In this episode…

According to Mr. Erik Groothuis, arbitration can be better than trials for presenting expert witness testimony. Party agreements, reports and even depositions can be skipped in favor of a more streamlined, direct approach as arbitrators can make real-time determinations without the need for delays and additional hearings.

Check out the entire episode for our discussion on the intangibles attorneys look for in experts, non-refundable retainers, and compartmentalizing being an attorney when working as an expert witness.

 

Note:  Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Erik Groothuis, Commercial Litigation Attorney and Arbitrator

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and today I’m excited to welcome Erik Groothuis to the show. Mr. Groothuis is a commercial litigation attorney and an expert on New York contract law and professional malpractice, among other things. Additionally, he’s an arbitrator for the American Arbitration Association and holds a JD from Harvard. Mr. Groothuis, thank you for joining me on Engaging Experts.

Erik Groothuis: Thank you. Thanks for having me.

Noah Bolmer: You’ve been an attorney for over 2 decades. How did you first become involved in expert witnessing work?

Erik Groothuis: My journey to the expert side has been recent, I would say, over the past five years or so. After a couple of decades of fighting in the trenches, doing the nuts and bolts of it, I decided I wanted to try a different path. I did that in two ways. One, as you noted, by becoming an arbitrator and secondly, becoming an expert where I’m one level removed from the hand-to-hand combat.

Noah Bolmer: In your practice, have you used a lot of expert witnesses?

Erik Groothuis: For sure. That’s what led me to Round Table Group. As a consumer, I had been using their experts. That’s what got me thinking it would be interesting to see what it would be like from the other side. I’ve enjoyed being on the other side as much as I do in litigation and working with experts as counsel.

Noah Bolmer: You [mentioned] Round Table Group. Have you found in general that expert witness referral agencies are helpful?

Erik Groothuis: Very much so. Typically, at least in my firm, when we’re looking for experts, the first inquiry goes internally to all the attorneys, “Does anybody know a good expert in this area?” Oftentimes that will get the job done because we have some experts that we’ve used over the years. Many times, cases are far more specialized than what we’ve done in-house. I have found outfits like Round Table Group to be helpful for you getting the expertise at a granular level which often we can’t find through our own word of mouth.

Noah Bolmer: Let’s compare and contrast a bit. I [haven’t] interviewed many attorneys who are also experts. Let’s talk a bit about an attorney putting on an expert witness hat. At the beginning, you get a call, how do you vet them and how do they vet you?

Erik Groothuis: As for my vetting of them, first, I make sure the subject matter is something I have expertise in. Typically, that would have already been covered otherwise [they] wouldn’t be speaking to me but also from the initial conference it’s an opinion that I’m comfortable giving, which is not always the case. Sometimes they’re looking for somebody to say something that’s not my understanding of the way the law is practiced or the way that New York law speaks to issues. That’s what it would be like, from my perspective. On the other side, having done it much longer this is something I’m more comfortable with. First, they’re looking for an expert that has subject matter expertise but is also able to present themselves effectively both in deposition and in court. Somebody they can work with and that they can rely on to meet deadlines. All of which I’m familiar with from having done it as litigation counsel.

Noah Bolmer: Let’s talk about some of those intangibles. How do you know from that initial phone call that not only do they know the subject matter, that’s trivial, but they’re going to make a great expert witness in a deposition, at trial during cross examination, or in front of the judge during a bench trial? How do you suss that out during your initial call and what can expert witnesses do to prepare themselves so that they have a great first impression with an engaging attorney?

Erik Groothuis: That’s a great question. It’s more art than science. Some of the things that I look for when I’m looking to engage an expert is I don’t want them to have only been doing one side of the coin. For example, to give an example, in securities litigation there are damage experts that do the plaintiff side the way that plaintiffs like to calculate their damages. There are experts that work on the defense side. [They] get pigeonholed to be a plaintiff side expert or defense side expert, and you will be subject to cross examination for always taking one side of a coin. I’ve been on both sides in my own practice. I’ve litigated legal and accounting malpractice claims on the plaintiff as well as on the defense side. That’s something that I look at to make sure that we’re not going to give away an easy line of examination on whether it’s at the deposition or cross that you’re a hired gun or one constituency. That is one area and then otherwise it’s about storytelling at the end of the day. Yes, you [must] have the chops, and the expertise, but you also, as the cliche goes, [must] be able to explain it to your grandmother or to your 8-year-old. You have to be able to understand and explain it in a way that somebody who’s not an expert can understand.

