In this episode… 

Do not, under any circumstance, work without a retainer, according to Dr. James Pastor. He believes that your credibility and the engaging lawyer’s respect for your experience are embodied in retainers, and agreeing to one gets the employee-expert relationship off on the right foot.  

Check out the entire episode for our discussion on avoiding premature opinions, Zoom depositions, and conceding less-than-ideal facts.  

 

Note: Transcript has been lightly edited for clarity 

Host: Noah Bolmer, Round Table Group

Guest: Dr. James Pastor, Principal expert at SecureLaw, LLC

Noah Bolmer: Welcome to Engaging Experts. I’m your host Noah Bolmer, and I’m excited to welcome Dr. James Pastor to the show. Dr. Pastor is the principal expert at SecureLaw, LLC, a security and legal consultancy. He’s a security expert with a broad background, ranging from police work to academia. He’s a published author, a sought-after public speaker, and of course, an expert witness. Dr. Pastor holds a PhD in public policy analysis, and a JD, from the University of Illinois at Chicago. Dr. Pastor, thank you for joining me here today. 

Dr. James Pastor: Thank you, Noah. It’s good to be here. 

Noah Bolmer: You’ve made a career in security. How did you first get into expert witnessing? 

Dr. James Pastor: I transitioned from the police department to practicing law. When I wrote my PhD dissertation in 2001 that segued me to creating a pathway towards teaching, consulting, and writing, I defended my PhD dissertation on September 10th, 2001, and I say the next day the world blew up. I was talking about an esoteric topic called Private Policing on Public Streets. No one cared about that until that event occurred. My life’s direction took a turn away from the more active practice of law towards teaching, consulting, and writing. My first case was sometime in the early 2000s and it’s something that I always wanted to do. It’s a crucial part of the litigation process in this country, as experts tend to turn the case one direction or the other. It gave me the opportunity to utilize some of the litigation experience I’ve had over the years but become more independent of the process. As a litigator, you’re tied to the court docket, the courts, and the managed case management system. I bring an understanding of the legal system as well as how lawyers think into the equation. 

Noah Bolmer: As an attorney, have you used a lot of expert witnesses in your practice? 

Dr. James Pastor: I have, mainly medical back in the day, but I don’t practice law now in terms of litigating. I advise and help in various ways, but I am not a litigator anymore, in terms of my practice, but years ago I did hire experts. I understood what the experts were looking for and clearly my goal at the time was more limited to “how is this person going to help my case?”. That same feeling now transcends into how I can help their case. The tables are turned in a sense. 

Noah Bolmer: Now, as somebody with unique experience of being both an experienced, expert witness and an attorney who has used experienced expert witnesses, what are those initial phone calls like from both sides? What should attorneys be asking and what should expert witnesses be looking for because it’s a two-way vetting process. In some ways the expert needs to decide if it’s an appropriate engagement and the attorney needs to decide if it’s an appropriate expert witness. Tell me about both sides of those calls. 

Dr. James Pastor: I use the caveat of watch out for shoppers and as an expert you have attorneys who are calling around looking for somebody that might say the things that they want them to say. My approach and advice is, if you’re the expert, listen carefully to how the facts are being conveyed. Lawyers will often talk in terms of conclusions when they’re not conclusions. They are characterizations about facts that the expert would need to be cognizant of. The experts should ask some questions, but not too many. The job at that moment in time is not to go to the crucial facts of the case, but to get an overview of what the case entails. Then some discussion as to what your background is, your experiences, some way of characterizing your credentials and how they fit to the facts of the case. From an attorney’s perspective, they’re going to want to hear that the expert is going to help them. The problem is I as an expert, think you should never give an opinion on the phone, particularly on the first call if you’re just getting your feet wet in this case it’s incumbent on you not to give a quote-unquote opinion. The lawyer often wants you to go that direction. There’s a balance there and how you manage that as an expert and how you qualify that as an expert is important. But that said, if you don’t think you can help say it. From a lawyer’s perspective and from an expert’s perspective, it’s the wrong thing to do to say, “I can’t help you, but I think I’m going to take this case anyway.” That takes you down a pathway that’s deceptive.  

