In this episode…

If you can’t take your emotions out of a case, you should decline, according to Mr. Christensen. Even without a traditional conflict of interest, it is important to be comfortable opining on a topic given the facts of the case and the framework established by the engaging attorney. Neutrality is key.

Check out the full episode for our discussion on expert witness referral services, trying too hard to be helpful, and arbitration.

In this episode…

Our guest, Mr. Gerry Christensen is the founder of Wireless Waypoint, a consulting firm specializing in wireless technology solutions, and Mind Commerce, an information technology and strategy firm. Additionally, he’s the Head of Partnerships and Regulatory Compliance at Caller ID Reputation, a technology-driven service company. Mr. Christensen is a sought-after expert witness and holds an MBA from Auburn.

If you can’t take your emotions out of a case, you should decline, according to Mr. Christensen. Even without a traditional conflict of interest, it is important to be comfortable opining on a topic given the facts of the case and the framework established by the engaging attorney. Neutrality is key.

Check out the full episode for our discussion on expert witness referral services, trying too hard to be helpful, and arbitration.

Episode Transcript: 

Note:   Transcript has been lightly edited for clarity 

Host:   Noah Bolmer, Round Table Group

Guest: Gerry Christensen, Founder of Wireless Waypoint and Mind Commerce

Transcript 

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and today I’m excited to welcome Mr. Gerry Christensen to the show. Mr. Christensen is the founder of Wireless Waypoint, a consulting firm specializing in wireless technology solutions and applications, and Mind Commerce, an information and communications technology strategy company. Additionally, he’s the head of partnerships and regulatory compliance at Caller ID Reputation, a technology-driven service company that helps businesses maintain the integrity of outbound phone communication systems. Mr. Christensen is a sought-after expert witness and holds an MBA from Auburn. Mr. Christensen, thank you for joining me today on Engaging Experts.

Gerry Christensen: It’s great to be here, Noah. 

Noah Bolmer: You’ve been working in information and communications technology, also called ICT, for over 25 years. Did you first become involved in expert witnessing?

Gerry Christensen: As a matter of fact, I need to update my bio because it’s been over 35 years. Your listeners can’t see my gray hairs, and I’ve earned all those gray hairs. I got involved with it sort of circuitously. I’ve always had a day job, per se, not like a professional expert witness. I know there are some folks out there that that’s all they do. It’s always been sort of a side gig for me, And as I recall, the way I got involved with it initially was a book that I had written. Someone had read the book, and they had a particular problem. I’ve gotten some jobs as a result of that sort of thing as well, like working for a startup company. This one particular instance, it was a case involving intellectual property where one company was suing another one, saying you’re infringing my patent. I had written a book about prepaid wireless, so somebody reached out to me and said, “I think you know a lot about this topic. Would you be interested in consulting for us and perhaps even being an expert witness?” That’s how I got involved initially. 

Noah Bolmer: Did you know that expert witnessing was a thing at that point, or was it an out-of-the-blue request?

Gerry Christensen: It was someone out of the blue. I knew it was a thing, but it’s not the type of thing I ever thought of doing as a career or even as a side gig. I just stumbled into it, to be honest.

Noah Bolmer: What was that first phone call like? Was it the attorney, an assistant, or a paralegal?

Gerry Christensen: It was an attorney, and it was directly with the firm. Fast forward, I work with a lot of brokers like Round Table Group that broker these conversations. The way that goes is you talk to Round Table Group first, and they clear conflicts, and see if you’re appropriate. Then you talk to the attorney, but this was the other way around. I talked directly to the attorney. Initially, it was kind of an ego boost, I guess you could say, because he found me and said, “You’re an expert in this area.” In that first call, I had a lot of useful things to help them out. From there, we got into the logistics of getting engaged, moving ahead, and helping with the case.

Noah Bolmer: During those first phone calls, what were the vetting questions they gave you, and have those changed over the years? You’ve been doing this for a long time.

Gerry Christensen: Initial vetting questions are typical. First, they speak with you about the matter, whatever it is. That first one was an intellectual property dispute, but there are different things that come up. Typically, the first thing is they want to clear conflicts. That’s always a good idea. They’ll talk about the different parties involved, oftentimes even before you know the specifics of the matter, because they want to make sure there’s no conflict of interest or anything like that. We did that, and we talked about the matter itself, and I think during the call or shortly thereafter, they sent the patents to me and some other materials. That’s typical as well, as you’ll not only get a copy of the complaint itself, where the plaintiff and the people that are involved on that side are talking about what their concern is. And then you read that and any other supporting material. From there, you move to an agreement if you both think that there’s a good fit there because you want to read all that stuff. You want to make sure that there is, in fact, a fit. You don’t want to make assumptions. Then, if both parties agree, you sign an agreement and move ahead as a consultant and or an expert witness. By the way, there is a difference between a consultant and an expert witness. An expert witness is a person who can testify in court or in live arbitration, which I’ve done. A consultant can be behind the scenes and never testify in court, do an affidavit, or a deposition.