It’s amazing to me how many people who have subject matter expertise but can’t get out of their own way in terms of how they explain it. That’s important, particularly for a jury trial. Less so for a bench trial. For juries, you need someone who can explain these things. Charisma would be a bonus if you could get it. Those are the things you could, as you say, suss out the storytelling and connecting aspect of it.

Noah Bolmer: You mentioned the plaintiff-defendant mix. How can a newer expert witness achieve that when most of the time they’re getting phone calls or working with the referral agency, and they’re not necessarily the master of who’s going to call them? If a bunch of plaintiffs call them, should they consider not accepting all of them and trying [for] a little balance? Is that something they need to actively manage?

Erik Groothuis: It’s a luxury to be able to manage that at the beginning. You have to take what you can get. At least you can build a critical mass of engagements because one of the other early questions you get is how many times have you been deposed? How many times have you testified in court? That’s even more important than which side you’ve been on. Once you’ve covered that initial hurdle, you’ve got a critical mass of cases under your belt. You could try to be a little more selective so that you can work on both sides. There are cases where it’s not clear if the plaintiff and the defendant- in many cases that I’m involved in there are counterclaims and crossclaims so one side is the plaintiff, but everyone is suing each other over things. As you get more seasoned in your expert career, you can be more selective and make sure that you’ve worked on both sides. You also need to be careful that you don’t say anything inconsistent with an opinion you’ve already given. How that applies to me is I’ve made arguments as an advocate, and I must be mindful that I’m not saying something as an expert that might be inconsistent with that position in the current case, but for prior cases too.

Noah Bolmer: Speaking of saying something that might be inconsistent, you’ve been doing this for a hot minute. How do you keep track of everything you’ve ever said to make sure that you don’t accidentally contradict yourself? For that matter, what if you change your mind? What’s the best way to approach when you are being impeached, either in a deposition or on the stand about an opinion that you made publicly at some point in your career?

Erik Groothuis: This comes up often for us. My firm has a blog called The Commercial Division Blog where we write up cases that come out of the commercial division, which is a special section of the New York State courts that models itself after federal practice. Many times, we write briefs or make arguments, and our adversaries will point out, “In this blog post you said the law was X, Y, Z, and now you’re saying something different.” It’s something we’re sensitive to for that reason. As an advocate, there is a difference if it’s a colorable argument. I have to make some arguments that may not be squarely within the bounds of existing law. You do the best you can with the facts you’re given. That’s a different exercise and what you do as an expert, which is, here’s my assessment of what the current state of the law is, and here’s how I think the highest court in New York would rule on this issue. You [must] be more objective and truer to the confines of the law as an expert, as you would be as an advocate, where everyone understands. You have to make your arguments because you have one side that you need to take.

Noah Bolmer: Let’s talk engagement letters. Are there terms that you, as an expert witness, put in to ensure that you’re going to get paid? For instance, with a lot of cases moving towards settlement, do you have a non-refundable retainer? Do you like to do project rates or hourly rates? What is your billing scheme like? As an attorney, what do you like to see from an expert witness in terms of a billing scheme?

Erik Groothuis: Taking the second part first, when I’m the attorney, I want to make sure I’m protecting my client, so I would typically push against non-refundable retainers, and if the client, as some clients are, more cost sensitive or they want more cost certainty, we might look to fixed or phased fee engagements to make sure that there’s not going to be any surprises. Something that I also have to do as an attorney is my firm has a policy for an engagement letter for an expert, the client ultimately is responsible for the experts fees so that the firm never becomes engaged where the expert might be looking to the firm as opposed to our underlying client. That’s not something that are always in the templates that we get from experts, but we have to ensure that it’s in there as a risk management issue for the firm.