Here’s an example. I do some expert witness work around the use of force in police cases. I got a call from an attorney who had what I would call nuanced fact pattern where their concern was an individual who was resisting arrest was taken down by the police and when that individual hit the ground, he broke his arm, broke his leg and did some fairly serious damage. The question essentially was this takedown appropriate? Was this done in accord within industry standards? That, to me, is a nuanced question in terms of how use of force cases are handled. So, I backed away and said, “No, I don’t think I can help you with something that specific.” Usually, most of the use of force cases that I’ve dealt with have dealt with a lot of deadly force which is in a weird way, more clear cut than a wrestling match on the ground where somebody ends up being injured. I backed away and said, “No, I can’t help you. I don’t want to waste your time, and I don’t want to say something that essentially creates a situation where, somewhere down the road, I’m going to have to back away and say, “I can’t give you the opinion you need.” So do it up front. 

Noah Bolmer: When you say that expert witnesses should try to avoid giving an opinion in the initial phone call, can you tell me about why that is? 

Dr. James Pastor: There are [many] facts that turn the case one direction or the other and to digest and understand all those facts and in a first phone call is essentially impossible. Anyone who thinks that you can do that, diminishes your role as an expert. What you need to do is back away from it. Say you’re interested [and] you think you can help, [but] you need to review the record in depth. Maybe even do an investigation. To avoid having that question or making that question part of your engagement is deceptive and it hurts your credibility as an expert. As a new expert, it’s impressive to have somebody ask you for your opinion and be willing to pay you for it. You could go down that path where you start to say, “I want to help. I want to help.” But you can’t help too quickly, and you have got to be careful how you frame it. 

Noah Bolmer: [Many] newer experts unlike you and I don’t have the benefit of a legal education. How important is it for a newer expert witness at the top of their field or their niche who have never done expert witness work before, to try and obtain some kind of mentorship or talk to other expert witnesses? Or is it enough for them to communicate any questions with their engaging attorney? 

Dr. James Pastor: That’s a good question. That’s a big question. What I’ve seen is most people are ill-prepared for the litigation process. You may be the top expert in your area, but unless you understand the litigation process, the mindset of attorneys, and unless you understand where those lines are drawn, you are at a distinct disadvantage. What I do for the attorneys that I deal with, and it cuts both ways, attorneys that who see you as an expert but also an attorney, [it] maybe daunting because they may not be able to get out of you what they might be able to get out of some other expert that doesn’t understand what I would call the game. If you understand the game, the parameters you should have as an expert, the process of litigating, how the record is set, and how to answer questions, [that’s] important to your value as an expert, but they have little to do with your front ability and merit as a professional in the industry that you’re working out of. I’ve been able to create a happy medium between being that expert in policing, security, and public safety, but also bringing in the attorney’s experience as well as logic of law school, if you will. That becomes an additional benefit to the attorney who engages me. It can also be a detriment if an attorney wants to push you into a corner and you’re not letting them do that, so, that cuts in many different ways. At the same time, if you don’t have an understanding of the process as an expert, you’re probably going to do things wrong that [could] hurt you or your client. 

Noah Bolmer: Let’s talk about that expert-attorney dynamic. As somebody who has been on both sides, how do you get off on the right foot in a new engagement? 

Dr. James Pastor: Rule number one is don’t work without a retainer. If you don’t have a retainer along with a check, you are you are extending yourself. You’re exposing yourself to the credibility and the character of the attorney, but even worse, they’re showing you that they don’t respect you. There’s a respect element that comes into form on the front end of the relationship. If they are willing to engage you and pay you upfront, they are saying we value your opinion so much that we’re going to go out on a limb and hire you. As opposed to the person who wants to keep fishing and waiting for you to give that answer and then they’re willing to pay. Understanding human nature says your perceived value is usually more than your actual value. On the front end of a relationship, if they perceive you to have value, they will demonstrate it by signing a retainer and paying you a check. That is the crucial step towards what I would call a professional relationship. If they try to cut corners then, they will cut corners three or four months later when you’re deep into the case and find it hard to extricate yourself from where what you started. Get off to a good start. No retainer, no work.  

