In this episode…

Our guest, Mr. John Catlett, advises a “three-p approach” to depositions and trials: “prepare, prepare, prepare”. Needing to refer back to your report as little as possible, establishes an air of preparedness and authority over the material and shuts down many of the opposition’s potential avenues of attack. There can be long delays between writing reports and depositions or trials, so Mr. Catlett recommends rereading case materials as important dates approach.

Be sure to check out the entire episode for tips on vetting, getting experience in the courtroom, and shifting expert roles.

Episode Transcript:

Note:    Transcript has been lightly edited for clarity.

Host:    Noah Bolmer, Round Table Group

Guest:  John Catlett, Owner at J.D. Catlett Consulting, LLC

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome John Catlett to the show. Now Mr. Catlett owns a full-service building and fire code consulting firm with expertise in management, training, proposals, implementation, compliance, and more. He has a range of experience spanning over 30 years, including as a fire marshal, maintenance code official, and building plan reviewer. Mr. Catlett, thank you so much for joining me today at the Round Table.

John Catlett: Well, thank you for inviting me.

Noah Bolmer: Of course, let’s jump into it. You have certifications too numerous to even mention in building code, fire and EMS. Tell me about your background and how you first became an expert witness.

John Catlett: Well, actually my background- I started in local government. [I] actually started as a trade technician. Believe it or not, I didn’t- never thought that [I’d] end up touching building codes. [I] was an electrician actually and went in the fire service, spent some time in the fire service, and at the same time I was working in some part-time areas as a building inspector, and from there it kind of went on. I ended up getting out of the fire service due to an injury and moved into the code stuff full time and ended up retiring as the Director of Building and Fire Codes in Alexandria, VA.

Noah Bolmer: No kidding, and how did that lead to kind of a career as an expert witness? What was the first time that you got a call? Was it out of the blue? Was it something that you were looking for?

John Catlett: Okay, let’s talk about that vetting process. When you first get those calls- you first take those calls. It’s obviously not the attorney, or whoever’s engaging you vetting you. but it’s you vetting them. What are the things that you look for and what are the things that they’re looking for?

Noah Bolmer: My typical client has been one in which number one, they go in understanding. I am not the kind of consultant that will make your case. I will look at it and will provide you [with] a truthful statement. If I can assist you on your case, I will assist you, and if I can’t then I will tell you so and most of the- of my clients that I’ve actually taken on have said that’s what we want. We don’t want to go into a court proceeding having somebody trying to blow it up a little bit and make it something more than it is, only to find out that we’re going [to] get picked apart by another consultant. So that’s one of the leading edges for our company is we take no cases unless we truly feel that the code has been violated or there is a good reason for us to be involved.

Noah Bolmer: Besides the specifics of the case itself, how do you determine whether your particular niche of expertise fits the specific case that you’re being presented with? Do you sometimes have kind of edge cases that you need to do a little bit of extra research on. Tell me about that process a little bit.

John Catlett: Yeah, absolutely. I’ve actually got involved with some like public works, related type cases and again, my background was building a fire code, but because I did start off in the public works sector, sidewalk cases, injuries due to falls, things like that, I didn’t initially feel like I was the appropriate expert. Then when I started researching the cases I said, “Well, heck yeah, I can do this. This is definitely something I was involved with at certain times of my life.” and I believe for most consultants, that’s what you [have] got to do. You have to draw back on your whole life experience and if you do that, then you can successfully kind of branch out a little bit more than what you maybe have been focused [on] in the last 10, 12, 15 years. And I really feel that I had some great people that gave me great opportunities in my earlier careers that really kind of formed the basis for what I can do now.

Noah Bolmer: What sorts of preparation do you do once you’ve accepted an engagement? Obviously, you have to write a report. You have to get a whole bunch of documentation from your attorney. Walk me through a typical engagement.