As an expert, I don’t ask for non-refundable retainers. You should be paid for the work that you do and you shouldn’t be paid for work that’s undone. This happens from time to time. There are cases where I’m engaged and the case settles or otherwise goes away. Whatever’s unused gets sent back to the client. It’s less of an issue when you work with expert retainer firms like Round Table Group, where they work on the back end for the financial aspect of it. Our general policy is we work hourly arrangements. Obviously, as an expert, you’re not doing any sort of contingent fee type situation, but for clients that are interested in this kind of arrangement, we would consider phased fee or fixed rate engagements as well.

Noah Bolmer: One of the things that- well, one of the things that I have heard from expert witnesses, especially those at the top of their field they’re well known, is that simply the act of engaging them might drive a case towards settlement, or toward a positive settlement. They feel that some compensation is due when you’re retained for that purpose. Is that something that you’ve ever run against?

Erik Groothuis: I have not heard that. That must be a nice place to be where you could say “I’m worth so much that just having my name on the file is good enough and is going to drive your settlement.” Obviously, there are some experts that are more well known and more impressive I guess than others. I have not personally seen an expert that- I certainly have had experts who will say, “If I’m going to take on this project, I’m going to have to hire a team and devote 3 months of my life to putting this together. If it settles in a week I’ve now moved all the pieces around.” We will consider, although typically push against the notion that you should get a non-refundable retainer, but I haven’t heard it based on their prestige or the effect that they might have on the other side.

Noah Bolmer: Let’s talk a little about technology. [Many] actions are moving towards Zoom and other telepresence methods. How has that affected your practice and how does that affect the way that you connect with a jury, a judge, or any other parties during a hearing?

Erik Groothuis: I would give a different answer today than I would have given you before COVID. Before COVID, like [many] lawyers would say, “I need to be in the room. I need to look the witness in the eye. I need to read the body language.” In the early days of COVID, the summer of 2020, I had an arbitration, that was thirty hearing days where it was just myself, my partner, and the client in our offices. The office was a ghost town. We did the entire arbitration virtually. The arbitrator was someplace. Our adversary was in a different place, and their client was in another place. Once you got used to the rhythm of the virtual proceedings, it worked smoothly. For example, breaks. We’d say it’s 3:15. Let’s all come back at 3:25 and because you got to sign in on the video, it made the day go smoother. Clearing the exhibits is also a little easier than passing papers around and this notion about reading body language and all that is a bit overrated. Most of the depositions that I take or defend now are happening virtually even when they’re here in New York where I’m physically located. Lawyers have realized that it’s cheaper and more efficient, especially for court appearances.

This may be a little off topic for experts, but a typical case conference where there’s a calendar call, you go to the courtroom, there are like twenty-five cases and you have to sit there for an hour and a half waiting for your case to be called. That’s by and large not happening anymore. I sign in for a court call conference at 3:30, and they call us by 3:45, and we’re on to the next one. All the travel and waiting time has gone by the wayside. For me, it’s been a good thing. I have not done a jury trial since COVID, and those, by and large are happening in person. As people get more and more used to Zoom, I know there was Zoom fatigue for a while, but in my practice at least in commercial litigation, after the hump of COVID, the majority trends is everything’s happening virtually, if it can be done that way.

Noah Bolmer: Are there ever hybrid situations where some of the parties are physically in court and some of them are remote? If so, how does that affect the flow of everything?

Erik Groothuis: I have done situations where the witness is elsewhere. Typically, if you’re defending a witness, you’re going to want to be in the same location, if you can, because it makes it easier. Sometimes you don’t have a choice and you have to get on the phone and call them during breaks and make sure that the mute is on. It mixes and matches. If some combination of people are in the same city and the preference is to get them together. One person, an arbitrator or an expert witness is elsewhere; you can make it work. Court reporters tend to prefer to be physically in the room with the witness, if there is a physical happening but like I said, this arbitration that I did, the court reporter was virtual too. Everyone’s has gotten used to the different permutations of it, and it works smoother than you would expect.

Noah Bolmer: As an arbitrator involved in alternative dispute resolution, and that’s something that expert witnesses do get used for from time to time. What can an expert witness expect going into mediation or arbitration? And how is it different than a typical court action?

