In this episode . . .

When Steve Hopper received an unexpected call from an attorney thirteen years ago, he never imagined it would lead to a second career spanning over 55 cases as an expert witness in warehousing and logistics. Initially skeptical about expert witnessing due to negative media portrayals, Hopper discovered the critical importance of bringing specialized knowledge to judges and juries navigating complex technical issues.

Perhaps most valuable is Hopper’s perspective on ethics in expert testimony. “I’m not an advocate for your side of the case,” he explains. “It’s not my job. You’re the advocate, I’m not the advocate.” This commitment to factual accuracy has occasionally led him to withdraw from cases where attorneys pressured him to offer opinions he considered unsupported. For professionals in any field considering expert witness work, Hopper’s experience provides a roadmap for maintaining integrity while delivering effective testimony.

Check out the entire episode for our discussion on demeanor in different venues, remaining available, and staying current in your field.

 

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Steve Hopper, Founder of Inviscid Consulting

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Steve Hopper to the show. Mr. Hopper is the founder of Inviscid Consulting, a consulting firm specializing in driving down operating costs, improving service levels, warehousing, distribution, fulfillment, and logistics. He holds a bachelor’s in industrial engineering from the Georgia Institute of Technology. Mr. Hopper, thank you for joining me today.

Steve Hopper: It’s my pleasure to be here. Thanks for having me.

Noah Bolmer: You’ve been in logistics for a while, nearly 40 years now. How did you first become involved in expert witnessing?

Steve Hopper: It was about 12 or 13 years ago, [when] I got a phone call out of the blue from an attorney who was working on a case, and he asked me, “Would you be interested in [being] an expert on a case?” He spoke with me for a few minutes, and at that time, I was green at doing this type of work. I said, “Sure, let’s check it out.” One thing led to another, and since that time, I’ve worked on 55 cases.

Noah Bolmer: Wow. So many. Let’s back up to those first ones. Did you know that being an expert witness was a potential career path, or heard of expert witnessing before?

Steve Hopper: I had heard of it. If I’m being candid with you, I viewed it as a stigma because I’ve seen too many TV shows where the expert witnesses are almost sleezebags in the roles they played. I wanted to certainly avoid that. As I began to explore it further, it became apparent to me how important it is to do expert witness work as long as you are obviously an expert in the subject matter that you’re working on. That’s an important fundamental factor.

Noah Bolmer: That’s something that I would like to explore a little. Why are expert witnesses important in general to jurisprudence? What is the place of expert witnesses in general in law?

Steve Hopper: I will explain it this way. When you’re getting into certain subject matter that your typical juror or judge might not understand. It may not be something [highly] technical. It could be an industry or an element of the industry that they may not have been exposed to. Having someone who has spent their career, or a large part of their career, working in that industry, [who] knows all the ins and outs and moving parts of that industry, so to speak, and having those people be able to answer questions truthfully about what happens in the industry. Different technologies and practices, as well as common ways of doing business in that industry, could help people like judges and jurors in these types of cases.

Noah Bolmer: Let’s talk about those initial phone calls. It’s a two-way vetting process. You’re deciding whether you want to take the engagement, and the attorneys are deciding whether they want to engage you. What are the important questions that expert witnesses should be asking? What are the questions you typically hear from attorneys during that initial phone call?

Steve Hopper: I know to ask these questions now, but [when] I started out, I didn’t think to ask questions like the type of case it is, because first, there are different jurisdictions, and every state has jurisdictions. There are federal courts and the federal court system, and the rules of engagement, so to speak, vary considerably by state and by federal. There are nuances with respect to whether it’s a civil case or a criminal case. I’ve been picking up on this throughout [my career]. In my line of work, I’ve only had one or two cases that were criminal in nature. That’s something to consider. Another factor is whether you would be retained by the side that is the plaintiff in the case, or the side that is the defendant in the case. Because, depending on which way that is, it can affect the type of things that you would end up doing [in] the case itself.

Noah Bolmer: What are some of the differences between working for the plaintiff and working for the defendant’s side?