Here are a couple of examples. I had a case out on the West Coast where I had done some summary work and did a report. Then almost a year later, the case went silent. Then, they came back and said, “We need a rebuttal right away.” They gave me a report they got from the opposing expert, which was atrocious. He didn’t have the skill set in the industry and the report was not well written, but they said we needed it done right away because [they had a] discovery deadline. So, you have that tension. At some level, you want to abide the attorney because they have to deal with discovery deadlines and that is an important part of your value as an expert. To be responsive and productive when they needed you to be. I went ahead and wrote a substantial rebuttal report and ultimately the case was then dismissed against the plaintiff which says that this report and my value was substantial. After the case was dismissed, I’m asking when [they are going to] pay the invoice. Then another attorney from the same firm comes in with a new case saying, “We want you to give an opinion on this case” and they run down the facts. Now, we have two cases. On the new case the attorney says, “Trust us because we paid you previously.” I said, “Wait a minute, we still have another invoice outstanding plus a new case, and you have to pay the retainer.” In essence, here’s the thing, I don’t know if they were playing a game, but I do know that you have to stick with your policy, particularly as a young expert. If you allow yourself to be reeled in because of course, it’s a motivating thing when somebody wants your opinion. It strokes your ego. “That’s great and then you want to buy me?” Then they really do have to buy you. Why do you care so much about the money? You can’t, but you have to. Because it does go to the respect and the professionalism of the relationship, which ultimately will reflect in your credibility as an expert, both in a deposition or even in trial.  

Noah Bolmer: Speaking of those retainers, let’s talk about billing. Do you have any other specific language or inserts in your contract that you require? For example, do you have a different travel rate? Do you do anything flat fee or is it all hourly? How do you like to structure your billing? 

Dr. James Pastor: I deal with a testimonial time which is an hourly rate, and non-testimonial which is an hourly rate. Travel is the same as non-testimonial. I have language in the retainer that says in essence if you haven’t paid me then I can stop work. I have language about Daubert challenges where if there’s a Daubert challenge, they need to let me know that there’s a challenge and they need to you, because this is my credibility. If you get excluded because they’re saying things that that are not exactly correct or they’re assuming you would say “X” when you would say “Y,” that’s wrong. It’s your business. I have language that says in essence if you disclose without paying me, then you pay a liquidated damage provision because ultimately you can’t disclose me as your expert until you engage me. You have yourself in various expert sites. They see your resume there and they can easily pull [it] down, disclose you, and never met him. Those games could take place. I hope they don’t. But I have a provision in the retainer that says if they don’t sign it, their tendering of the payment is accepting the terms and conditions of the retainer. In that way, you don’t need to have a signed retainer, but their payment is acquiescence to the terms and conditions. There are a number of other things you can say in a retainer. For example, you can ask for a clause that essentially says if you haven’t paid by 30 days, then there’s an interest payment that will apply. That can be a little picky and you may not want to. It might take the relationship further than you want it to go because this is a trust-based relationship. If they trust you, they- you ought to be able to trust them.  

Noah Bolmer: Do you get a lot of repeat business from the same clients or at least referrals from those clients? 

Dr. James Pastor: Yes, I do. One of the best marketing things is to take care of your clients, but yet, you don’t own their case. One of the crucial principles is the attorney will always care more about the case than your credibility or reputation. In your quest to win the case and make a friend for future reference, you have to be careful that you don’t cross lines in terms of your own credibility and reputation. This work is fascinating from a human nature standpoint because there’s a lot of interests that apply that you always got to keep in check. You cannot allow yourself to be a quote unquote hired gun and yet being a “hired gun” is lucrative. How do you manage that? Where’s your balance? You have to have a solid character and ethical framework in order not to go down a path that ultimately gets you into trouble, professionally or morally.  