Erik Groothuis: The idea of arbitration is that it’s supposed to be more streamlined and more efficient than court proceedings where there will be depositions. There will be disclosures. There will be expert reports and if there’s disputes, you got to tee these things up in front of a judge. That’s in the court context. In an arbitration, it’s all done by party agreement, so you don’t necessarily need to have expert reports. You don’t necessarily need to have depositions. If there are disputes around what an expert should or shouldn’t disclose or whether the opinions they’re expressing at a hearing are permissible given what they’ve expressed in writing. You have an arbitrator right there who’s incentivized in real time to make those determinations and good arbitrators understand that the premise of arbitration is to make it less expensive, less time-consuming, and more efficient for the parties. They try to cut through a lot of the stuff that you see in court where judges and their clerks don’t have the time, patience, or attention to give to disputes. If done properly, arbitration can be a better way to present expert testimony. There are arbitrators unfortunately, like in any other profession, that take advantage. The longer cases go on, the more they get paid. I’ve seen cases that go off the rails the other way where it turns into a whole sideshow, and the arbitrator is a full employment act for them. I like to think that’s the exception. When I’m an arbitrator, I try to hue to the spirit of arbitration, which is to keep things tight and to keep a leash on the parties. Because from being on both sides, where I’m stalling or where I’m pushing, I know what lawyers try to do to get away with things.

Noah Bolmer: How do you take off one hat and put on the other? Especially going from attorney to expert witness. You get called up and you’re an expert in a case. How do you disconnect the attorney side and let the engaging attorney take the reins without offering a lot of legal advice and wanting to jump in as an attorney?

Erik Groothuis: That was probably the biggest challenge for me when I first got started as an expert. I’d read the case file and I have all these ideas. Have you thought about this? Have you thought about that? Then I realized, that’s not my role here. I’m not being hired as co-counsel or shadow counsel. They want me to  give them a certain set of opinions, if I’m able to do it. I had to restrain myself from being an advocate and, as I said earlier, it’s a different hat. It’s not making any argument that you can think of and you’ve got five arguments and your number one is the best and five is the weakest. You have to look at the law, and as the person who’s going to be testifying, your name, your signature is behind your opinions and you’re the one who’s going to be cross-examined on them. Anybody can make an argument but once you’re a testifier or even somebody who’s signing an opinion, you’re the one who’s putting your name and reputation behind them. I have found that I like to let the lawyers take the lead. If they ask for my opinions, I’m happy to offer them, but I don’t offer them unsolicited. I try to figure out what it is they want and then I determine whether I can give it to them and what’s the best way to do that.

Noah Bolmer: Is the other side likely to try and impeach you on that? Do they say, “You’re acting as an attorney, aren’t you an attorney also?” Is that something that you have to contend with on the stand sometimes?

Erik Groothuis: A little. Although in the cases where I’ve been retained as a test fire, it’s been in the legal malpractice context, and so at least in every case that I’ve been involved with, the expert on the other side is also a practicing lawyer. It’s mutually assured destruction. Whatever they’re going to say about me could just as easily be applied to them. So, I don’t see much of that argument. You’re just trying to be a hired gun and make whatever arguments you can.

Noah Bolmer: Let’s talk about preparation a little. Do you have a pre-trial, pre-deposition, pre-going to court routine? I’ve had people say they do yoga and drink thirty-seven cups of coffee or fast before. What is your pre- trial ritual routine? How do you get yourself ready to go?

Erik Groothuis: I would say I don’t try to do anything special. I know when I’m sitting in a chair all day, whether I’m taking a deposition, defending a deposition, or testifying myself, even though you’d think, “Gee, you’re just sitting in a chair, what could be less taxing?” I find that I’m exhausted at the end of the day. I guess the brain uses up a lot of energy and calories. What I’ll try to do myself to clear my head is I’ll do like- I’ll go to the gym in the morning even if I have to get up super early and that gets whatever juices flowing and gets me ready for the day. I try to keep hydrated and other than that, I don’t have any kind of like- I’m not listening to Rocky on the way in or doing yoga to calm myself down. I mean, I’m comfortable in these scenarios from having taken so many depositions, including expert depositions over the years. Certainly, it’s a different exercise when you’re testifying, but in terms of the physical preparation or rituals, it’s the same sort of drill.

