Note:   Transcript has been lightly edited for clarity

Host:   Noah Bolmer, Round Table Group

Guest: Mr. Mark Elmendorf, Principal Scientist, Roux Associates

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and today I’m excited to welcome Mark Elmendorf to the show. Mr. Elmendorf is principal at Roux Associates, an environmental consulting and management firm. He is an expert in regulatory analysis, risk management, and hazardous materials, and a whole lot more. Mr. Elmendorf is a sought-after public speaker and expert witness. Mr. Elmendorf, thank you so much for joining me here today on Engaging Experts.

Mark Elmendorf: Well, thank you for having me. I’m excited.

Noah Bolmer: Let’s jump into it. So, you’ve been in environmental consulting for nearly 40 years, it looks like. How did you first become involved in expert witnessing?

Mark Elmendorf: I had been doing consulting for a while, and I was working with a couple of attorneys who had cases I was working on with them, doing some expert reports. And two of their cases actually were going to go to trial. So, they asked me to testify and spent a couple of weeks getting prepped, meeting with them, and testified. And both cases turned out quite well for them. There was an insurance carrier involved, and they were very happy with the work. I just really enjoyed doing it. It was something different. You really got to use your expertise and the matter of that at the end. It was enjoyable working with the attorneys and seeing the strategy they were using to try to get their side of the story across as strongly as possible. A little nervous the first time you actually go to court and you’re up there and it’s very formal. And when you’re testifying, I’ve always found that part of it easy, because I’m prepared. I know exactly what I’m going to say, not exactly, but pretty close. Cross examination, that’s the part where a little more stress, because you really don’t know what they’re going to say. I was told by an old attorney early in the game, yes or no is the best response for cross-examination questions. Don’t offer anything, just yes or no, and stick with it.

Noah Bolmer: It’s interesting. I’ve had so many experts come on that have been doing it for a very long time, but very rarely, if ever, have been in an actual court setting because so many of these go to settlement. So, it’s interesting that your very first shot, you were already right in there, right in court.

Mark Elmendorf: I think in our field, and I know you do a lot of different areas, of course, the expert witness realm, but in the environmental business, I think a very large percentage of the cases have insurance coverage. So, you have an insurance carrier that’s in there saying it’s going to cost us this much to go to trial. Let’s start offering incremental amounts going up and up and see if we can settle this out and avoid going to trial. And that’s why so many of the cases settle.

Noah Bolmer: Right, right, exactly. And that’s true in a lot of different industries. Let’s talk a little bit about initial phone calls. So, you get a call out of the blue, somebody needs somebody with your particular brand of expertise. How do they vet you to make sure that you are the correct expert for the job? And how do you vet them to make sure that it’s an engagement that you are the right person for and have time for?

Mark Elmendorf: Well, usually they’ll ask for a CV and an interview, and then they’ll ask you to provide very specific experience examples. I just started a case out in California that involves gasoline exposure, and they wanted me to provide them with example cases and projects that dealt with very specifically tank systems, gasoline, BTEX contamination, air exposure, that type of thing. So, I wrote up about 10 different cases, background information, and sent it out to them with my CV. And then we had an interview that lasted probably about 45 minutes. Then they asked me to go through some of the cases. I always ask a lot of questions because I want to make sure there’s nothing it’s not going to be a big surprise once I say, yeah, okay, I’m ready to go with this. I want to know all the parties involved, whatever information I have to describe to me exactly what the case is about. How many people are involved, how many plaintiffs involved, what are they claiming? Property damage, is it health damage, is it contractor problems, whatever, just so you really kind of understand. We do a conflict check on all the parties right off the bat before we commit anything. Make sure, and you’d be surprised, we’re a decent-sized firm. We represent a lot of the bigger corporations out there. So, there’s probably 10–20% of my cases I have to turn down because we have a conflict.

Noah Bolmer: Oh, no kidding, that happens a lot for you, huh?

Mark Elmendorf: Yeah. And we have a bunch of nationwide contracts with some of the bigger corporations. Just to be on the safe side, if they’re involved in any way. I hate to do it, but I usually turn it down.

Noah Bolmer: Sure.

