to stay very logical. Physics does not change over time. The laws of nature do not change over time. If I am truthful and not biased at the time, I wrote that report, opinion paper, or White Paper. I have done many of those and I make sure that I look back upon him and say, “Okay, did I impeach myself?” You might say from earlier things what I am saying now versus what I said earlier. I do not think I have ever found I say this in my report now but said that back in 2018. I have never found that because I do not try to change the laws of physics.

Noah Bolmer: You talk about how some expert witnesses may not be up to snuff, but in one of your e-mails, you told me not to trash-talk other expert witnesses. How do you proactively tell your attorney the other side is getting something wrong without it evolving into fisticuffs?

Dr. David Williams: What it is that you discuss with your attorney is the basis of your opinion. The laws of physics are based upon your opinion. Then you present what the other side says, “Here is where they have that wrong.” I took this to my attorney [letting them know] this is where they are going, but I am not going to trash them because we disagree. After all, they probably have a Ph.D. with professional life. This is all. Those kinds of things. What I do in trial or even deposition when they say, “You know Dr. So and So said this is contrary to what you said.” What I say is the general, “Mr. So and So or Dr. So and So, I may or may not.” I continue, “I have read his report. I can understand his logic. But in this case, I disagree with his assumptions, and disagree with these conclusions based upon those assumptions. Those assumptions are different, and contrary to mine. We come from different aspects of it. I respect his opinion, but I think he is wrong.”

Noah Bolmer: Do you frequently find yourself across the table from people that you know?

Dr. David Williams: Oh yes. I had one where the person across the table was my mentor. That is one of the things I talk about in my class, before you accept an assignment. I say, “Find out who the experts are on the other side.” If they are willing to disclose them, and if you find out who they are, can [you] be emotionally detached from that? Can [you] be objective with that? Maybe the other side is someone, like your nemesis, can you be rational about your analysis and not go after them? You must sit back and ask yourself those questions, “Can I be objective?” or “Can I be fair?”

Noah Bolmer: I have heard this from many expert witnesses. Far more than I would have expected. It is interesting to me that experts have found themselves in a position where they have been on the opposite side of the table from an attorney. Then that attorney ends up wanting to engage them because they did such a good job defending against their position. Is that a situation that you found yourself in?

Dr. David Williams: I did some work against the County of Los Angeles. They were doing some bad things to my client. That was one of the few cases that went to trial. Only about one out of ten go to trial, and I testified and used analogies, and it went well. They awarded the case to my side and gave us four times the punitive damages. Wow, 4 times! It was almost unheard of and as I was walking out the door, the other side’s attorney asked for my business card and said, “Maybe we may call upon you on another case.”

Noah Bolmer: That has to feel good.

Dr. David Williams: Yeah, what got me was that he was an engineer himself before he became an attorney. What happened is that he thought he knew the subject matter because he was an engineer. What could be so [difficult] about hydrology and hydraulics? It should be simple. I had soil mechanics. Soil mechanics is tough stuff, but he thought that he would know everything. I ran technical circles around him because he did not prepare himself. He thought he knew it all because he was indeed an engineer. Hydrology and hydraulics are intricate types of science. He was at fault, and he lost his case.

Noah Bolmer: That is interesting. Let’s talk about what it means to be an expert. You have a long list of credentials and certifications. Do you recommend that newer experts find a niche, or do you think that it is better to be a generalist when you are talking about these super complex areas of engineering?

Dr. David Williams: I try to stay focused on water resources engineering, which is part of civil engineering. Civil engineering is one of the largest disciplines within engineering. You have mechanical and industrial, but there are probably as many civil engineering practitioners as all the other engineers combined. That shows you how big it is. For instance, the American Society of Civil Engineers has 150,000 members. That is a large number of engineers. I try to stay within water resources by staying focused on that one. For instance, water resources can involve things such as water treatment. I do not do that. Irrigation, I do not do that. I do rivers, reservoirs, levees, and erosion control. I stay within that and about a third of my inquiries I refuse or turn down saying, “You are right, those sources are related to water, but that is not my area of expertise.” I hate to see work go, but the worst thing I could do is be a disservice to that side’s attorney.