Noah Bolmer: How about preparation in general and getting ready to go? Do you like to review your expert witness report? Do you like to review files? Do you as an attorney like to put expert witnesses in mock cross or anything like that? What are some of the expert witness preparation methods that you like?

Erik Groothuis: I would say all of the above. When I’m an expert for sure I’m going point for point through everything I’ve said in my report. Everything that the opposing expert has said in their report and also all the exhibits and I’ll typically mark them up on the deposition transcripts so I know what’s most important. I’ll go back through those to refresh my memory on the most important testimony, key admissions, and things like that. When I’m defending or­­ when I’m defending an expert, I will definitely put them through a mock cross examination. The idea being like whatever I’m going to do to you right now should be worse than whatever you’re going to get tomorrow at the deposition itself. Sometimes you have to be aggressive and bully the witness a little bit to see how they react under different stresses. If I’ve done my job right, I’ve gone through about all the documents they’re probably going to see. Most of the subject matter they’re going to get covered and treated them worse than they’re going to get treated during the actual deposition. Many of them know the drill already, but for some it’s their first time and they can be nervous so extra prep is a requirement in those situations.

Noah Bolmer: From an expert perspective, how do you contend with going into a new venue that you’ve never worked in before? Maybe that’s a new state. Maybe it’s your first tort instead of a criminal action. Is that something you need to work on with your attorney? Do you, as an expert need to understand the law, or can you be confident in your expertise, opine and not worry too much about venue.

Erik Groothuis: It’s the latter. I had a case a few years ago where I was retained as an expert for a case in Iowa State Court. I’m not an Iowa barred lawyer. I don’t know the first thing about Iowa law, and I was upfront  with the lawyers who retained me about that fact. As it so happened, the case involved an M&A transaction, so it was more about what is expected of lawyers in M&A transactions that didn’t turn on the particular issues of Iowa law. To an extent there were rules of professional conduct that applied. The rules were the same in Iowa as they were in New York. I tried to stay in my lane. I’m certainly not going to give expert opinions on another state’s law, but when I’m in an unfamiliar venue like that. I have to make sure that I’m talking about the things that I know and that got me there. If there are areas where I’m not comfortable or I feel like they’re outside the scope of my expertise, I try to be upfront with counsel about it. In that particular case, they were well aware that I was a New York lawyer and there were reasons why they wanted that in this case and so as long as you’re upfront and stay in your lane, I’ve found that’s the best way to navigate that.

Noah Bolmer: Let’s shift gears to a couple of general questions. How do you as an expert get off on the right foot with an attorney or more broadly, what makes for a great relationship between the expert witness and the attorney?

Erik Groothuis: Whether I’m the attorney or whether I’m the expert, you have to be sort of- you don’t treat it like a formal meeting. It should just be a conversation like this one. This is somebody you’re going to be working with for an intense and probably stressful period. You want to convey that you’ll be a good person to work with. You’re going to be reliable and you’re going to meet deadlines, but also you can flesh your skills, as needed. It’s a bit of selling but also it’s more like I’ve been where you are. In fact that’s my day job, so I know what you’re looking for and here’s why I think I’m the right person to offer that set of particular skills.

Noah Bolmer: Are there any red flags that you look out for during the course of the engagement?

Erik Groothuis: Yes, falling behind on payments would be one red flag. There are others where maybe it would be a little overdramatic to call it a bait and switch, but you’re presented with a certain set of facts and asked for a certain opinion. Then when you get involved, you realize what they’re looking for is something that’s beyond the scope of what was talked about. Maybe it’s an area that you’re not comfortable wading into. That’s happened to me once or twice where I’ve had to say, “I’m sorry. I can say ‘A, B, and C’ and you want me to say ‘D, E, & F?’ We didn’t talk about that and I can’t do it.” Most of the time the lawyers understand it’s their job to ask and it’s my job to say yes or no. That’s typically how that would shake out.