Noah Bolmer: Do you have a preference for being a consulting expert versus a testifying expert?

Gerry Christensen: I don’t have a clear preference. I’ve done both. Being an expert witness means you will have to testify most likely. You’ll have a deposition, which, for people that are not familiar with that, is you attest to the fact that you’re going to tell the truth as you know it. You’re offering your opinions based on your expertise, and you don’t want to deviate from that. It’s recorded, and there’s a transcript. The same goes for an affidavit. That’s a written document that you write down that’s submitted to the courts. One thing that I have not yet experienced is live court testimony because it seems every case I’ve been involved with always settles before it goes to court. I guess that’s a good thing because it saves some money, but I do have experience with providing live testimony with arbitration. There’s an arbiter in a case. I do have that. As a consultant, you don’t have to give testimony. You’re behind the scenes, and I would say that both have advantages and disadvantages. I don’t have a preference for either one.

Noah Bolmer: You mentioned arbitration. How is alternative dispute resolution, like arbitration, different from a jury trial for an expert witness?

Gerry Christensen: First of all, arbitration comes up when it’s written into some kind of a contract. The case that I was involved with had live testimony with arbitration. There was a contract dispute, and I believe the way the contract was written was that rather than going to a jury trial, they would resolve it via arbitration. Typically, that’s how you get there. I would imagine that even if it’s not written into a contract, you could still wind up with arbitration if both parties agree to it. Both parties don’t have to agree to it. Typically, it’s cheaper, and it’s easier. It’s resolved more quickly because court cases can drag on and cost a lot of money for all the parties involved.

Noah Bolmer: In an arbitration, do expert witnesses still do things like write expert witness reports?

Gerry Christensen: Absolutely, as a matter of fact, an expert report that’s written on the plaintiff side, that’s asserting some type of a position. Then, if you’re on the defendant’s side, you have an opportunity to write a rebuttal. All that information is submitted to the powers that be that are involved, and ultimately to the court itself. It goes to a jury trial or to an arbiter. They have a chance to review that prior to any interactive questioning that they might have at the actual live testimony for arbitration. All those things are very important.

Noah Bolmer: Let’s back up a bit. You had mentioned depositions. What is your preparation for something like a deposition could be quite long and quite grueling. How do you get yourself in the right headspace, prepare, and be ready to go for a potentially difficult deposition?

Gerry Christensen: First of all, prior to a deposition, you would have most likely done some things, such as developing an expert report and having quite a few conversations with the attorney on the side that you’re working with. Basic prep stuff like reviewing the facts in the case. Reviewing opinions that you’ve already offered as part of your testimony. You might talk about things like what sort of questions the other side might ask, and that’s basically it. Other than that, it’s just showing up being relaxed. and making sure that you offer informed opinions that don’t stray away from the case. That’s important. Speculation is never a good idea, and you have to stay within the boundaries of your expertise and the facts of the case. Usually, just general common sense prep work.

Noah Bolmer: Have you been in situations where the other side is trying to impeach your credibility, be that through something like a Daubert hearing or some intense depositions where they’re saying this person isn’t actually an expert? Look at this. They contradicted themselves once and things like that. If so, how do you handle those situations?

Gerry Christensen: That kind of stuff happens all the time, and most of the time when they’re trying to do that to you, they’re professional, and they’re not rude. It’s low probability that they’re crass when they do that, but some of those are the ones that are the more dangerous because they’re trying to act like they’re your friend, but you always have to remember, they’re not your enemy, but they are your opposition. You need to be cognizant of that. In terms of Daubert rulings, I’ve only had that happen once. It was an interesting case, and hindsight is 2020, where I was requested to opine about a particular piece of software. In retrospect, I wish I hadn’t opined about it because I didn’t get to see the actual source code, and I did put in writing an opinion about it. The Daubert ruling in that instance was that my testimony was not allowed, and the court said the reason why it wasn’t allowed was because I didn’t actually review the source code. I have reviewed documents related to the source code, and subsequently, I think I have better strategies for dealing with that because that one could make a strong case to the court that specifications and things that are involved in developing the source code are almost as good or just as good as the source. In that particular case, I did have a Daubert ruling. They didn’t say I wasn’t a good expert. I’ve never had anything like that happen, but my specific testimony relative to the software was not allowed in that particular ruling.