Noah Bolmer: In general, it sounds to me like you are saying it is best to focus on some amount of a niche and become a super expert in that area.

Dr. David Williams: No, you do not have to be a super expert, to be an expert witness. I do not think you have to be a super expert because you are when you present your stuff, you are not. You are doing second-degree equations or anything like that in front of the jury or anything like that. So, you are not doing that. You just must make a complex situation into a simple story because engineers and scientists are not going to make up a majority of the jury. You have got to be a storyteller and not tell stories but tell it like a story.

Noah Bolmer: A good communicator.

Dr. David Williams: Yeah. There you go, good communicator. You do not have to be you. After one of my workshops, someone asked me, “What are your credentials and how many years of experience should you have to be an expert witness? And I said, “I think a minimum of 20 years of working experience.” Hopefully, you have learned your stuff sufficiently so you can be cognizant of it and understand all the nuances of it. Now, you do not have to search for cutting-edge research on that topic. If Civil Engineering is a wide topic, especially water resources, I do a wide variety of hydraulics, a little meteorology, hydraulics, runoff analysis, reservoir operation, erosion control, stream bag protection, and levy design. All those things are involved in that, but there are parts of water reasons I do not get into. You do not have to be what I would consider an expert on it because after a while, when and, I have seen this happen, the attorney would at trial start reading your resume to the jury. There is a point maybe after the 5th or 6th title or 5th or 6th set of letters after your name, their eyes start rolling back and you are not gaining any credibility from that.

Noah Bolmer: Glazing over?

Dr. David Williams: I have about 150 references. I could get away with 50 if I wanted because all they see is that the guy has written a lot and presented to many people and his peers. I say 20 years of experience and good working knowledge. A good knowledge of fundamentals and nuances, not cutting-edge knowledge, but good fundamental knowledge and nuances of that topic. The worst experts I have seen on the other side are professors. They tend to talk down to people because they are talking to their students. They have a tendency to talk down to them and they have been in the ivory tower for 20-30 years and they are not used to somebody objecting to what they say. Well, somebody else has a different opinion. [They’ll hear], “Dr. Williams has a different opinion about that, and he thinks it is this. What do you think about that?” Then all of a sudden someone is disputing what they said. That is like a student saying, “Dr. So and So is what?” They have never had that happen before, and they freeze up. I am not saying all of them, but many of them I have seen are that way. Some credible professors do know how to tell a story. They are hard to beat.

Noah Bolmer: Absolutely. I have had a few of them myself, and they are the ones that I remember the most.

Dr. David Williams: Oh yeah, I had a colleague named Daryl Simmons. He was about 10 to 20 years older than me. He was a mentor. He was like your grandfather, and he had a Ph.D. from Colorado State where I went to and wrote many books as a leading scientist in the field of Water Resources. What was devastating about him was he played on that grandfather thing. He had a big pipe in his mouth. He was good at that.

Noah Bolmer: One of the things you advocate for is variety. Tell me about the advantages of a diverse client base that includes plaintiffs, defendants, etc.

Dr. David Williams: One of the things I found out during the trial is that they will look at your resume and go over cases you have been in and they would say was that for the plaintiff or the defendant, were they those with deep pockets or shallow pockets? They would ask that kind of stuff, and I have made a conscious effort to make sure that I get a good mix of 50/50 defendants or clients with deep pockets like a flood control district or state. I have even been up against the federal government, which supposedly has deep pockets, but against them. I have also taken homeowners who do not have deep pockets. You want to show a variety, so you do not come across as a “hired gun” to the jury or judge. [The other side will spin it saying], “This guy always goes for the ones with deep pockets. See, he always defends states, the Feds, flood control districts, and cities. All with deep pockets. Why do you never go against them? Do you not believe in justice? Don’t you think there is justice to be served to a person or homeowners who were flooded? Do you not think that they deserve your expertise?” They make it sound like, “No, I do not do that because they do not have enough money.” They try to do the opposite or the opposing attorney will try to do everything in their power to lower you in the eyes of the jury, which is a “hired gun’ [instead of being] one of them.

