In this episode…

Professor Decker finds that engagements are far more successful when attorneys and expert witnesses work together to fill knowledge gaps, ultimately weaving a more effective advocacy for the client. He explains, “I think it’s important for the attorney and the experts to agree on the meta questions behind the technical issues and the litigation, because once you agree on the foundational issues, then it’s sort of hard to fall off the edge of the world because you can get those established early on.”

Be sure to check out the whole episode, for our discussion on expert niches, the public good, and demonstrating expertise.

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Professor Rand Decker, Professor at Northern Arizona University

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today’s guest is Professor Rand Decker. Now, Professor Decker teaches civil engineering, environmental engineering and construction management at Northern Arizona University. He has authored numerous scholarly works with a focus on technology in cold regions and alpine infrastructure. Professor Decker has over 30 years of experience in expert witnessing and holds a Ph.D. in Cold Regions Engineering, a type of Civil Engineering from Montana State University. Professor Decker, thank you so much for joining me here today at the Round Table.

Professor Rand Decker: A pleasure Noah. Thanks for asking.

Noah Bolmer: Of course. Let’s jump into it. Cold climate engineering is an interesting focus. How did you get started in that and when did you first get involved in expert witnessing?

Professor Rand Decker: Well, the cold regions engineering thing comes from the fact that I have enormous love and affection for mountains, and what mountains are for society and cultures and for the people that live in them, and for the people that visit them. And mountains are constantly being bombarded for their water, for their recreational development, for their power potential and so there’s a need for thoughtful engineering infrastructure development in mountainous regions. That was the root of it and my first forays into expert witnessing came as a result of a request from Fulbright and Jaworski’s well-known intellectual property house that had a dispute associated with the snowmobile ski and so, it was something I was able to provide some value to their arguments. And from that I think my reputation followed me to Round Table and then I had an overture from Round Table to participate again in a cold regions litigation environment and took that up as well and I’ve never looked back all of my subsequent expert witness work has been through Round Table.

Noah Bolmer: When you got that first call before Round Table, was that kind of out the blue or were you looking for expert witnessing gigs?

Professor Rand Decker: What’s an excellent question. It was pretty much out of the blue. They were looking for somebody that knew cold regions, and skiing, and snow machines, and snowmobiling, and that’s not an enormous population of individuals, and so they found me.

Noah Bolmer: Yeah, it’s fairly niche.

Professor Rand Decker: And it was intellectual property (IP) litigation and I had even at the time a few accepted claims of my own, and so I’ve remained my whole career attracted to intellectual property litigation. But there’s much more to expert witnessing than just IP.

Noah Bolmer: Sure, of course. Let’s talk a little bit about your niche. I’m sure you get a lot of work when people need that specific thing. Do you feel that having a niche is important to expert witnesses?

Professor Rand Decker: Well, you’re asking- sort of asking the choir the question. For me, having a niche was absolutely critical to developing a component to my career in expert witness. I do very much believe that to be successful, at least in terms of being selected from a smaller pool, having expertise in a narrow niche is valuable when you get those calls.

Noah Bolmer: What’s the vetting process like? What sorts of questions do they ask you? What are the sorts of questions that you ask the attorney who potentially is engaging you, and how do you decide whether or not you’re going to accept an engagement?

Professor Rand Decker: Now, that’s a question. Somebody thinking about getting into expert witness work needs to consider thoughtfully. How do you decide to take up a perspective opportunity to serve as an expert? For me, it’s pretty simple. I have to believe it’s true. I can’t argue things that I don’t believe are true for the professional or compensatory value in it. I have said, “No” to a handful of expert witness opportunities because I didn’t think they had it, and so, that’s sort of important to me coming out of those first engagements and they’re just as curious about that with you, which is to what degree we do. You have confidence or faith in their arguments behind their litigation and they don’t want somebody there trying to argue it if they don’t believe it either so that’s the first, engagement is to see if we’re all swinging a bat for the same client in the same way.

Noah Bolmer: You’ve decided– you’ve decided that you’re going to take an engagement because the fact pattern is such that at least you can provide an opinion that’s in your wheelhouse and that the facts of the case are true with the capital T. They’re not- there’s no funny business going on. What are the other things that you look for? How can you tell if an engagement is going to be a quality engagement from the get go?

Professor Rand Decker: Early on, you have to have a relationship with the attorney, or the attorney and his or her staff, as well the client that attorneys represent, you have to understand that there’s an opportunity for a mutual collaborative respect relationship. I respect their skills as counselors of the law, and I find in a hurry that I’m attracted to people that provide some respect for what they don’t know, that I do, and that’s the-

Noah Bolmer: Right.

Professor Rand Decker: -basis of the relationship.

Noah Bolmer: Do they always know what they don’t know?

Professor Rand Decker: Oh, that’s now- you’re hitting the nail on the head. That’s one of the most critical aspects of being an expert, and it precedes all the details associated with the case, and it’s what I call the metadata of the case. No, frankly, a lot of litigators don’t know yet what they don’t know, but the wise ones know that they’re ignorant. There’s nothing wrong with ignorance. There’s a lot wrong with stupidity, but if you’re ignorant, there’s room to one, admit it, and then fulfill or backfill that ignorance, to the point that you and the attorney are successful knitting together the technical arguments that the attorney will proceed with legally, and that you will back up technically.

