In this episode…

Our guest, Dr. Richard Laton, is the President and Founder of Earth Forensics Incorporated, and an Associate Professor at the Department of Geological Sciences at Cal State University, Fullerton. His knowledge has taken him across the country, to Europe and Asia, supporting litigation and showcasing his perspective globally.

On this episode, Michelle Loux interviews Dr. Laton, discussing everything from the water supply to differences across international legal systems. They also explore the ins and outs of Dr. Laton’s experience and learnings as an expert witness, including time management, interviews, drafting contracts, deadlines and more.

Episode Transcript:  

Note: Transcript has been lightly edited for clarity.  

Host: Michelle Loux, Assistant Project Manager, Round Table Group  

Guest: Dr. W. Richard Laton, President, Founder of Earth Forensics Inc., Associate Professor, Hydrogeology, Cal State University, Fullerton  

Announcer: This episode is brought to you by Round Table Group the Experts on Experts®. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.  

Michelle Loux: I would like to welcome to my show today, Dr. Richard Laton. He is the President and Founder of Earth Forensics Incorporated, and also an Associate Professor at the Department of Geological Sciences at Cal State University, Fullerton. If you can introduce yourself and tell me about your background and how you started.  

Dr. W. Richard Laton: I am Dr. Laton, a professor at California State University, Fullerton, as well as the principal owner of Earth Forensics. I did consultant work for years and worked with many different groups. I started working for a small group that did expert witness work and saw how that could be the next step in the evolution of my career. Being an expert witness allowed me to use my years of experience and apply it to a problem in the litigation environment. From there, I took on a few things, and it expanded towards, essentially, a full-time career with teaching almost being my hobby, you know?  

Michelle Loux: Now do you work in the state of California, or do you go across the nation?  

Dr. W. Richard Laton: My work has been across the nation, and some has been done in Europe. I have not done anything in South America or Canada yet, but we will work on that. I have done some professional talks as an expert witness in Asia, but it was for a different program. I am not licensed in 15 states as a geologist and hydrogeologist, so I work all over the country. Cases from New York and Rhode Island to California from North and South from Texas to Montana.  

Michelle Loux: Out West, water is gold, and it is going to continue to be a concern. An issue that everyone is going to have to work towards solutions in the coming years. Do you find that across Europe they have similar water problems or geology problems as you do out West? Is it universal?  

Dr. W. Richard Laton: I guess the one thing you are getting at is the water supply. Even people in the Midwest have water supply issues. In Georgia. I talked to people when we had the Olympics in Atlanta, GA. The river where they kayaked had been dry for over a decade. It had no water in it and they could not have the Olympics there. So, water from a volume standpoint is always going to be an issue. Another thing I tell my students is there is a fixed amount of volume on earth and the population keeps getting bigger, so that puts even more stress on it. There is also the dirty water side of things, which is also prevalent worldwide. We contaminated the water and everything we have done on the surface sooner or later work its way into the soils, the ground, and the water. Now, does that mean we cannot treat it? We can treat some of it, but some of the things we are finding are a little harder to treat. Some chemicals are going to be in the environment for virtually ever, like Teflon and PFAS. Others will break down naturally, but if they are in our water supply, we want to take care of them, treat them and clean them up.  

Much of my litigation support has dealt with the contamination that is harming aquifer or water supply. Where did it come from? Who should we go after? Defending the people who did it and say we defended it. We did everything we could, but nature is going to do its own thing, I have done both sides of that, but there is a clean water supply and a dirty water supply. California, where a well is in one place and somebody is stealing water or someone complaining because ‘I put in a $2,000,000 system and it does not work.’  It might have worked, so you have to remind people that nature is going to be nature, and she is going to do what she does.  So, there are two sides to it, and that is worldwide. Asia has huge amounts of water quality issues. They may not have much of a supply, but they certainly do have water quality issues. That is something that is just going to be there forever. Hopefully, we can get to a point where things are better, but I am kind of the belief that today’s water quality is the best it is ever going to be in the future.  