Noah Bolmer: Is that a common tactic that you have come across?

Dr. David Williams: Very often. About half the time I see they try not to degrade you but pigeonhole you. Lower you in the eyes of the jury or the judge, and they will try that. One of the things I say in my presentations is you must have a thick skin to do this stuff.

Noah Bolmer: Going to pigeonhole a little bit.

Dr. David Williams: They will say, “Do you realize in eighth grade you got a ‘C’ in science?” They will do all sorts of things like that. When I was doing litigation in Arizona, I was doing a presentation up in Flagstaff for the Floodplain Management Association on how to be an expert witness, and the other side sent two of their attorneys to my class to see if they could trip me up and intimidate me because I said, “Everybody, please stand up and introduce yourself, who you work for, and why are you here?” They stood up and said they were associates from So, and So and they were here to see what I was saying. They were looking for anything that would be illegal or bad advice they could use at the trial, arbitration, or whatever to make me look as bad as possible. Can you imagine the cost of two attorneys driving four hours each way so they could sit in on my presentation? You can imagine the cost of that, but they thought that maybe they could.

Noah Bolmer: That’s unbelievable. Do you have any specific strategies that you recommend for new attorneys to kind of keep their calm and keep their cool in those situations? You know, maybe not when there’s attorneys driving out to try and catch them in the act. But, you know, during a testimony or cross examination, for example, do you, do you think as an example? That mock cross examinations are useful for that.

Dr. David Williams: I have never had another attorney ask me questions in a mock trial. I have been involved in cases where hundreds of millions of dollars were at stake. You would think they would spend money doing mock trials, but they did not. I do not know the value of it because I have never been in one, I did talk to my attorney about coming up with a secret sign that tells them something is not right when I am in a trial or deposition, It may be something like scratching on my forehead or something that I normally do not do. I would alert the attorney that something is amiss, not going properly, or maybe bad for our side. Then they would say, “It is about 11:00. Could we have a lunch break now?” or something like that.

One of the things I preach is that when doing this you should always have a weak bladder and be hard of hearing. “Your honor, can we have a restroom break?” You may be getting in trouble and need to talk to your attorney. The other thing is being hard of hearing because you are asked a question that throws you, but you do not want to seem shocked. So, what you do is [say], “Oh, I did not hear that. Could you please repeat that for me?” You heard it the first time, but your mind is figuring out how to answer this while they are repeating the question. That is why I say be hard of hearing.

Noah Bolmer: I like the hand signal idea. It is like a catcher and a pitcher, right? Like sending what the next pitch is going to be?

Dr. David Williams: That was a movie with Robert Redford and whoever. They rubbed their noses, and that was the signal. Do you remember that? I do not know if…

Noah Bolmer: No, I have never seen that one, but that is….

Dr. David Williams: That is what they did. They were doing scams and that was one of the signals. They rubbed their nose like this, and that told them that something was going off.

Noah Bolmer: Do you have any stories or any cases that you can talk about that fundamentally changed or reinforced the way you approach expert witnessing in general?

Dr. David Williams: I wrote about two attorneys who hated each other. They were on opposite sides. I was aghast at the way they behaved. I always thought attorneys could be stiff and formal. You think it is a very formal thing. It is a serious thing but there is levity in that, right? For instance, I did a case in Hawaii, and I was up on the witness stand. It was a flooding case, and my side had a widow who cried through her testimony, saying that this flooding was caused by the other side. [She said], “It caused me to lose everything of my deceased husband. I lost all my pictures and all his stuff from this flood because of this action.” She was crying and had the jury crying. I came up after that. The attorney on my side [introduced me like] this, “Dr. Williams, you do not seem like a Williams. Williams is a Welsh name.” I said, “I am half Japanese.” [My attorney continued], “Oh, you are half Japanese. Okay, what half?” [I replied,] “My mother was Japanese, and my father was an American, but I was adopted from an orphanage in Japan.” Then the other side’s attorney jumped up and said, “This is not fair, your Honor. The attorney on the opposite side is throwing widows and orphans at me.”

Noah Bolmer: Sometimes you just must break the tension a little.