Noah Bolmer: Why are expert witnesses important? Why is the work that we do as expert witnesses, significant and valuable to jurisprudence broadly?

Erik Groothuis: Legally, doctrinally, the function of an expert is to explain things to a finder of fact, typically a jury, but sometimes a judge, that are beyond the scope of a layperson’s knowledge. As a practical matter, I take depositions all the time, and ninety plus percent of the answers I get from fact witness is “I don’t know.” Or “I don’t remember.” You’re asking them stuff about that happened two, three, four or five years ago. Sometimes more than that. Like, “I couldn’t even tell you what I had for breakfast.” It’s typically not that helpful to examine fact witnesses. Obviously, you take their deposition so that when they show up on the stand at trial and they have this perfect recall, you can pull out the transcript and teach.

An expert, a good expert, can tie the whole story together in ways that fact witnesses are often unable to do because they’re successful businesspeople who are not used to being told no, or you have to do it this way. They’re non-parties who are not that invested and don’t care or don’t remember. The expert has to remember- has to know all the facts. They can’t say “I don’t know.” Or “I don’t recall.” They can be typically effective witnesses and when I’ve been on trial, sometimes I’ll use the expert as the first witness to sort of set the stage. Here’s what this case is going to be about and it’s fairly technical. It’s some securities transaction that you might not understand. My experience is that many times the experts can be, if not the most, among the most important witnesses at the trial other than maybe the principal on each side. They’re there at least ostensibly to help the jury understand something, and they’re not- they don’t necessarily have a vested interest in the way that the parties do.

Noah Bolmer: Do you have a case or two that you can talk about that either changed something about the way you go about expert witnessing or reinforced something that you already do? What are the pivotal moments that you’ve had throughout your career as an expert witness?

Erik Groothuis: That’s a good question. I have to give that some thought. The most recent one I had was supposed to go to trial in New Jersey and the case settled, as they often do, right before trial, but I found that the expert on the other side had experience and credentials that were similar to mine. We were mirror images of each other. I understood what he was saying and he understood what I was saying. We never had the occasion to meet, but through reading the reports, you could see we were going down the same path. It would have been interesting to see at trial giving our lawyer my thoughts on his opinion and vice versa. I would have liked to see how that played out. It can be frustrating. You put so much work into things and so many cases settle because jury trials are so unpredictable and parties like the certainty of a settlement. Many of them wind up going away. I guess I’m used to that from being an advocate, but I was looking forward to doing this particular trial because it seemed it was an interesting set of legal issues. And like I said, the expert on the other side was similar to me I thought, but it wasn’t meant to be.

Noah Bolmer: Before we wrap up. do you have any last advice for expert witnesses? Especially newer expert witnesses, or even attorneys that are working with them.

Erik Groothuis: I would say for experts it’s more important how they present themselves than whether they have the subject matter. There are [many] people that could speak intelligently on this subject matter, whatever it is that you have. The rare or the more rare skill is the ability to communicate the expertise in a way that’s understandable. Going back to what we talked about before. Lawyers have a good sense of how witnesses present and how experts present. That for me is the most important thing, and I’ll almost sometimes sacrifice the subject matter expertise and deal with those issues on cross examination because an experienced, seasoned expert, can know how to parry those questions. I’d rather have somebody who knows ninety percent of the subject matter, but can handle themselves in a deposition or a court than somebody who knows everything cold but can’t explain it or gets flustered when they’re put on the spot. [They] try to give up the farm or maybe not, but inadvertently gives up the farm because don’t know what else to do.

Noah Bolmer: Sage advice. Mr. Groothuis, thank you for joining me today.

Erik Groothuis: It’s been my pleasure. Thank you for having me.

Noah Bolmer: And as always, thank you to our listeners for joining us for another edition of Engaging Experts. Cheers.

Erik Groothuis, Commercial Litigator and Expert Witness

Erik Groothuis is a commercial litigation attorney and an expert on New York contract law and professional malpractice. Mr. Groothuis is an arbitrator for the American Arbitration Association and holds a JD from Harvard.