Noah Bolmer: When we talk about somebody being an expert, you mentioned credibility, how do you remain an expert? It’s one thing to be educated and be in the field for a long time. But it’s another thing to be constantly on top of it and understand the newest goings on in a fairly dynamic field. In your field, how do you remain an expert? 

Dr. James Pastor: I could say I’m engaged in life. I have a good world view as to what’s going on out there because what I deal with is crime and policy matters that impact crime in one direction or the other. Of course, technology plays a huge role in how that is affected. It sounds tchotchke in a way, but in essence you have a lifelong learning attitude about life. You’re always learning and picking up new things. Never become a dinosaur. You’re staying engaged with the happenings and [much] of that means you have to be able to use technology or at least understand technology analogy and make that user friendly in a sense. Then you have a whole bunch of prior opinions to manage if attorneys are doing their due diligence and investigating what you said. I wrote four books, so I have [many] opinions out there and on a recent case, I had an attorney- I’d never seen anything like this before. He did PowerPoint slides, and he had a picture of myself, my business logo, and he has these words of, kind of an opinion or an assertion on a PowerPoint slide. Then said, “Did you say this?” I said, “You got that from one of my books.” Then he started to ask questions that were wrong to the fact pattern of the case. “How does that fit with what you said here?” Then, he tried to nail these isolated words on a six hundred- I probably have fifteen hundred pages of materials and books that could happen [in] any context, in any circumstance, and be driven by any statement in my head that was relevant to the issue at hand. He tried to pull that statement out and apply it to the facts and he was using these PowerPoint slides as attachments to the deposition. I did this for a few slides and then I said, “I’m not doing this anymore. I’m stopping.” Previously, the attorneys around me were objecting, but I said, “No. I’m stopping. This is it. I’m not doing any more of these slides. You’re summarizing what I said. You’re taking [my] words out of context.” That goes to how hard it is to be an expert as you gain status in the industry, but also to watch for what I would call creative, but not legitimate ways to impeach your credibility. 

Noah Bolmer: Has it ever happened that you have changed your mind on a subject, or maybe new information became available and the general thinking in your field changed? How do you contend with having said something and having a different opinion later? Then being impeached on that? 

Dr. James Pastor: In the world that I live in, I would never change my mind, but I generally operate out of principles and those principles are then applicable to the issues, facts, and circumstances at hand. That’s a bit tricky, because those principles are somewhat fluid, and yet if you gave an opinion that you don’t agree with any more than say it. One of the best things to do is- we’re all a work in progress. Our lives are dynamic and fluid. There are times that we mature into different opinions and directions in life and then say that. I used to say this even as an attorney when I represented police officers. If you’re asked a question, you can answer that in any way, but you have to qualify it appropriately. As you qualify it, you frame your answer in a way that makes you honest but yet, doesn’t expose you to a broad application of your statement. 

Noah Bolmer: Let’s talk about some of the more difficult and stressful situations that expert witnesses might find themselves, depositions, and cross examinations. Are there things that experts can do or should be doing prior to that difficult or stressful experience that will make it go better? Are there any preparation techniques that you find work well across the board? Part B to that question is, do you personally have any kind of ritual? Some people like to not eat anything. [Some like to] eat a big breakfast or drink a bunch of coffee. Listen to loud music or meditate. Is there something that you enjoy doing before going into a potentially stressful court situation? 

Dr. James Pastor: Let’s deal with the latter part first. I don’t change my routine based off of a deposition. I think I’m comfortable enough in those environments that I don’t feel like it changes me in any way. As a cop, I probably testified one thousand times, and as an attorney, I’m guessing I’ve been in about seven hundred depositions, so those things don’t stress me in any way.  