Steve Hopper: Working for the plaintiff, I’ve often used the term, and I’m not an attorney, so I apologize if I’m not using the correct term. Hopefully, attorneys out there won’t hold this against me. But many times, when you’re working on behalf of the plaintiff, you’re doing what’s known as an affirmative role, where you’re trying to demonstrate—you’re trying to provide factual information that can be used by the side of the case that is trying to make a claim. If you’re working on behalf of a defendant, you are [often] in rebuttal mode. You’re trying to provide the information that would help the side of the case that needs to rebut someone else’s claim. As a result, you may see that through two different lenses. I can give you a specific example. I’m working on a case where the side that has retained me is the defense. They have asked me to review a report and other factual information provided by the plaintiff’s side. As I review it in rebuttal mode, I’m looking for errors and unreasonable conclusions. Whereas, if I’ve been working on the plaintiff side of the case, I’m [often] not rebutting anything. I’m in a more affirmative role of helping them make the claim in the first place.

Noah Bolmer: How is writing a rebuttal report [different from] writing an expert report?

Steve Hopper: There are some substantial differences. When you’re retained by the plaintiff, it’s a little more nebulous in terms of what you are focusing on to prepare a report. I spend extra time with the plaintiff’s attorney to understand what they want me to address. I might even go so far as suggesting, “Would you like to give me a list of questions you want me to answer in my report? That way I can zero in on what opinions are important to you?” Working on the defense side, it’s a little easier because you know exactly what you’re going to be commenting on, because you’re responding to opinions that were already given by somebody else or claims already made by somebody else. What you’re giving an opinion on is clearer when you’re on that side.

Noah Bolmer: One of the things that you mentioned when we first started talking was different venues. You have state, federal, different types of state, and criminal versus civil. What is it like as an expert witness working in different venues? Do you need to familiarize yourself with any of the norms or laws of a new venue? Do you work with your attorney to understand what those different rules might be? How do you go into a venue that you’ve never worked in?

Steve Hopper: That’s a great question because there are so many differences, and I’ve picked up a little on this through the years. It’s not something that becomes difficult. It’s making sure that you understand the rules of engagement when you begin working with an attorney. Let me give you some examples. They vary. I would always lean on the attorney to understand what those rules of engagement are, in general terms. An example at the federal level is that correspondence between an expert witness and an attorney is generally considered protected. A simple example is if I were to email questions to the attorney and said, “Have we looked at this? What about this?” Or “I’m thinking this might be a factor.” Those exchanges would be protected, and the other side couldn’t discover them, to use the legal term. They couldn’t have access to what those conversations were because they were protected.

At the state level, it varies widely by state. Those conversations are [often] not protected, so if you were to raise an issue with the attorney in an email, for example, and it wasn’t protected, then attorneys for the other side could potentially get access to those conversations. It could give them information that your side of the case would not want them to see. You have to be sensitive about it. Is it something to be discussed in an email exchange [rather] than a phone call?

Noah Bolmer: Do you find that attorneys do a fairly good job at letting you know what is discoverable and what is not? How would they prefer you to communicate various things given the venue where you’re going to be working?

Steve Hopper: I hope the attorneys’ listening won’t hate me for this, but I would say, no. I do not. If I didn’t—if I hadn’t learned to ask these questions, most of them would not tell me. It’s not that they don’t want to tell me. They’re thinking about telling me things like the rules of engagement. I’ve learned to ask that question.

Noah Bolmer: That’s a common refrain among expert witnesses. “You are not the first person, and you shan’t be the last.” Besides that, what are some of the other things that attorneys could be doing a better job with vis-à-vis expert witnesses in terms of preparing them overall for the case? What should attorneys be letting their experts know before starting a case?