Mark Elmendorf: Once in a while I try to get around it one way or another. But I find you start to open up the door to problems. I say, ah, we’ll put up a firewall, and we won’t talk to people or whatever. But you’re still on the other side of that company and it could come back to bite you.

Noah Bolmer: And of course, the attorney doesn’t want a conflicted expert any more than you want to be part of a conflicted action because it can remove their best expert from the action.

Mark Elmendorf: It could complicate cross because if they wanted to, they could twist that somehow, that’s your involvement with one of the plaintiffs. You wouldn’t look good, just if it was a jury trial. And sometimes there’s multiple people working on these projects, and we’re all going to be on the same page with what we’re going to do.

Noah Bolmer: Absolutely. Well, let’s talk a little bit about trial teams. So, in larger actions, a lot of the time, it’s not just one expert witness and it’s not just one attorney. There’s a whole team of people playing together, sometimes apart. To what extent do you work with the entirety of the trial team? Do you work in any way, shape, or form with the other expert witnesses? Do you work with a multitude of attorneys, paralegals, assistants, and so forth? Tell me a little bit about the makeup of the trial team.

Mark Elmendorf: Most of the time, there’s several attorneys involved. There’ll be an associate attorney or paralegal, somebody else that’s kind of the day-to-day providing documents, getting questions. There have been times where I’ve interfaced with other experts. The focus of that has always been not necessarily exchanging documents but having conversations to understand where each of us was going to make sure we weren’t going to contradict each other. A common point that we were going to get to, make sure we’re all on the same page, so it looks good. You don’t want one person saying this, another person saying that five minutes later.

Noah Bolmer: Is that something that your attorney sets up or that you do?

Mark Elmendorf: Yeah, the attorneys would handle getting that in place.

Noah Bolmer: And I assume that whenever you’re talking to another expert, there’s an attorney present.

Mark Elmendorf: No, not always. They’re pretty open with that. When we do expert reports, which is really a big part of what I do on those cases. I think following the legal credo, they’re not supposed to comment on your expert report, not supposed to give you guidance. We’ll exchange ideas and stuff. You want everybody to be happy with the focus of what the arguments are going to be. Everybody’s making those arguments in their documents. The attorneys are filing motions, you’ve got your reports. You might have rebuttal reports once the other side comes back and complains about your report, talks about how stupid you are, and how much of a moron you are, and you don’t know what you’re talking about. And it’s good to share. Let me put it that way. You’ve got an idea of what everybody’s doing.

Noah Bolmer: Tell me a little bit about your report writing strategy. How do you go about starting a report? Do you like to use demonstratives? Do you like to use indexes?

Mark Elmendorf: I have a real organized way that I do it. I’m very good at expert reports. I’ve always gotten very good reviews on my expert reports. I start with an outline, and I know the front end of my report is going to be background information, and that’s easy. And so, what I do is I start with I make an outline and I start by deciding what my opinion points are going to be. I might end up with five or six or seven or eight points that I’m going to make. Opinion one, plaintiff failed to do A, B, and C. And then I go to the next one and I get that because I don’t want to have duplicate arguments in the expert report. I want to separate the issues as much as possible into a fine-tuned argument. So, each opinion is very unique and covers one important topic. If it’s say I worked on a big PCB case a couple of years ago up in New England, and I broke it down into failure to review relevant information, misinterpretation of sampling results, I broke it down into topics, and that reads well because then it’s okay. They’re going to have to come back and they’re going to have to address each of those points separately, not merging everything together and blending everything. It’s very specific topics. And then each of those topics will have reference material, background information, maybe other documents that the plaintiff has provided or documents that we’ve found as an attachment, an analysis if necessary that we’ve done on something, because it’s costing information. We’ll do a cost analysis and put that summary right in there. So, it’s right up front and center. I did a fracking case that should have been a $30,000, $40,000 claim, and it turned into a three million claim. And a lot of that argument was based on failure to operate their site properly. I went through every piece of equipment, every dike, every containment system, everything, every single individual item, and said, this is what the industry standards, the state regulations required, this was what they had, this is why it was inadequate, this is why it was inappropriate, and it went on. So, if they found a strong argument for one of those items, it was 40 items, they’re never going to walk away from all of it. To wrap it up, after all the different opinions, I did an analysis that said, look, if they had been operating the site properly, this is what would have happened. A, B, and C. The cleanup cost for that would have been $40,000. And they were trying to subrogate against other parties to recoup that three million. And they didn’t have a good argument.