As far as preparatory things, if you wrote a report, read your report, and know your report. Make sure that report is top of mind. You should be aware of what the ultimate questions are that the attorney is going to be focusing on because those are the questions that are going to turn the case one direction or the other. Think about how those questions can be bridged or addressed, then how you may answer if they come from this direction or that direction. As an example of that, I had a recent case where I was in a housing project where an individual was shot and killed. They entered into the housing project through a gate that was inoperable because the gate was broken. The question in the case was, did the security firm breach its duty by allowing this person into the facility through this gate because it was broken. That becomes a crucial question of how you are going to help deal with the fact that there’s a broken gate, and as I say, every case has bad facts. If you understand the bad facts, well, you might need to address them. In this case, that bad fact was there anything done to remedy that day. Well there was. Was there any particular threat that was being posed prior to this? Was this individual known to be a bad actor? He wasn’t. Would he have gotten in through the facilities through other ways than the gate? The answer was yes. There are many things that play to this but the end result is be prepared. Those questions are going to turn your case. If you’re ready for them and understand what the facts and circumstances are that relate to them, you can then answer those in a lucid, honest way. It’s crucially important that you do that. You should also consider the obvious things. The lawyer is not your enemy, nor is he your friend. Be cognizant of having a professional demeanor, but also being friendly. This is not a fight. You’re doing your job and he’s or she’s doing theirs, and that’s good. Everyone has a role in the system, and you ought not to take it personally.  

I don’t know how deep you want to go into this, but if you do understand what the record looks like, be cognizant as to how your answers are coming out. If you’re giving partial statements and then you change your thought mid-sentence, be aware that the record may not be as it seems in a conversation, because what we’ll end up having is a black and white record or even a videotape that will be easier to understand, if it goes that way. If it’s a black and white transcript and you’re changing gears in between your sentence, the record will be confused. Be cognizant as to what points you’re making, that you make the point that you want to make, and that you made it in a way that was understandable.  

Those are big things. One more factor is to watch for compliments. Lawyers like to stroke your ego. “You’re the expert. I understand you have great credibility on this matter, and I certainly don’t know as much as you, but could you tell me about this?” That is a way to stroke you, loosen you up, and get you to say things that they may want you to say that are against the interests of who hired you. Now, if you’re being honest and you’re only giving your opinion because that’s what you believe, that’s one thing, but if you’re being led down a primrose path because your ego’s being stroked, that’s another. 

Noah Bolmer: Are these things that attorneys can effectively coach or train newer expert witnesses to do to maintain a professional demeanor? Some of the non-content things, like how you present things rather than what exactly it is that you’re presenting? Does that come across in something like mock cross examinations? Are there other tools that attorneys should be using in other ways that experts should be preparing themselves for these sorts of eventualities? 

Dr. James Pastor: The experts should prepare themselves. There are a number of training materials and experts or attorneys out there who have done various training mechanisms to support this. I’ve given some in the past. The attorney in your case, at least in my experience, because I don’t need it, but maybe I haven’t seen it. Most attorneys won’t educate you to how to testify because it takes too much time. They also don’t want to get into a situation where they’re coaching you to say things they want you to say. They don’t have enough time to jump through hoops. Attorneys who litigate are time constrained. An expert needs to know all the professional demeaners. They need to know how they’re appearing both on record and their own credibility. They need to understand how to shape their credibility in ways that are often nuanced. There’s a lot to be said there, but you get the drift. 

Noah Bolmer: Are there any negative stories that have informed the way that you go about expert witnessing? Any red flags that newer expert witnesses should be looking for? 

Dr. James Pastor: There was one case that I was taken off by a judge because, and this is nuanced, but let me try to frame it out. I have a Ph. D in public policy which means I have an understanding as to how laws become laws. I had an attorney hire me who was defending himself. He was caught having sex in a car, in a public area and his defense was the law that they arrested him for was not even a law at the time they arrested him. What he wanted was for me to go through the record, understand what the city legislator, or City Council was doing at the time, and determine whether it was a law or not at the time that the arrest was made. I understood walking into this, that I was dealing in a legal question, not a factual question, and generally speaking experts should confine themselves to factual issues, not legal questions. I had this gray and somewhat unique way of adding some light to a question that blended well with my background. I figured, “OK, I’ll give it a try.” I wanted to be cognizant of the judge’s prerogative, and I went a little beyond where the judge wanted to go. Or he just didn’t like the fact that an expert was opining about legal questions. “No, we don’t need you in this case.” It wasn’t anything I did wrong. It was that the line between law and fact became blurred. The takeaway for experts more generally is to be on the fact side of that line and be careful there’s no blurring of that. In the premises liability world in the security industry, there are [many] legal judgments that are made relative to duty that tend to blur that line. The deeper you get in the nuances of that the more relevant that might become. 