Noah Bolmer: That sounds like a bit of a difficult situation, but it’s also a learning experience. Do you have any cases that served as major touchstones in your career as an expert witness?

Gerry Christensen: I have a few of those, and one that stands out in my mind in particular was I had one case where we did a mock trial, and again, I haven’t provided expert testimony in a trial only because they always settle. Ironically, this particular one also settled, but we did a mock trial, and I thought I was ready for it. They did a good job of putting me under the hot light, so to speak. I have to admit that, on that particular one, I was not ready. Some of the typical things like “Don’t say too much. Stick to the facts as you know them.” And when they throw you a curveball that doesn’t make any sense, it’s okay to say, “I’m not following you. It doesn’t make any sense.” There will always be an opportunity to clean it up on the cross where the attorney on your side will- you know, if you’re getting confused, they’ll clean things up a little bit. I think on that particular one, I got a bit frazzled, but I definitely learned a lot from it. The main thing there is to be calm, collected, and keep your answers accurate and complete, but not too long. Don’t stray from the particular question they’re asking. Don’t try to be- one of the mistakes that experts make in any kind of testimony is trying to be too helpful. You try to answer the question that you think they’re asking. One of the tactics that’ll often happen is they’ll ask the same question, maybe two, three, or four different ways, and as an expert, I guess it’s like human nature. You want to try to be a good person if you’re so inclined. But it’s not a good idea. What you should do is kind of stick to the script. Stick to what you’ve already said. Stay within the boundaries of your expert report, for example. If they try to lead you down a particular area, you should always respond because that’s important. But again, if they get you off track, if they’re trying to trip you up, the attorney on your side can always clean that up on cross-examination.

Noah Bolmer: You have a lot of great advice regarding going to a trial. Is this stuff that you picked up during the mock trial, or are these things that the attorney first told you? “You want to be X, Y, and Z.” They prepared you for the mock trial and then used the mock trial to test how well you are retaining that.

Gerry Christensen: It’s a combination of everything that you just said, Noah. It’s not only the mock trial itself, which is that particular case for me, was a bit more of a high-pressure thing because they were definitely trying to throw me off in a big way. I wasn’t expecting that. That was somewhat early on in my expert witness and consulting career. I would say, generally speaking, all of the other testimony work that I’ve done, mostly the depositions, similar things come up where they try to throw you off. I’ve read some good books. I’ve had some good coaching and discussions with attorneys. I feel much more confident than I was, say 20 years ago, in a similar situation. 

Noah Bolmer: Let’s talk about relationships. How do you get started on the right foot with an engaging attorney? What are the factors that go into building a positive expert-attorney relationship? 

Gerry Christensen: I would say there are a lot of the same factors that you have with any business relationship. The important thing to keep in mind is that, at the end of the day, it’s a business relationship and that you need to keep it professional. I would say having certain pleasantries is important.  After all, part of the human condition is that we need to connect with one another. At the same time, though, recognizing that it’s a business and that the attorney on the other side, they’ve got their billable hours, and they’ve got [many] other cases, and you need to make sure that you serve them in the best way possible. Be as efficient as you can. Don’t waste their time. That helps you earn their respect. If you’re somebody that’s been an expert witness on quite a few cases like I have, they probably already assume or already know from references that you’re good, helpful, and efficient. If you’re earlier on in your career, building up that reputation is important. They know that you’re somebody that’s going to help them get done what needs to get done and not waste their time.

Noah Bolmer: On the other side of that coin, what can attorneys be doing to satisfy the needs of their expert witnesses? What are the things that you like to see from an attorney?

Gerry Christensen: One of the things I like to see is talking about processes and procedures. The expert report is a good example. One of the things that often comes up when you’re planning for that is the attorneys, [many] of them will ask you what is your preference as an expert? Do you like to write it completely from scratch, or do you like to start with a template? I’ve worked both processes, by the way, both ways. Both have advantages and disadvantages, but at the end of the day, you, as an expert, own your testimony. Whether [you] start off with a template which is based on conversations that you’ve had, facts and opinions that you’ve discussed on the phone, and put that into a template. Then you review that, edit it, and clean it up if necessary. Whether you do it completely from scratch, you own that. Getting back to your original question, one of the things I like to see is for the attorney, to a certain extent, to ask the expert how they do things and what [their] preference is for working. I always like to have an attorney ask me that.  