Steve Hopper: Much of that has to do with the facts of the case. Again, I don’t mean to make it sound like attorneys are intentionally withholding information or anything like that. If I put myself into the mind of an attorney, they’ve got a bunch of cases going on and they’re juggling things that—they aren’t thinking about what I need to get my hands on. Many times, it’s happened where I’m looking for a piece of information, or I might be looking for something that was filed between the attorneys and the court. I might be looking for a piece of evidence, an exhibit or something like that, and I have to ask, “Do we have this? Can I get my hands on this? Where can I find this?” Oftentimes, the attorneys either will say, “I thought you already had that.” And I don’t because they never sent it to me. They’ll say, “I never thought about the fact that maybe that would be helpful to you. We’ll get it to you.” The lesson to be learned there is always ask. I’m constantly asking attorneys, “Do I have everything? Do I have all the pleadings, filings, and exhibits? Do I have everything that I need to review?” More than once, it’s happened where I’ve gotten into a deposition where the opposing attorney brings something up and says, “Are you familiar with this deposition?” It was never shared with me. I have to be truthful, so I have to say, “No, I was never given that.” Then they start to rant, “You mean your attorney never gave you this important deposition or this exhibit?” All I can say is, “No, I wasn’t aware of that before today.” Which is the truth, and I have to tell the truth.

Noah Bolmer: You advocate for a proactive approach. Expert witnesses should be asking their attorneys for things that they might be missing. Of course, the newer expert witness doesn’t know what they don’t know. They don’t know what they need to have and what they’re going to be quizzed about on the stand. Speaking about being quizzed on the stand, let’s talk a little about preparation. What are the most effective preparation methods for expert witnesses? Do you like a mock cross examination? Do you like to make sure that you’ve read your report and have it memorized? How do you get ready for the big day?

Steve Hopper: I spend a lot of time talking to the attorney because again, they’re the expert in the legal strategy and what they think is going to take place in the courtroom or whatever. Again, I’m asking questions to the attorney about what—sometimes there are many documents. Everything from depositions to exhibits and so forth on a case. I’ll ask them which of these things do I need to go back and be prepared to respond to versus—you don’t want to boil the ocean. I use that term a lot and am careful not to be an expert in everything that’s there. What are the key things that we think are going to come up and what is key to your point? What questions do you think I’ll be asked? Those things in preparation are extremely important.

Noah Bolmer: How about pre-trial routines or pre-deposition routines? I’ve had expert witnesses tell me, “I do yoga.” Or “I avoid breakfast.” [Some say], “I drink a ton of caffeine.” Everybody seems to have a routine for the big day to keep them from getting the jitters and making sure they’re mentally prepared. Do you have any routine or ritual before a big action?

Steve Hopper: These days, some of these actions are becoming virtual. My thought process might be a little different if I were doing in person testimony, at a trial or hearing. Most of them are in person but depositions are [becoming] more and more remote. But no, I’m not the kind of person that tends to obsess over routine. Obviously, I want to feel prepared, so I spend the time reviewing the things that again, the attorney and I have talked about, and think are going to be brought up. Getting a good night’s sleep like they showed in the commercial years ago for one of the hotel chains, “There’s no exception for a good night’s sleep.” If I’m remote and going to be doing it on camera, I’ll have a cup of coffee and a bottle of water handy that I can sip on during that. But no, I don’t think there are any other routines that I tend to—one of the things that I do is ask the attorneys about what I should wear. Some attorneys will say, “We want you in a suit and a tie.” Others might say, “You can wear a sport coat, sport shirt, and a no tie.” I’ll ask those things to prepare for trial, but as far as waking up and going through some superstitious routine, I don’t—I don’t have anything like that lined up.

Noah Bolmer: It’s interesting you bring up wearing a coat or not wearing a tie. I have heard from expert witnesses that some venues tend to be more formal, and some tend to be more casual. Have you noticed a difference between various venues? How do you work on demeanor? How do you make sure that you’re presenting yourself not only appropriately, but appropriate for the specific venue that you’re going to be in?

Steve Hopper: You want to respect the decorum of whatever venue that you’re going to be testifying in. But not being someone who’s extensively skilled and experienced with that thing, again, my question for the attorney is, “What is the appropriate thing?” I want to show respect to the judge. I want to show respect to the jury. I want to wear the thing that is appropriate. But there is an opposite extreme to that. I don’t want to wear something that looks too pretentious or too—I want the judge and the jury to relate to me and be respectful of them. I don’t want to overdo it one way or the other. I lean heavily on what the attorney would recommend.