Noah Bolmer: Let’s back up to more general matters. You’ve been doing this for a while. What are some of the changes that you’ve seen as an expert witness from when you first started? Are they going to settlement more often? Has Zoom and telepresence change things? What are some of the changes that you’ve seen? Do you see any trends that are moving us in any specific direction in the near future? 

Dr. James Pastor: The biggest change is technology. I haven’t done a live across the table deposition in years. Everything seems to be going towards Zoom or Teams. That’s an excellent cost-effective nature that attorneys- I’m based out of Florida and I get [many] cases in different parts of the country. It’s cleaner for attorneys to engage experts around the country because of Zoom. That’s a positive thing in many ways because it’s cost effective and it’s efficient. You don’t lose a lot with the interaction, but you lose a little because there is an eye to eye across the table looking at each other in a deposition room that you might lose. Sometimes, that cuts positively and sometimes cuts negatively.  

The biggest factor going [on] is AI. My gut says, and I don’t know this definitively, AI will vet your opinions in ways that attorneys can’t. If you’ve given thirty depositions in the past or you’ve written fifty reports, AI can cut through that and get to some pointed examples or pointed conclusions as to what you would say and when you said it. The ability to capture information through AI about what you did in the past is going to change the expert witnessing business. It will change the nature of how those things are dealt with in a litigation setting. It’s too early to tell how big this will be, but that goes back to the point you start with, that credibility is everything. If you are comfortable in your own mind that you’re doing and saying the things that you believe, there’s something out there in the background that AI quote unquote can find, well, you shouldn’t worry about it because you that’s not who you are. That’s not how you operate. Abraham Lincoln brought an interesting point to this. He said something to the effect that “No one could be a good enough liar because their memory isn’t good enough.” They have to remember who they said what to and when. AI can remember all those things. What would need to be done is to galvanize yourself more and more and only in what you believe, and then if there are things that are outside of that, you can explain it based on circumstances and factors that are not unique to this particular case. That’s a long-winded [way] of saying technologies have changed and will continue to change like everything else in life.  

Noah Bolmer: Of course. Before we finish, do you have last advice for expert witnesses, particularly newer experts or attorneys working with them?  

Dr. James Pastor: I guess the best thing I can say, and this sounds- it’s more soft than it is hard and that is, care about your role. Care about doing justice? Care about the truth. And as you- with that, you become more and more valuable because what? Lawyers, you know, lawyers will want you to say what they need you to say, but they’ll also respect that you have your own lines and then having that reputation and living it is a crucial part of [it]. When a case really matters, there ain’t no- lawyers are going to want to have somebody that is solid. That isn’t going to be impeachable. That isn’t going to blow with the wind. And so thus stay grounded. Stay focused on who you are and what you believe. And you know, if there are facts in the case, don’t be afraid to concede on certain things because you know what? It is what it is. Your job is not to hit a home run. For your client, your job is to do your job. You might give him a triple, but you know a triple is a triple. Triple is better than a single, but if you can’t give a home run, then you don’t give a home run, and so- and that will help you, you know, months and years later. 

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

Dr. James Pastor: It was my pleasure. Great conversation. 

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

Dr. James Pastor, Principal, SecureLaw, LLC

Dr. James Pastor is the principal expert at SecureLaw, LLC, a security and legal consultancy. He's a security expert with a broad background, ranging from police work to academia. He's a published author, a sought-after public speaker and of course, an expert witness. Dr. Pastor holds a PhD in public policy analysis.