John Catlett: Most of the [engagements] I have required at least a site visit depending on where it’s located. A couple of them [I] have been able to do based on pictures and maybe a specific question. I recall one that dealt with [the] anchorage of a maintenance ladder on the building and so I didn’t need to physically look at it, they provided me the pictures and the question came down about the fasteners that were used. But in most cases, you’re going to go on site. You’re going to spend some time looking over the total building and the reason I say you look at the total building is you might be focused on a fall injury, or a partial collapse in a building, but you also want to get a general feeling about how they, especially if it’s a building that recently went through some sort of alteration or the change of use and one in particular, was the change of use from warehouses to residential. It was loaded with code violations that had nothing to do with the case I was working on, but it gave me the background that let me know that these folks weren’t looking to be fully compliant and work in that area and try to make sure things are okay. Make sure that you don’t keep your focus to the immediate thing that you’re doing. Secondly, document, document, document. You want to make sure that you take plenty of pictures, take more than you think you will ever need. Make sure that you go back, and tie it to the appropriate area of either the code in my particular case or if you’re a consultant in another area, whatever your field is, it’s opinions are great and I can base a lot on opinion sometimes because I did have about 35 years of experience in local government doing this stuff. But opinions don’t go very far. Judges want facts, and I think once you get into a courtroom, you will realize that if you sit there, with a lot of opinions, people can pick apart your opinions, but if I show a hard and fast this is the code, this is what it violated and that’s it. The judges typically will not. You are as good as gold at that point.

Noah Bolmer: Have you done work for both the plaintiff and defendant side?

John Catlett: I have. It’s very interesting. One of the very first cases I worked [on], I actually received four other cases from the attorneys that were involved on the other side, and it was very interesting that you end up going into that realm of- especially when you’re dealing with people that- maybe trips and falls and things like that. Some of this does come down to things like you have to be aware of your surroundings, and I advise my clients a lot of times to make sure you understand that just because there’s something and they fail doesn’t mean there was a problem and I think that’s one of the things that you want to make sure there’s clarity with your client. Typically, it’s an attorney. There have been a few cases where I’ve worked directly for the plaintiff. Actually, [I] was hired on one and then [he] brought his attorney on board. And then I do case- I do other work that is outside of anything involved with legal aspects. I would just advise anybody to treat everything you do the same because you never know- and you think it’s not going to be something that’s litigated. The next thing you know, there’s litigation, and even if you’re doing an advisement on something, I’ve sat at tables where somebody said, “Well, if we can’t get this figured out, we’re just going to go to court.” Uh oh, well, guess what? You want to make sure you [have] treated it the very same way that you would if you were going into it knowing that it was litigation.

Noah Bolmer: Yeah, you bring up a good point. There’s two types of expert witnesses. There’s your consulting witnesses, and then there’s your testifying witnesses. But sometimes that line might be a little fuzzy and one might become the other. Is that something that’s happened to you with some frequency?

John Catlett: Absolutely. The one case that [I] was mentioning earlier, the ladder issue that was about a very specific part about something that happened. The ladder had come off a building and someone had fallen and got severely injured, and it was a maintenance ladder that was to be permanently affixed. Well, I was dealing with the issue of the bolts, and so I was the consulting person in that role. However, if it went to trial and this one did not, I would probably have end up going in and actually testifying about what my findings were. Sometimes you can start off kind of as a consulting witness and then next thing you know, you’re involved in- you’re actually being deposed or you’re actually in front of the judge

Noah Bolmer: Along the same line, there are obviously- you’ve worked both for plaintiff and defendant, and as you know, there are both initial reports and rebuttal reports, which often tie in with whether you’re on the plaintiff’s or defendant’s side. You said that you take the same approach whether you are a consulting witness or a testifying witness. Do you take a different approach in your report writing on whether it is an initial report or if it’s a rebuttal report.

John Catlett: Typically, the initial report is going to be more thorough, and again, that’s why I said take plenty of pictures, take lots of notes. You want to make sure that you’re very thorough in your initial report. What you will find sometimes is you will be going up against other consultants that are hired on the other side to pick apart your report and so, it has to be as solid as possible. I would just warn anybody who is in the business to just make sure that you treat them kind of both the same and typically in rebuttal, you’re going to be focused on specific things. You may be rebutting them and their initial report or they- you may be doing a rebuttal to their rebuttal of your report. A lot of times at that point then you can be a little more focused and detailed than what your response is. But initial reports are normally very broad and very focused and then from that point forward, then you do get kind of get into that. I will call it litigating without the judge.

Noah Bolmer: Do you have a couple of stories that you can share of engagements that somehow impacted the way that you view or approach expert witness work?