Noah Bolmer: I’ve had [many] experts tell me that during the pandemic a lot of this moved to virtual. Have you noticed besides these virtual engagements, any other technological changes, or changes in expert witnessing? You’ve been doing this for a hot minute. Have you seen any significant changes in expert witnessing from when you got started till now?

Steve Hopper: There was certainly that period you’re referring to during COVID where in-person contact changed quite a bit, but since we’ve come out of the woods on that quite a bit, I do think the—and not just in litigation work but in business in general, people have begun to appreciate the use of technology, that it can be used effectively to do some events and activities. The pendulum swung further back towards the in-person testimonies and so forth after we came out of the woods on COVID. Other than that aspect of it I haven’t observed an amount of difference with respect to how these are done other than like I said a bit of a trend towards the virtual as opposed to being in-person. Everything else has stayed the same, at least in my observation.

Noah Bolmer: As somebody who has done, you had said over fifty cases, do you have a couple—obviously, you don’t need to bring up any specific names. There are NDA’s and we can’t talk about the specifics, but are there a couple cases that either changed the way you go about some aspect of expert witnessing or reinforce something that you were already doing?

Steve Hopper: We’ve touched on a couple of those where you don’t want to be—you know the expression, be a deer in the headlights. You don’t want to be asked a question that you didn’t explore with the attorney. Making sure that you are brainstorming with the attorney for the content that might come up during the during the deposition, or trial, so you’re prepared to answer it. The funny thing about all that is one thing I learned when I first started doing expert witness work and had some training courses. One of the things that I took away from the beginning of it is [that] we’re not supposed to advocate for one side or the other even though one attorney has hired us to be involved in a case. We’re not an advocate for one side or the other. The way it was presented to me early on was that we are an advocate for the truth. That said, we’ve been retained by a side, and we need to help them get the truth out there. Being mindful of that is going to help their case. Again, in the conversation with the attorney trying to figure out how can we explain this in a way that is going to help the judge and jury understand the facts of the case in a way that they can make a good decision on that. In my earlier days, maybe I didn’t mindfully think about doing that kind of thing. I just went through the motions and did what I was told. Now that I’ve done it a few times, I’ve been more proactive about trying to figure out what language to use and whether I should bring in an exhibit that would articulate something better or not bring in an exhibit. That’s the way my mind works in these kinds of things.

Noah Bolmer: Let’s talk [about] exhibits. Do you find demonstratives to be effective in connecting with laypersons? We always have to assume that the Finder of Fact, be it a judge in a bench trial or jurors in a jury trial, are laypersons. Do you find demonstratives be they charts, graphs, models, etcetera- do you find that these help you connect and explain your field of expertise?

Steve Hopper: They certainly can be helpful and again, it’s something that I want to make sure I review with the attorney. We can talk about what’s it going to take to produce this and how it will be used in all of that. In many cases, I can sit somewhere and rattle on about something, but sometimes a picture is worth a thousand words. I can show a chart, a table, a graph, or in my line of work, a layout of an area can be helpful to others so they can get a mental picture of what this looks like. Many of these demonstrative exhibits might be a table or a chart [that] summarizes it easily for the jurors or the judge.

Noah Bolmer: Does the trial team produce those for you, or do you contract those out?

Steve Hopper: It’s a little of both. In most cases, the attorneys have asked me to produce them. I guess it’s because they don’t want to be perceived as putting words in my mouth, even though they’re visual and not actual words. There have been once or twice when the attorneys have their people [develop demonstratives] because there may be other experts involved. I’m working on a case right now where there’s an accident reconstruction team and they have sophisticated animation and graphical capabilities that as an industrial engineer, I don’t have. They’re producing exhibits, so could I do something that will help articulate that? Possibly, but why not just let those guys do it? They are much more sophisticated at being able to produce something that’s professional in that way.

Noah Bolmer: That segues to an interesting topic about trial teams because [many] new experts don’t realize it’s not just you and the engaging attorney. There could be other attorneys, paralegals, and other expert witnesses. There’s a whole diverse cast of characters that makes up the trial team. To what extent do you interact with other members of the trial team during an engagement?