Noah Bolmer: It sounds like you write your reports in anticipation of their rebuttal.

Mark Elmendorf: Oh, yeah. Absolutely. Yeah, you have to do that. That’s something different. I did a criminal case a few years back that I thought was very interesting. Two small business owners were being sued by the EPA and charged with criminal violations. I did a report, but that really wasn’t the main focus. The main focus of that case was being in the courtroom every day for four weeks and giving my team of attorneys as much advice as I could on how to cross-examine the EPA’s witnesses. And that went really well because the EPA’s witnesses were not strong. One of their witnesses was so bad, the judge offered to call a mistrial because the witness was just that bad in contradicting himself and putting information on the table, he shouldn’t have been putting on the table. But that’s another example of how we can help. They retained me. I went and I sat in the back of the courtroom every day. And at the end of the day, we would get together for a couple hours, review the testimony, and come up with a list of cross-examination questions for them to go and attack the witness. But again, their witnesses were terrible. And it looked good for us because at the end of the day, they were found innocent of all charges. It was great.

Noah Bolmer: What’s your rebuttal strategy when you’re writing a rebuttal report against somebody else? Do you find that the opposing reports are usually as well organized as your own?

Mark Elmendorf: Too many of these people, and I would never say this to somebody’s face. I find a lot of the expert witnesses put in way too much background information. That PCB case, the first rebuttal report I got back was probably 80–90 pages. And I have to say, probably 75 of those pages were just background information. Studies he quoted, EPA documents he quoted, just paraphrasing. It had nothing to do with the case. And he starts it out by on the first page basically saying, “Well, this guy’s a moron, doesn’t even know what he’s talking about.” But stick with the facts. I would never issue a rebuttal report and say, “Okay, this other expert’s a moron.” Which happens more than you think with these people. It diminishes your credibility right off the bat that you’re not sticking to the case and the facts. If you have an argument to make that you’re right and I’m wrong, make that argument and explain why. What are the facts? [. . . .] do this under this regulation. Is that wrong? Well, if it is, explain why. Quote the regulation. Is it a definition misinterpretation? Is it something like that? Put something on the table that makes sense, not just “I disagree with you.”

Noah Bolmer: As somebody who’s been doing this for a while, have you seen any significant changes in expert witnessing in general? Has technology changed? Has timing changed?

Mark Elmendorf: I’m old, so you want to look around at technology changing. I think it takes you back to fax machines, couriers, and FedEx, binding your own documents in the back room, nine o’clock at night, to make FedEx before they close. The young kids today have no idea what any of that’s about. PDF and email something. It used to be run to FedEx by eight o’clock to make sure you got the package out to the next state so the lawyer’s happy. I tend to think over the last 10–15 years or so the insurance carriers have gotten much more aggressive with wanting to settle cases. And I don’t know if that’s really a cost function, policy function, whatever, but the bigger carriers, and we work for pretty much every insurance carrier out there, they really just don’t want to go to trial. And maybe because there’s been some unfortunate bad outcomes when they do go to trial. So, they just decided that if we can avoid it, let’s pay a few bucks.

Noah Bolmer: Does the move towards settlements affect you as an expert witness, your ability to work and make money? Because obviously it can potentially make more money than if it settles rather quickly. So, how has that affected your business?

Mark Elmendorf: Yeah, we leave a lot of money on the table when these cases settle. Because you just get that phone call all of a sudden, yeah, we settled and stop working. So, you might have another six months’ worth of work on that case if it was going to trial.

Noah Bolmer: Do your contracts anticipate that at all with non-refundable retainers, ways to make that up a little bit on the front end?

Mark Elmendorf: I think everyone kind of does that differently. Again, I’m kind of old school, so I don’t even ask for a retainer most of the time. I probably should, but I don’t. I do a quick one, two-page retainer agreement. I do a flat hourly fee for everything. Some guys have all different rates for expert reports, trial testimony. I used to use this phrase for everything—keep it simple. Expenses plus whatever. I think the attorneys appreciate that. It makes it simpler for them too.

Noah Bolmer: Sure.