John Catlett: Absolutely, and actually was something that when I initially got into the business, I said I probably would not do and I would probably not get involved with litigation cases. The very first case I was asked to be involved with involved an injury, a young woman in her 20s had fallen five stories in a building through a shaft that she should have never had access to and I was so compelled by what had happened to her, she ended up being a paraplegic from that point forward and with this particular attorney, I have a great relationship with them. Now I’ve done several cases for them now, nowhere near to this level. This one was a multi $1,000,000 case, but I remember going into deposition and the attorney saying to me “Have you ever been deposed before?” And, I said, “I’ve been deposed, but never as a consultant. Normally, been from the governmental side.” She was so nervous and there were 4 attorneys for the other side. I mean, it was one for each entity and then for the insurance companies. When I got done, I came out and she came and hugged me so hard and said, “I have never heard such a good deposition in all my life. You nailed. It.” and a week later settled. And so, I really again kind of felt that even in that regard being it was my first time around, I really did not feel nervous. I felt I was there to tell the truth. If you don’t put yourself in a bad situation, meaning that you’ve stretched what you feel your findings are, you can always feel comfortable going in. And if you’re comfortable, then you’re going to nail it. I mean, plain and simple. There’s nothing they can do to pull you off track, and they will try their best to pull you off track and they- you just- all you do is you go back and say, “You mean except for this one issue and then they stop, and so it was a really good case and from that point, it’s really gotten simpler. I will just advise everybody that when you’re dealing with a case that the attorneys [are] kind of feeding you information, make sure they give you everything. I did get stuck on the stand once in a situation where there was a document produced and I had not seen it and I really couldn’t answer for it. It wouldn’t have changed the outcome a whole lot, but it was bad to be sitting on the stand and saying, “I had not seen this document and the question that you asked me, I would have to answer yes to.” However, and then what it turned out to be it was taken out of context. The document was something that really shouldn’t even have been into. But the attorney came to me after and said, “That’s my fault. That’s my fault. I should have given that- I should have gotten it to you and we should have discussed it.” Just make sure that you think about asking those kind of questions to your client. “Have you given me everything? Is there something that could come up that I haven’t been prepared for or you haven’t prepared me for?” If that happens and occurs, you just have to figure out the best possible answer, including, “Your Honor. I just- I don’t know. I have not seen this document before.”

Noah Bolmer: You recommend a fairly proactive approach with your hiring attorney. You like to ask them lots of questions and make sure that you’re well prepared.

John Catlett: I do, and I stay in regular communication with them. If the case gets kind of put on the back burner for a while or if it’s a long time out, I don’t bug them in between, but when it gets closer to the time, if I haven’t heard from them, “I’m like where are we? Are we ready to go? Are things ready to happen?” And in some cases, “Oh, we already settled that one. Sorry.” And then some days they’ll come back saying, “Glad you got ahold of me. You’re on my mind and my to do list.” And you want to kind of to some degree drive the timing a little bit, because if somebody waits till the last minute, no matter what you’re doing, whether it’s getting ready to go on a trip or doing consulting and dealing with attorneys, you don’t want to make your planning at the last minute because that’s where mistakes get made.

Noah Bolmer: I’ve heard from several witnesses that they wish that their engaging attorneys would do- would start that engagement a bit earlier. Have you been in situations where you felt a little bit rushed to get everything together?

John Catlett: I have not too frequently, because again, I have been very fortunate to have some of the same clients come back to me and so we have a good working relationship and again, I don’t feel funny about picking up the phone or sending them a text message or something. I’m always careful to make sure that nothing goes in an e-mail or text that is discoverable. It could be a simple question. “Hey, do you have a few minutes?” I mean, “Could we chat?” or “Have you heard any more about a date on this case?” and then that will start a conversation where you can be a little bit more open, but yeah, like I said, I think it’s important that [I’m] not bugging– Every attorney has got probably a big caseload out there and if they’re dealing with the kind of cases where they’re getting you involved, they’re not just sitting around waiting for an ambulance to pass by. What I have found is don’t be afraid to remind the attorney that you’re still out there and that “Hey, I want to make sure we get this in and get what you need as soon as possible.”

Noah Bolmer: Sure, exactly. Since you’ve had positive engagements on depositions, tell me a little bit more. I want to dig into that a little bit more what makes a good deposition? What can you do as an expert witness to make sure that process is as stress free, which I’m putting in air quotes as it possibly can be and how do you deal, especially under a situation like cross-examination with the kind of inherent stress and some of the opposing attorney’s tactics that they’ll use to throw you off a little bit?