Noah Bolmer: Absolutely. Then, you can be flexible in your approach, whether you’re working from a template or working whole cloth. There’s another relationship that sometimes occurs on larger trial teams, which is with other expert witnesses. Perhaps there are paralegals. There might be a consultant coming in to do a mock trial, something like that. Have you worked on trial teams that have other moving parts that you’ve had relationships with, and if so, what are the important factors in those relationships?

Gerry Christensen: Yes, I have. Oftentimes, you have to work with the paralegal, and what they’ll do is they’ll work with you on the basics of how things are going to play out for that particular day. If it’s a mock trial or if it’s maybe a discussion about planning for the proceedings of the court, because oftentimes things change and you have to be flexible. Knowing who’s who. Who to contact, and again, that gets back to being mindful of the attorney’s time because they’re working on not only your case, but they’re also working on many cases. Sometimes dozens of cases. Knowing who’s who, who’s working on what, and handling those blocking, tackling, logistical-type things with the right person is important as well. 

Noah Bolmer: Do you have any specific software techniques that you like to manage your schedule? You said that you’re not a full-time expert. This is a side job for you. How do you keep track of where you need to be when everything needs to be done? Your logistics. 

Gerry Christensen: What I found, at least for myself anyway- Again, this is not my day job, and it doesn’t [always] take up a significant amount of my time. It’s kind of feast and famine for me. When there’s an active case and there’s a lot going on, then, yeah, that’s more of a challenge. I use the typical CRM tools to do that, but I’ll often go for long periods of time where I don’t have things going on with the case. Your listeners out there may find themselves in that type of a situation as well where maybe you’re scheduling some initial discussions about a case, and they might get back to you later and say, “Thank you very much for your time, but we’re going in a different direction.” That happens a lot by the way. There’s a wide funnel where you spend a lot of time talking about a case, and for whatever reason, they don’t select you, or the case settles before they even get an expert. You have to manage your time on the front end with a lot of that. It’s more when you get into the case, and there’s a cadence of things that you’re delivering, you have to manage your time more carefully. 

Noah Bolmer: Have you had to say no to a significant number of potential engagements? 

Gerry Christensen: I wouldn’t say a significant number, but I definitely have to say no, and some of that is because I have an actual conflict. Sometimes, I don’t have a conflict, but I just don’t want to be adverse to a particular party. Whether that’s for my day job or how I feel about them. I mean, again, the human condition. We do have feelings about things. It’s not all black and white, so I have had to say no. Maybe, on rare occasions, I had an ethical dilemma, either with a plaintiff or a defendant, where I thought that what they were doing was outright wrong, and I would deny that. One case does come to mind. As a matter of fact, it was a case where I didn’t know all the facts because I hadn’t gotten into it. I had a hard time not forming my own opinion about the case. It involved wrongful death or somebody that was hurt involving a trucking company or something like that. I morally couldn’t do it. I could have probably made a lot of money, but I saw myself in the shoes of the person that was harmed, and I couldn’t get past that. That’s good advice for your listeners as well. If you can’t take your emotions out of it, then don’t do it because you’re supposed to be dispassionate, and I couldn’t do that, so I rejected that case.

Noah Bolmer: Neutrality is job one for an expert witness. You’ve brought up conflicts a few times. What are some of the more standard types of conflicts that you have to be wary of as an expert witness when you’re considering whether or not you should take an engagement? 

Gerry Christensen: An obvious one is if either party is a customer because obviously, even if there is unconscious bias there, the other side could claim bias. Even if you’re not causing harm one way or another because you’re not biased, they could claim unconscious bias. That could cause you to either lose the case or lose your own credibility because if you took a case when there could be a claim of unconscious bias, that hurts your own reputation as an expert and might keep you from getting other cases. That’s one of the things you need to look out for. 

Noah Bolmer: When we first began our discussion, you brought up the Round Table Group and how that has changed the way that your initial phone calls go because some of it’s been pre-vetted. In general, have you found expert referral agencies like Round Table Group to be helpful to your expert witness practice?

Gerry Christensen: Extremely helpful. Some folks that I’ve talked to that never use them say that it’s because they prefer to be able to charge more because, of course, there is some overhead there understandably for the valuable service that Round Table Group and others provide. I would say, at least in my own personal experience, that’s far outweighed by the volume of opportunities that are brought to you. I don’t know exactly how this works out, but I can just imagine there [are many] law firms that also want to save time. They don’t want to go through LinkedIn and try to find the right expert for themselves. They [would] rather contact Round Table Group. It’s all about leverage. 