Dr. David Williams: That told me that it is not all serious, but there is some freedom to it, which allowed me to be more relaxed in my testimony. I was stiff early in my career, too stiff. You must project yourself as if it is you and the jury. I am a person with feelings and emotions, not a talking head; That incident taught me that it is okay to joke but not be disrespectful of the situation or anybody. Do not say bad things that people say about each other. Make sure you do not do that. It was a turning point in my career in terms of loosening up. Sometimes, you do not have to wear a Brooks Brothers suit. I can wear a sports Jacket like I am going to Tennessee for a trial. I have a nice custom-made suit. I am not wearing a nice dress shirt, nice slacks, and a nice sports coat because it is less formal. Let’s say Los Angeles or San Francisco or something like that and. you do not want to come across as that guy is from New York. Look at the way he is dressed.

Noah Bolmer: Right.

Dr. David Williams: Be respectful. But do not overdress to the point that you are an expert for hire, because that is what they will say. They will insinuate that because of the way you dress. They do not say nasty things, but “Oh, that is a nice suit. Did you get that from Brooks Brothers?”

Noah Bolmer: One thing I would like to ask you before we wrap up. There are two types of expert witnesses. There are ones that are primarily engaged in consulting. Consulting witnesses are not going to take the stand and are not going to be cross-examined. Then, there are testifying witnesses. You have done both. Do you have a preference?

Dr. David Williams: Many people do not realize that there is a difference between a consulting expert and a testifying expert. The main thing is that you must imagine that the testifying expert, which I have done most of the time, is testifying on all my emails and scribbles. They are all discoverable. As a consulting expert, my work is not discoverable. That information is privileged to my side or my attorneys. I can be free with my discussions, and correspondence and not have to knock off the back and forth of ideas. I have had it, but I make sure that all confidentiality is preserved regardless of whether you are the testifying or consulting expert. You do not know what may be harmful to your case, because you may have it thrown out. That is a hypothesis and find out that is not a good hypothesis. You must keep everything under a confidentiality agreement. I have had it where the testifying expert was not able to testify because of her illness. Guess who had to become the testifying expert. They had to get someone able to talk about it, Otherwise, they would not have had somebody able to talk about it. They amended their motion that say I was now the testifying expert instead of just our consulting expert. You must be prepared.

Noah Bolmer: Do you have any last advice before we wrap up either for newer expert witnesses or for attorneys who work with expert witnesses?

Dr. David Williams: It is not going to be the same as a consulting engineer. For instance, I have had cases drag out for two or three years. You would not hear from your attorney for three months to six months. Then they come out and say we need something next week. You are trying to remember what the heck I did in that case. That is tough to do. It is stressful because you cannot do a regular walk to a regular project. You need to tiptoe your way through and be careful of who you talk to. I cannot talk to my wife about stuff. You are not supposed to discuss it with your girlfriend, your colleague, or your pastor or minister. You cannot talk to anybody about your case. You must understand that. Sometimes it festers inside you, and you want to get it out. You want to say, “Hey, I am working on this thing, and it is high visibility stuff.: So, be aware of the stress. As I pointed out earlier, before we talked, I had a friend that got into it. He thought he was going to make a ton of money doing an expert witness. He had a quote within a year because he could not handle the stress. Six months into the case, he had lost all his hair, broken out in hives, and had heart palpitations. All those things were because he could not handle the stress. The stress of hurrying up and waiting, like when I was in the army. Also, be a thick-skinned person. Those are are my “Pearls of Wisdom.”

Noah Bolmer: Sage advice. Thank you, Dr. Williams, for joining me today.

Dr. David Williams: Thank you for having me, Noah.

Dr. David Williams, PhD, PE, CFM, PH, CPESC, BC.WRE, F.ASCE

Dr. David Williams, is the owner of David T. Williams and Associates, a water resources consulting firm. He holds professional engineering licenses in eleven states and certifications in hydrology, floodplain management, erosions, and sediment control, among many others. He has authored over 100 technical papers and has over forty years of experience as a consulting and testifying expert witness. Dr. Williams holds a Ph.D. from Colorado State University.