John Catlett: Yeah, it does happen quite frequently. Again, I think it goes back to being solid in your knowledge of what you’re doing. Preparing, preparing, preparing the three P’s. Making sure that you don’t try to remember what you wrote three months ago, the day you’re sitting in a deposition. You want to make sure that you have the week prior, that you’ve gone back through these things because a lot of times these cases get dragged out and from the point you did your initial report to the time, you’re in depositions could be 18 months later. And so, it’s very important that you even sometimes, even without anything going on, particularly with the case, pull it out, look through it again, refresh your memory because the more you do that just like with anything is how we learn? If you go into a case and say if you look on page five of my deposition without going to your deposition- or mean of my report without going to your report, they’re going to look and go. “Holy crud, this guy’s prepared.” And so, I have really found that the way a lot of attorneys will try to pull you off is to make partial statements about something that you would put in your report. You’ll come back and I’ll say it because of course center on record and they say it and what I’ve been able to do is go back and say “Yeah, you’re right in your statement. But if you read my entire statement out of my document, this is what it says.” and it generally shuts them up. I mean at that point [there is] not a lot of recourse when they do that and you can typically see when the opposite side has gotten the consultant and the consultant feels it’s their job to make their case, no matter what. In those cases, it’s so easy to pick that apart. If you’re solid in your knowledge, you’ll sit there and see it in my particular realm and field dealing in building a fire code, it’s kind of like a lot of people get home inspections done and a home inspector puts everything out there on this report the thing is that the code would not require you to meet all those requirements. You know they’re taking the latest code and saying, “Well, I should have a GFI outlet in the bathroom.” and I could- I would take that report and say, “Nope. The only thing I got to have is this and the things that are required in the maintenance code.” And so, what you want to do is- you got to be careful because people will do that. They’ll try to pull a newer version of in my case it’s building codes and they’ll sit there and say,” Well, the 2021 code says this.” Yeah, but this thing was built back in 1986 and so we can’t use the provisions from there and it’s really just interesting to see how unprepared sometimes the other consultants can be.

Noah Bolmer: That’s a really interesting point. You have a- with such a vast expertise, surely there’s a lot of code and a lot of it must change like you just said from the 80s to the 90s to now. How do you stay on top of all of that? What does it mean to remain an expert in your field? Are you constantly just researching? Do you attend classes? Do you teach classes? What are the methods that experts not only in your field but in general should be doing to enhance and improve their own expertise?

John Catlett: I’m fortunate because again, when I first came into the consulting business, I had just come out of local government being an enforcer. And for probably the last 25 years or so before my retirement, I was heavily involved both in the State of Virginia level, and also [at] the national level in code development. I served on code committees. I was one of the people that you brought code changes to and whether [i] approved them or not. I wrote a lot of code provisions in the State of Virginia and that kind of helps and that’s what a lot of my other side of the client base is. I do that kind of building code and fire code. I submit things on their behalf. I defend things on their behalf and that keeps you in the code. I mean, when the code is constantly changing, the best way to know is be involved in the code development process, because then you are there when the discussions happen. It also makes it a little bit better too as you move along because sometimes you can take things you’ve heard in testimony at the code development hearings and use it as part of a court [case], and if the line in the sand was drawn here, but really it didn’t make a whole lot of sense being [a] 1/2 an inch this way or that way really doesn’t matter all that much. And sometimes you can bring that level of expertise in that someone else who’s not never been involved with that doesn’t have. They don’t know the background. They don’t understand how codes are developed.

Noah Bolmer: One of the other things that you mentioned that I wanted to follow up on was you said, prepare, prepare, prepare, all the 3P’s. What sorts of specific preparation methods, other than what you obviously said about making sure that you’ve read recently? For example, do you do mock cross- examinations or anything like that?

John Catlett: I have in the past, depending on the attorney and the size of the case. First when I was involved, we did do some of that kind of prep. I was very fortunate that back in my days when I was a local building and fire code official, the State of Virginia had a great program. It was called an Advanced Officials Module and one of the things we did was a courtroom and so we were- we did- we were taught about it and everything else. And then we actually went into a courtroom from one of the counties around Richmond and we had a mock trial and so there’s lots of ways to do it, whether it’s specific to the case or not. I know I would say for anybody who has never been to court, they probably should do something like that. Have some sort of preparatory training about what to expect. What happens when somebody objects and do you shut up or you keep talking. I mean, it’s just simple things like that. If you’re not familiar with how courtrooms work, you can get yourself in trouble and at the same time, you also don’t want to say something that your attorney doesn’t want you to say and so that’s sometimes when they will object for you and make sure that things stay on track.

Noah Bolmer: One of the things that I’d like to pivot to before we wrap up is, positive experience is what makes you and the attorney a good team. You mentioned a few things. You said that attorneys prefer when you’re there to essentially tell the truth, not to be a cheerleader for them. What are the other things that make a positive relationship that you’re going to get repeat engagements [and] are going to help them on their case as much as possible.