Noah Bolmer: You are a teacher, so you understand as a professor how to best inculcate the attorney with the necessary knowledge to properly prosecute or defend a case. You have been, I believe I read in your bio both on the plaintiff and defendant side. What are- what are some of the differences?

Professor Rand Decker: Well, the burden of proof is on the prosecution. The development of prosecutorial arguments is much more aggressive than the sort of siege mentality that you may take on associated with working in a defense arena, nonetheless you have to equip the walls of your castle. If you’re the defendant from the alleged damages, and so forth that are coming at you from the prosecution. But it is two very sort of different stances one is an offensive stance, the other is a defensive stance.

Noah Bolmer: Do you have any preferences vis-a-vie defense versus plaintiff?

Professor Rand Decker: I like working the defense for the little guy.

Noah Bolmer: Do you have any memorable cases that you can talk about? Obviously, you don’t have to give any specifics, but that kind of inform the way that you go about being an expert witness or made you feel good about defending the little guy.

Professor Rand Decker: Well, one early foray into expert witness work was this job with this snowmobile ski and the individual who had patented this snowmobile ski was just a small timer. It was an individual who did a lot of snowmobiling in Utah, where there’s a lot of soft snow. He invented this soft snow ski. Well, one of the major snowmobile manufacturers saw it and went “That’s a piece of work.” And knocked it off and no, they ended up paying damages to that guy, and his patent and that felt good. I have that as a good one [and] a handful of others that have to do with safety or environmental health and sustainability. Those are attractive to me personally, but once again it doesn’t have to be at the root, but it makes it a more fulfilling engagement If you can see multiple value-added opportunities in the course of being an expert.

Noah Bolmer: Does that enter the calculus over whether you accept an engagement? If it’s going to do some public good.

Professor Rand Decker: Yes, absolutely. I mean that’s if you look at the differences between civil engineers and all other forms of engineering, at the heart of it is this idea that we work in the public domain and we work in the environmental domain for improvement. I think civil engineers are sort of predisposed to be knitted up that way and I’m an ardent greenie from the 70s, so that helps too,

Noah Bolmer: As a civil engineer with a niche, how do you remain an expert? What are the sorts of things that you do to keep up on your expertise? You’re a published author, you have a lot of- you’ve written for various and sundry academic journals and whatnot. I imagine research is definitely part of remaining an expert, but besides teaching, what else do you do or recommend experts do to stay on top of their areas of expertise?

Professor Rand Decker: That’s a great question as well. For a start, as you mentioned, I teach and do research in the very niche that I turn around and provide expert witness opinions in which, for example, alpine hazards, snow avalanches in ski areas and in transportation corridors, snow hydrology as a water supply, and snowmaking, which is not new in terms of technology, but it’s a technology that’s exploded on the scene, mostly climate-driven here in the last decade. You can’t be a cryospheric scientist without paying attention to that development. The third way to be successful in maintaining your expertise is to not only work as an expert witness but do consulting in these niches. You go out and get hired by a ski area to do snow-making design or get hired by a Department of Transportation to assist in avalanche mitigation, or you get hired by a state water supply entity to advise on snow hydrology. And so those mean all three of those things, teaching, research, and external consulting, support your expertise as a consultant. And the question is valuable, because your credibility as an expert will get called into question and you can’t just ask your own counsel as well as opposing counsel to trust that you’re an expert. You have to demonstrate it.

Noah Bolmer: Right, right. Yeah, that makes sense. You mentioned outside consulting, what about expert consulting? Obviously, there are both consulting expert witnesses, and there [are] expert witnesses that are going into depositions and trials. Have you done both types of work? Have you been engaged by attorneys as a consulting witness?

Professor Rand Decker: The majority- all of my expert witness work has been as a testifying expert, so I’ve provided reports and depositions, and if it goes to trial testimony at trial. But I had engagements cut out from under me because they settled right there in the draft report phase and so I certainly worked as a consulting expert up to that point.

Noah Bolmer: Let’s talk about some of that trial testifying work. How do you keep cool under pressure? What are the sorts of things that newer experts might encounter? How do you work with your attorney to be prepared and ready to go into a trial situation?

Professor Rand Decker: For me, Noah, it’s a matter of not talking too much. I’m a lecturer by profession, so talking in public I’m comfortable with, and explaining difficult concepts to people who are anxious to understand them but may not understand them thoroughly is something that I can do pretty well, both in an expert environment as well as in a classroom but the challenge is to let other people talk, particularly your own counsel. You’re their expert and they don’t want to just hear you talk. They want to ask you questions that they seek answers to and if you’re a talkative character, talk less. Think faster.

Noah Bolmer: Do you have any particular preparation techniques that you have found work for you? For example, mock cross-examinations?