Noah Bolmer: Sure.

Gerry Christensen: In my experience, it’s a good thing, even though, understandably, the funnel is quite wide at the top end. You’ll have lots of conversations that don’t lead to anything, so it’s somewhat of a numbers game there, but if you’re not having those conversations that wide part of the funnel, then you’re not going to get engaged at all. That’s why it’s important.

Noah Bolmer: Do you have any terms that you like to insert into contracts to make sure that you’re paid? You said that all or most of your engagements have led to depositions? For instance, have a non-refundable retainer to make sure that you make some money in case it goes to settlement.

Gerry Christensen: I go back and forth on that, to be honest. I’d prefer on all of my cases to have at least something upfront. The proverbial skin in the game because you’re right that does happen more often than you would like, where you get retained and you have little or no billable time because you’re in this perpetual holding pattern that settles or whatever. Sometimes, you have to say, okay, I’m not going to ask for a retainer because maybe the end client is not willing to do that. But I would say to your listeners out there, if you can get at least a small retainer, that’s a good idea for the reasons I just stated. The other thing that I’ve heard happens is sometimes, either on the plaintiff side or the defendant side, they might want to lock you up if they see that you are a valuable person that could be on either side, even if they don’t know if they want to use you or not, they might want to retain you, get you under protective order and all that stuff and then you can’t do anything. I’m not saying that everybody does that, but it’s possible and that’s also one of the reasons why you want to ask for a retainer.

Noah Bolmer: It’s certainly something that I’ve heard from other expert witnesses as well. Do you have thoughts in general on the importance of expert witnesses? Why is it important that there are experts? Why is the work that experts do important for jurisprudence overall? 

Gerry Christensen: Again, it gets back to the commonsense thing that you need to have a neutral, dispassionate party that knows something about the subject matter because all the other parties have a vested interest. Each of the sides has a vested interest in winning. The defendant side has a vested interest in getting out of whatever the dispute is, and the plaintiff side has some kind of recourse that they’re looking for. The expert doesn’t care who wins. What we care about is our reputation, our credibility, and being able to put forth what we believe are the facts of the case and base our opinions on the facts, and that’s it. It’s crucial, I would say, not only for the parties I just mentioned, but if it goes to a jury trial, it’s important for the jury to be able to hear that testimony because they may be listening to that expert more than anybody else. The same goes for the judge. 

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses, newer experts in particular, and attorneys who are working with expert witnesses?

Gerry Christensen: I would say a few things. One thing is to continuously take a look at your background, your skills, and your expertise, and then update that with somebody like Round Table Group or whoever you’re working with. Keep that up to date on LinkedIn. I’m kind of preaching to the choir. I try to do that as much as I can, but there’s always more that I could do there. You never know what might get interest in terms of your background or what you’re retained to do. For example, I’ve been doing IT and telecom for 35 years, but the last five years, I’ve been focusing more on the Voice Over Internet Protocol System and specifically business to consumer contact. I focus on both sides of that, protecting the consumer part as well as making sure that calls go through to consumers from legitimate enterprises that are following all the rules. I keep my LinkedIn profile up to date on that.

Getting back to your previous question, sometimes I have to turn things away. As a matter of fact, there was a case that came up recently where what they call a non-practicing entity, some people refer to them derogatorily as patent troll. There was a non-practicing entity that was claiming that some of the carriers were violating their patent that had something to do with this thing called Stir Shaken. Now, I’m not going to offer my opinion here for your podcasters, but I decided not to be any part of that because I thought I definitely didn’t want to be adverse to the carriers, that’s for sure. I thought that might be sort of a thorny thing to get involved with. Sometimes, you just have to turn things away. That was an instance where keeping my LinkedIn profile up led to somebody reaching out to me directly, but I just turned it away because I didn’t want to be involved with that. I would say, getting back to your original question, keep your skills up to date. Make sure that it’s out there and be prepared to have a lot of those top-end-of-the-funnel conversations because you don’t know which one of them is going to lead to your involvement in a case.

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

Gerry Christensen: Thank you. It’s been great to be here.

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

Gerry Christensen, Founder, Wireless Waypoint and CEO, Mind Commerce

Mr. Gerry Christensen is the founder of Wireless Waypoint, a consulting firm specializing in wireless technology solutions, and Mind Commerce, an information technology and strategy firm. Additionally, he’s the Head of Partnerships and Regulatory Compliance at Caller ID Reputation, a technology-driven service company. Mr. Christensen is a sought-after expert witness and holds an MBA from Auburn.