Steve Hopper: That has been variable because of what I said before. Certain attorneys, because of the rules of litigation in that jurisdiction don’t want you to talk with others who are performing those roles. Other times they encourage it. They’ll encourage us to a meeting of the minds and talk about these different things because even though we’re not acting as experts in the exact same element of the case, we may be experts in things that are connected or might be involved with each other. Having that discussion can be helpful to both of us. It varies depending on the nature of the case and I’m always careful to make sure what exactly the rules of engagement are on this case. [Many] times, I will make notes to myself about following those rules for that case. In other cases, I won’t have to follow those rules.

Noah Bolmer: Let’s move to the general a bit. What makes for a great expert attorney engagement? What are the factors that lead to efficiency, quality, and even a bit of fun?

Steve Hopper: In retrospect, more than anything else, making sure that both of us, and when I say that I mean me and the attorney or the attorneys, understand exactly what the expectation of my role is. Like I’ve said earlier, what questions do they want me to answer? What kind of questions do they not want me to answer? There have been a number of situations where I could—where my expertise goes into areas that I could answer but either they have [another] expert who’s dwelling in some of that, or they don’t want me to step out of my lane. I’m just speculating here, but they don’t want to open a can of worms and have me delving into subject matter that I could, as an expert answer, but they just don’t want brought to the surface for some reason. I’m all about at that front end, making sure exactly what it is. What is my lane? What do they want me to focus on, so I can focus and drive in that direction. The more time that I’ve spent doing that upfront, the easier it has been. I also will find out from the attorney, I keep using the term rules of engagement, but different attorneys, like people in general, have different communication methods that they prefer. Some people are all about e-mail. Some people are all about text messages. Some people are all about phone calls. Understanding what the best way for us to communicate with each other so we can do this effectively. I always try to remember to tell all my attorneys that they can contact me 24/7. They can contact me day, night, evening, and weekends. I have a philosophy that if my phone rings and I’m not in the middle of something else I will answer it regardless of when that is. I make sure they know that upfront so they don’t have to feel like, “Will I have to schedule a call with Steve at 2:00 on Thursday afternoon by an Outlook invite?” They can do that if they want, but they can just pick up the phone and call me, or text me, and say, “Have you got time to talk?” and we’ll hop on. Establishing all these things upfront can be helpful. Again, trying to get to the bottom of the information that I’m going to need on the case. Making sure that they provide that to me and asking them how much they want—how deeply they want me to review it, because I’m billing for my time. I want to respect that they’ve asked me to work for them, and I don’t want to bill for the sake of billing. I want to bill enough time to do the work that they’ve asked me to do. I could spend days scrutinizing every line of a deposition when I could do a quick read through in an hour or two and get the gist of the deposition. What’s important to do on that and getting that guidance from the attorney is so important. To be able to do that pays dividends down the road on the case because you’ve established all that upfront and there are no surprises or no cluelessness on my part about how I’m supposed to proceed.

Noah Bolmer: You mentioned staying in your lane and it’s something that attorneys mention is that they want an expert witness who is not only an expert in their field, but current in their field. In your field, what does it mean to be an expert? What does it mean to be currently an expert and on top of developments? You’re in a fairly dynamic field; how do you stay on top of all of the changes?

Steve Hopper: Like you said, at the top of our discussion, I got out of school almost 40 years ago and studied the same subject matter in school. I’ve never done anything else and that’s why my knowledge is so deep, which sets me up in this type of work. It is a science. [Many] people don’t think about warehousing as a science, but it is a science. That’s a mistake a lot of people make by not thinking [about] that. Things are constantly changing. Technology impacts the mundane practice of running warehouses and distribution centers as much as it impacts everything else.

To answer your question, to be an expert, part of my responsibility is to stay on top of the trends in the industry. What is changing in the way the practice of warehousing changes over the years? Obviously, that’s going to include technology. We are in the modern era of high tech with robotics and things than it was 40 years ago when I got into it. There are also different, without getting too technical, practicing active warehousing is different than it was in those days. It’s always changing. People are coming up with new ways to simplify processes, streamline distribution networks, and new ways to manage labor. Labor is one of the biggest costs of warehousing. New ways to optimize floor space and facilities, and if you are not staying on top of that, you could quickly become a dinosaur in the industry. So, for me, what does that look like? I’m constantly reading newsletters, blogs, video blogs, and I subscribe to all the major trade publications in my industry. Seeing what’s going on, different articles and all of that so I can make sure that I’m staying on top of what those trends, technologies, and practices are.