Professor Rand Decker: No, I can get up on my toes and get ready for deposition and trial pretty well and probably the most valuable way to get ready for that is whatever reviews, notes and scopes of work that you’ve fielded up to that point, go look at them all again not the night before but the week before and then leave the Red Bull and the coffee at home the day of deposition and trial.

Noah Bolmer: So, make sure you have everything well memorized. Have you been in situations where your attorney overloads you at the beginning of an engagement with lots of stuff to read?

Professor Rand Decker: That’s fair enough. What I’ve come to realize is not just in expert witness work but at the onset of anything new there’s this anxiety associated with how much of it you don’t know or understand yet. But if you look back at all the instances where that occurred in the past, by the time you got into it you were comfortable with the content. That initial anxiety is something that needs to be sort of tamped down, especially with respect to the idea that the attorney is excited to get you- get this material loaded with you and get your opinions back out of you. They are not doing it to burden you, but because they want you to have everything, they think you need to produce a valuable opinion for them.

Noah Bolmer: Do you feel that you typically have sufficient time to go every- go over everything that you need in order to write your report and to form an expert opinion and on occasion to do any additional research on little things that you might not know the answer to?

Professor Rand Decker: I pretty much always make sure I have that time, Noah, and that’s the responsibility both to yourself as well as your client. If you’re not getting enough time or you don’t have all the material you need, then you have to ask for it. But are there occasions when one gets rushed by attorneys? Absolutely, and there’s probably a good reason. They’re probably getting rushed by a judge or somebody else. If you need more time, take it. Don’t go in half-cocked.

Noah Bolmer: Is that also something that can be dealt with in the vetting process to figure out where you are along in the process and make sure that there is sufficient time before whatever is required from you is due?

Professor Rand Decker: That’s an interesting question. It sort of presupposes how much you’re going to know about the case early on, and I do think it’s important to establish in the early exchanges that you will need and take the time it will take for you to become comfortable with your opinion. Now, most of these environments come with the sort of caveat that you are not to proceed without counsel’s authority or instructions, and that’s fair enough. Just what you need, ask count- counsel early. Get the hours authorized and get some big loads in the Chamber so that you’re ready because you don’t want it to. There’s no feeling worse than walking into a classroom and not being ready or walking into a deposition and not being ready. Just one of the worst feelings in the world.

Noah Bolmer: Let’s talk a little bit about your approach with the attorney, him or herself. Do you take a proactive approach if you feel that something about the case is just wrong? In other words, it’s something that you didn’t catch in the vetting process.

Professor Rand Decker: No, I think you have a responsibility to the client- to your attorney and their client- that if you see something flawed, you have to get it out on the table. That’s not just [an] expert witness thing. That’s [an] engineering thing. Your personality is not attached to errors. Your personality is attached to not fixing errors before they get loose, and so, yes, I think the expert has a responsibility to engage when they see flaws moving up- moving up the line.

Noah Bolmer: Before we wrap up, do you have any last tips for newer expert witnesses, in particular or attorneys that work with expert witnesses?

Professor Rand Decker: You mentioned earlier the idea that a lot of times an expert will feel sort of inundated early on similarly, if the expert tends to be a talkative type, the attorneys might feel a little inundated with technical jargon and information early on. I think it’s important for the attorney and the experts to agree on the meta questions behind the technical issues and the litigation, because once you agree on the foundational issues, then it’s sort of hard to fall off the edge of the world because you can get those established early on. And so, metadata and calm, thoughtful thinking early about what it is you’re doing together needs to take place.

Noah Bolmer: That’s sage advice. I do want to follow that up with one question. When you’re talking about expressing these complex concepts to attorneys and then possibly juries or judges, how do you parse that for people who might not be technical in your very niche, [your] very specific area?

Professor Rand Decker: Excellent. Now the answer to that comes from my experience as a teacher in an engineering environment, which is you have to break the concepts down and if you can provide examples that most people would have some experience with boiling water in cold weather and or scraping the ice off your windshield and it didn’t snow the night before. There are ways that you can provide mechanisms for people to understand the concept you’re talking about from their everyday experiences, and you can sort those out if you’re good at it you can think them up on the fly as you’re being served questions from opposing counsel or even, test questions, trial questions coming from your own counsel. Getting it anchored back to things that people can understand on a daily basis- from their daily experiences is at the heart of getting people to understand concept things, not complex things.

Noah Bolmer: Excellent advice, Professor Decker. Thank you so much for joining me here today.

Professor Rand Decker: Good, I hope it was valuable for all of those out there getting ready to take their first shots at working the expert witness arena. It’s a wonderful crossover between your engineering way of seeing the world in a whole other professional arena that’s just as clever and thoughtful as you think you are.

Rand Decker, Professor Northern Arizona University

Our guest, Professor Rand Decker teaches Civil Engineering, Environmental Engineering, and Construction Management at Northern Arizona University. He is the author of numerous scholarly works on cold environment engineering and has over thirty years of experience in expert witnessing. Professor Decker holds a Ph.D. in Cold Regions Engineering from Montana State.