Mark Elmendorf: And then I’ll do an estimated not-to-exceed for the different phases of a case if they want it.

Noah Bolmer: Okay.

Mark Elmendorf: The ones I work with a lot don’t even ask for that anymore. They just say, “Get start[ed] reviewing stuff.” It could be some effort sometimes. They send you over a hundred pages of documents, it takes me ten minutes to go through that. They send you over 20,000 pages of documents. A lot of times 90% of that information is worthless, you still have to go through it. And it’s costing information. I can get one of our staff people to summarize it for me to save money.

Noah Bolmer: Sure.

Mark Elmendorf: If somebody sends me three million dollars’ worth of invoices, I’m not going to sit there and go through that. I’ll get one of my staff people to pull all that together in a nice, organized fashion so I can just look at that and understand what we have.

Noah Bolmer: Is the expectation from your engaging attorney that you will look over all materials that are sent, or is that more in case you need it, here it is?

Mark Elmendorf: I think 95% of the time they expect you to look at what they sent you. Because they’re relying on you to pull [it] out if there’s something important in those documents that they’re not catching. And even though they might be an environmental attorney, they may not have the expertise in that particular area. Whether it’s fracking, well drilling, PCB management, air emissions, whatever, they’re looking for you to say, here’s not the magic bullet document, but these ten documents are important. Make sure you understand these. Usually that’s what ends up happening. A large volume of the material is kind of worthless, but there’ll be some good stuff in there that you can use if you’re going to do an expert report.

Noah Bolmer: As somebody who has spent a significant amount of time in courtrooms and underwent cross-examination, what is your preparation strategy? You’re going to go into a potentially contentious situation; you’re going to undergo cross. How do you get ready the day before, the morning before?

Mark Elmendorf: I tend to- I’ll review my report to make sure that I refresh my memory with what I said. They’re certainly going to ask you about that one way or another.

Noah Bolmer: Sure.

Mark Elmendorf: And if there are any other experts or rebuttal reports, I’ll go through those again also. Just so I’m familiar with that. They’ll probably rely on their own expert’s report to try to throw something at you. So, you familiarize yourself with it. You’re not surprised. In the back of your mind, you can start to formulate what your response would be. We say, “Oh, they failed to take this into account” or “they didn’t look at this properly, it should have been this way, it should have been that way” that type of thing.

Or, where you got your information from. We did that criminal case- [it] was ship related. And one of the charges was they drove a piece of mechanical equipment, a bobcat basically, on top of asbestos floor tile. We drove it back and forth. And EPA was charged with a criminal violation for doing that. I knew that wasn’t right, but I couldn’t remember exactly why. So we went back to the hotel that night and I did a little research on my computer, and I found what I was looking for. There was an EPA document that talks about what’s allowed during construction activities. And sure enough, on page 16 or 17, there’s an entire section that says you’re allowed to drive bobcats on top of this tile, no problem. So, I gave that to my attorneys. When they did the cross the next day, they introduced that as evidence. They put it up- they have a criminal crowd; they have these giant screens everywhere. They put it up on one of the screens, and the guy was [on] the stand, “Coud you read that for us? And now, what do you think about this?” That’s where we bring value to the team.

Noah Bolmer: Well, speaking of interesting cases, do you have any other tent poll cases which either changed something about the way that you go about expert witnessing or reinforced something that you were already doing?