Noah Bolmer: Let’s talk about initial contracts. When you make that initial phone call and have your engagement letter, there are a million ways to write these contracts. Some people have a non-refundable retainer. Some people like to work on an hourly rate. Some people like to do a contract [with] a project rate. Some people have travel rates or different rates depending on the exact thing that they’re doing at the moment. How do you like to structure your contracts?

Steve Hopper: I have my typical—I’m flexible in that if the attorney that retains me is working under certain constraints and wants to do things a little differently we can do that, but in general, I’ll use the typical—I have a standard litigation support agreement that I typically use. It comes in a couple of different flavors. One is if I’m retained by the attorney. The other is if I’m retained by some third party that might be working with that attorney such as the end client or an insurance company. I have two different versions of that contract that I use. The overall terms are [mostly] the same, but the fees are a little different because I’ve learned from experience when you’re retained by the attorney and they tell you they want you to do something, they know what they’ve asked you to do. There’s not going to be any question later on. “Why did Steve do that and bill us for that work?”

If I’m retained, from a contract standpoint, by a third party like an insurance company, the attorney’s over here saying, “Do this, this, this, and this,” and I run in that direction. Then I send the bill, and the insurance company’s going, “Why are we having to pay this bill?” The fees are because of the hassle factor, the explanation factor, and the extra time it takes to deal with all that. That’s why I have two different fee structures and contracts. Sometimes, I’m retained by a referral service, and some services have their own contracts that they use. Some referral services will take a commission off of my time. Either the retaining attorney pays the commission, or I pay the commission. There are all these variations to that. It’s simple in general, but it can vary depending on the dynamics of who’s involved and with the different roles of the different parties that are involved in retaining me as the expert on the case.

Noah Bolmer: You bring up referral services. Have you found referral services in general to be useful in your practice?

Steve Hopper: Absolutely. If I had to guess probably half or more of the cases that come my way, come through these referral services.

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

Steve Hopper: I touched on this earlier, but one of the things that maybe I knew intuitively, but it’s in my head now, is that as an expert you don’t have to worry about pleasing, hopefully this won’t sound bad to attorneys, but you don’t have to worry about pleasing an attorney. It’s not my role to please an attorney. It’s my role to make the attorney aware of things. Maybe things they don’t want to hear, but I should be focused on what the truth is. There’s an old expression, “Would you rather have me tell you the truth, or would you rather have me tell you what you want to hear?” Hopefully, people make the wise decision there. What I often tell attorneys is, “I can’t advocate for your side of the case. It’s not my job. You’re the advocate. I’m not. I’m not going to advocate for your side, but if I see something that I think exposes your side of this case, then I will bring that to your attention.” Obviously, it’s going to be the other side’s responsibility to come up with the right questions to ask me if they want that information, but I can’t advocate for you. You do need to be aware that this is an issue that could potentially hurt your side of the case. It’s not my job to bring that up but it is something that you need to be aware of as you’re planning your case strategy. You need to have a way to address that issue if it comes up because if I’m asked that question, I’m going to tell the truth about it. Again, it may not be what they want to hear, but it’s what they need to hear. There have been a couple of cases I’ve literally walked away from. Not disrespectfully, but I’ve had to tell them, “You’re trying to get me to say this, and I cannot put my career on the line by saying this. If you need me to say this, we’re going to have to part ways because that’s simply not true. I wouldn’t want to bank my reputation on that.”

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

Steve Hopper: Thank you for having me. It was fun.

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

Steve Hopper, Founder of Inviscid Consulting

Steve Hopper, is the founder of Inviscid Consulting, a firm specializing in driving down operating costs, improving service levels, and warehousing, distribution, fulfillment, and logistics. Mr. Hopper holds a bachelor’s degree in industrial engineering.