John Catlett: I kind of find the same thing with attorneys as I used to feel about local elected officials when I was in local government and that is sometimes it’s better to tell them, “You step away from this one.” Sometimes you will end up with a situation where you’ve got an attorney, sometimes they’re not as experienced as most of the ones that I deal with and sometimes you get an attorney- and I’ll bring you a case and you’ll sit there and say, “Well. I’m just going to tell you there’s not much I can do for you because there’s really not much you can do.” And what I have found from the attorneys that I work with [is] they value that. They want me to tell them that because they don’t want to go down a path and think that there’s something there, that’s not there, and they don’t want to promise a client that they’ve got something that’s not there. And so I have found that the relationship I have with just about every one of the attorneys I’ve ever worked for is, if they call me up with something, I sit there and I say, “This is a freebie.” And being their friend [say] that, “You don’t have anything here” -really be truthful. “We can’t make a case out of that. We’re just not going to get there.” And a lot of times they will sit there and say, “Thank you, send me a bill.” and [I’ll say], “No. I’m just telling you right up front, I don’t think you got anything.”  And then [in] just about every instance, they’ve let me know, “Yeah, we’ve dropped this one. We’re not going to go after it.” If they were to have continued on and get somebody else, that would make me feel like I had not done value to them with the services I offer. I’m only going to tell you that if I really feel like again, there’s just no avenue for you to take your case where you think it should go.

Noah Bolmer: Does that typically come up in the initial call?

John Catlett: Yes, yes. And again, most of the time when I, especially with the- my repeat customers or my folks I’ve done multiple work for it comes up. They know how I’m going to act or react. I will actually do- normally do my initial research and say, “Give me a call.” Again, you don’t just send things if you’re not used to this process. One of the things the attorneys will really advise you is, “Don’t send anything we don’t ask you to send.”  And so, it’s very important that you say. “Hey, I’m ready when you are. Can you give me a call?” and then what I’ll do is I’ll go through my initial research with them, and I do that for those clients, I don’t expect them to pay for that. It to me, is how I keep really good relations with these people. They know I’m going to let them know basically what I think up front with the initial research and then from that point, if they’re going to move on and engage me, and we go from there.

Noah Bolmer: Turning down a small number of potential engagements can become more engagements going forward, right?

John Catlett: I think that’s something you have to realize sometimes there’s no winners out there, and you should step away from yourself. It’s not about the money, it’s about fairness and equity. And I think that whenever I look at the case, I try to look [at] who was aggrieved? And was this person acting normally? if it’s a personal injury, not all [of] them are personal injury cases. I mean, I’ve had several that were just construction related issues. but in those cases, somebody still is aggrieved and that’s the person who was expecting the end-product that didn’t get what they expected. I always try to keep that in mind when I’m going in and I try to think about it in that realm and not about, “Well, how much money is this going to bring me/” or “How much this- it’s about what can we do to get justice for this person, and this is what I’m going to do to help them- assist with that.

Noah Bolmer: Do you have any last tips for newer expert witnesses or attorneys working with expert witnesses?

John Catlett: Well, I think if you do it right, then you end up at some point thinking that you probably should become a public defender because that’s sort of the realm that I end up taking. Again, I’m trying to look at the victim and the witness or prosecutor anyway. One of those two sides. But I would also just tell folks that you’re better off probably not to be just unique focused on one area and that’s litigation. The broader your practices, the more knowledge that you have, the more you bring to your litigation cases and so I don’t know too many consultants in my field that actually focus on litigation cases. When you find the people that do, you will find that those are the people where you can really put them to shame with their reports and the things that they’ve put out there. I would just like I said to me, it’s kind of an outcropping of what I’ve done my whole life, and it makes it a little bit easier for me to kind of feel comfortable in my own skin when it comes to these cases.

Noah Bolmer: Sage advice? Mr. Catlett, thank you so much for joining me here today.

John Catlett: Well, thank you, so much I really enjoyed it. I love the Round Table and look forward to doing more with you all.

John Catlett, Owner, J.D. Catlett Consulting, LLC

John Catlett owns J.D. Catlett Consulting, LLC, a full-service building and fire code consulting firm. He has over thirty years of experience in management, training, proposals, implementation compliance and more. Mr. Catlett has worked as a fire marshal, maintenance code official, and building plan reviewer and is a sought-after expert witness with over a decade of experience.