Mark Elmendorf: One of my earlier cases was an insurance case. A contractor was accused of contaminating a big mansion on Long Island. I was able to figure out things that had been done before this contractor ever got involved that caused as much of a problem as anything else. They were looking for millions of dollars. They wanted to basically cut this place out. We put all these items on the table to basically say -then they subpoenaed another contractor’s files. They didn’t put them on the stand, but we had their files. I reviewed those files and was able to say, a month before this guy did anything, you hired this team to come in. If anybody contaminated anything, it was these guys. Because this is what they did. It was great. And they settled that night. Then the insurance carrier would have some kind of representative there. And a few days later he called me and said, “Yeah, look, they knew there’s no way they were going to get a favorable- after all this information we put on the table.” So that was good. That kind of taught me, don’t just look at one angle of it. Like really dig. If you think there’s any possibility that there’s additional data you can look at or additional information that you need, dig for it. The answer might be no, it might be a dead ending, not going to do anything, but there could be some good stuff there. You want to make it so it’s not a slam dunk. So, if you can put- maybe there might be an issue here. I think maybe the experts might not agree with you, but I think the attorneys, especially the attorneys that have a lot of trial experience, they know. These “cleaners’ guys” know, ooh, they’re going to start bringing a lot of doubt here, this is not going to be an easy one to win. So, they’ll be more inclined to settle in a favorable fashion to your clients, maybe you take a little less money, make it a little simpler. Each case is different, obviously. We’ve been doing a lot of cost recovery cases. Because everybody wants money, so they’re attractive cases for the attorneys to take. And under the regulations, there’s multiple avenues to bring third-party cost recovery suits. Everybody wants money but they really do- it’s like the subrogation. The way subrogation works, this person’s not giving you enough money, and you’re after that person. And it’s not even that person, it’s that person’s insurance carrier. So, it’s an insurance carrier against insurance carrier. And they all have budgets, and are like, “I’m this high. I’m going to go that high.” Whatever.

Noah Bolmer: Do you primarily represent defendants? Almost exclusively. Is that ever a liability?

Mark Elmendorf: If you testify, usually the first hour is them chewing you up for your background, your education, your life, your mother, the fact that you only represent defendants, what you charge. Roux doesn’t say, “Oh you can’t represent plaintiffs” because we do at times. But most plaintiffs don’t want to pay to hire good experts. And just my personal stance on this, I don’t like working for homeowners and property owners. I would not want to make a living doing that. People just don’t understand, I think, how this whole thing works. And, I’ve had some really wacky plaintiffs come to us, wanting to hire us, and everything. I don’t want to get involved in that. For example, I did a favor to an attorney that I knew. She’ll know there’s a fire in this guys’ house that was mainly a smoke fire. Big place. A guy was hired to come in and hand stained all the woodwork. Well, he put all his rags in a metal can at the end of the day and went home. Most people, a lot of people don’t know, but when you do that, those rags will self-combust. Okay, so that’s what happened. So, the house is completely filled with smoke. So, this homeowner goes out and hires this indoor air expert from – I think, Oregon. Who rang up like $60,000-$70,000 in the middle of writing this expert report. That was one of those reports where all it wants is photocopies of other documents. So, I didn’t want to pay him. But his conclusion at the end of the report was basically he had to tear the house down. Because these micro particles of soot got into everything in the house, and you’re never going to get them all out. So, because of that, you got to hear the house down. So, they went to mediation. The guy never got paid, he never showed up. This just kind of showed me, “Hmmm, don’t [want to] work [with] homeowners.” They get wacky. Some of the wackiest people. Even for the defense, the homeowners are just strange. It’s not what I want to do for a living.

Noah Bolmer: Let’s talk about class actions. I see that you have been involved in some class action cases. How is that different for an expert witness? Does that change any fundamental part of the job or is it business as usual?

Mark Elmendorf: From what we do, it’s pretty similar. It doesn’t change a lot. You just have to be aware you’re going to have different endpoints. I worked on a school district-related class action. There were multiple plaintiffs, about 15 or 16 families. You have to try to understand differences between them. Are they living in the same type of housing? Are exposure scenarios different? What are they claiming? You try to identify similarities and differences because they’re trying to argue it’s a unified class. If you can point out that that’s not the case, it’s good to know. It’s good to have that information. Like now another weird case, we were able to demand that they test the residences of all the parties. A class action is still giving unlimited number of plaintiffs, but they had to get their get their class action certified. And the levels of contamination in most of these residences was higher than the buildings and the exposure scenarios that they were putting in their case. So  the case didn’t go too far.

Noah Bolmer: When you when you first get engaged, you sign the engagement letter, how do you start off on the right foot and maintain that momentum throughout the engagement, make sure that everything goes smoothly, that you’re communicating with your attorney. What are the important aspects, the important factors in a good uh expert attorney uh relationship?

Mark Elmendorf: I keep a running inventory of everything we’re doing. When they send me documents, I’ll start an index of those materials. I can provide that to the attorney and say, “This is what you’ve provided me.” If I’m looking for additional documents, the same thing, I’ll have one list that I keep a running list of these are the things I’m looking for, so I can update them and remind them. “Don’t forget I’m still looking for this and looking for that.” So again, just to make sure we’re all on the same page with what I think is important that we review.

And when somebody coming back and say, “You’re late with something” and I said, “Well, I told you it was the 15th, it’s only the 10th. Do you need it quicker? Let me see what I can do.”  I won’t refuse to do it. I’ll just say, “That’s [not] the only case I’m working on. I got a bunch of other stuff going on. I’ll be more than happy to prioritize. [If] it’s important to you, I’ll work this weekend if I have to. I will get this done for you.” And most of the attorneys are pretty good, they understand. I think everybody appreciates being organized so they know what they have coming up. They’re trying to find stuff. And it makes it easy for them too, because if you go to them and say, “Oh please go to the plaintiff counsel and request these documents.” I don’t think it’s easy for them because they just cut and paste and shoot email. They don’t have to go digging through everything trying to figure out what they’re supposed to ask for. So, I think that helps them too on their own.

Noah Bolmer: Similarly, are there any red flags either during the initial conversation or during the engagement itself that really make you think, “Uh-oh, this maybe isn’t headed in quite the right direction?”

Mark Elmendorf: I’ve only worked on one case where I wanted to get out of it. And I ended up having a long discussion with the attorney saying, “I just I really don’t feel comfortable with this.” And it was a landlord, [a] pretty big property owner. And I got [it through] a reference, this attorney, but he wanted me to get involved. Usually, a lot of questions back and forth. Some tenants were suing for habitability issues and exposure issues, and at first cut didn’t seem that unreasonable. And then they sent me their first discovery, which included a whole bunch of photos and some videos from inside a couple of these buildings. I would assume, it’s-and I just couldn’t- there’s just no way I could stand in front no matter how hard I thought. There was just no way I was going to be able to testify that this was a reasonable situation. It was rare. So, I said, “I’m not going to charge you, but my advice is [to] settle this out as quick as you can, because I’d say that the stuff they send me, you put that in front of a jury, no one would not convict this guy.” It was that bad.

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses or attorneys working with experts?

Mark Elmendorf: Get organized. Get a good punch list together, an index. Take the time to talk to your experts. Don’t just say, “Yeah, I’m going to do this.” Set an hour aside and go through the case in detail. Like, we need to understand as much detailed information as possible so we can help you out.

And for consultants that are a little newer to the game and they’re trying to get into this thing, don’t be so nervous about it. If [it’s] your specialty, go for it. I mean just- again, just get organized, make sure you’re comfortable with the cases that you take. The better attorneys will help you out, they’ll prep you, they’ll work with you to get you where you need to be. And it’s to their benefit that turn out to be a good expert witness for their case. But [if] it does go to trial, improve your writing skills. I can’t stress that enough. These new generations of kids that are coming up can’t write a thank you note. I mean, I don’t know what they’re teaching them. But some of the stuff you read, you’d be like, “How did- where did this come from? This is bad.” You might have an engineering degree, but you can’t write a sentence. You’re not going to be an expert witness. You’re not going to be able to put these reports together. They have to read well. Proof your work. You do something, you put it together, set it aside for an hour, go back, go through every line. You don’t want any errors in these documents. Every error, every mistake, every typo, it all makes your credibility reduced. The documents [have] got to be tight. You got to spend the time to go through [them]. Get somebody else to look at them. We have a technical editor in our firm. And lots of times when I’m done, I’ve been through it so much I can’t go through it anymore. I’ll send it to her and have her go through it. Make sure I’m not missing anything in my punctuation or, a comma, or, whatever. And I think it matters. Not all attorneys, but a lot of attorneys are very good writers. [They] appreciate well-written documents.

Noah Bolmer: Absolutely sage advice. Mr. Elmendorf, thank you so much for joining me here today.

Mr. Mark Elmendorf, Principal Scientist, Roux Associates

Mark Elmendorf is a Principal Scientist with over 30 years of experience in environmental consulting, specializing in regulatory analysis, vapor intrusion, air quality, and risk management. He serves as an expert witness on environmental litigation and insurance matters, with expertise in contamination assessment and remediation, and has also led training programs for state agencies on engineering and compliance issues.