Michelle Loux: When were you first retained as an expert witness what type of matter was it for?  

Dr. W. Richard Laton: The first time I did it was under a professor who was an expert witness. Then, I was the person in the field doing all the sampling and everything and they called me in to testify about how I did it. Then, a decade or so after that, there was a case in California contamination where a large pharmaceutical company bought another company that had polluted this drinking water system. I became the expert for the plaintiffs. They sued and went to trial.  We won parts of it, but not all of it. That was the biggest learning experience I had because that was the first one where I had to write expert reports and be deposed, rebuttal reports and be deposed again. Then go get ready for trial and go to trial for four days and after the depositions, which is where most of the cases come down to. I was just worn out and it was not the best deposition I have ever had. It was my first and the lawyer came to me and said, “You have to make a decision. Do you want to continue doing this expert witness stuff, or do you want to go back to consulting? If you are going to do the expert witness stuff, that is fine, but what you are going to have to do is think about it in a different way than you have before. It is not who is the smartest person in the room. It is who the most knowledgeable about what is happening and what is going on and sticking by your opinions, whatever they are. Other people may have different opinions. That does not make yours wrong but does not make it right either. You have to stick to it.” That advice that lawyer gave me has stuck with me ever since then and propelled me into doing this almost full-time.  

Michelle Loux: Have you seen or received other advice from attorneys that have retained you? Any tips or tricks on being an expert witness? 

Dr. W. Richard Laton: They all have things they talked to you about. Some of them are just there to get you to think about things before you speak, which as a teacher is difficult to do but also try to think two moves ahead. Think about where the other side may be heading so you can either try to guide the topic to where you want it to go versus being guided to where they want you to go. Every deposition is somewhat different. Some are more combative. Others are trying to make the other side. Trying to become your friend. As my lawyer pointed out, he is not your friend. They can kind of go from mean to nice. They are always asking you this series of questions. The other thing that was pointed out to me is I was always panicking about every single question. They would ask, “What is your name?” What do you do for a living?” These are just basic questions that you answer every day. As soon as you hesitate, they gotcha.  They said just answer the question and move on. You can answer it simply. There is nothing they can do to change it but if you start to hesitate, they go, “Oh, we got them.” That has been one of the things several lawyers have told me over the years. The other thing with doing expert witness work is you read many depositions. Not just yours, but others. From that, you get to learn how to phrase things. Some answers are better worded one way or another. It is the same answer, but if you say it one way, it means something different. There is a bunch of lawyer stuff in there I try not to learn, because it means something different. 

Michelle Loux: We talked about your start as an expert witness and some learning experiences along the way. How many cases do you take on per year? Is it several where you have to balance your time management with them?  

Dr. W. Richard Laton: I do, and I have to manage my time in two ways. I teach full time and then I do this full time. Then, of course, research and other things, including family. So, I take on anywhere between 15 and 25 cases a year. Not all cases are equal. Some require a little work upfront and then wait for a long time. Others require work upfront and then you wait for a while. I find that number for a small group like myself, and I only have two employees besides myself which keeps everybody busy but does not overwhelm us. There are times when I get behind the eight ball and there is a report due on Monday and one due the next Friday. Somewhere in there, I have to have a deposition. Things can get hectic. but you work through things. I have never been afraid to work, and occasionally you spend 24 hours trying to get something out the door. 

Michelle Loux: When you have your first initial interview with the client to understand what it is that they are looking for, how do you prepare yourself? What are the many questions you ask the attorney?  

Dr. W. Richard Laton: I break it up into two parts. The first is, I give myself a heads up about what the case is. I might do a little research online. At least see if I understand something about it. Then, there is the one where I do not know anything. The first thing I do is introduce myself, and then ask them, “OK, what is the case about? What is your side of it? What are you thinking and where do you see you need help?” Then, I come, sit back, and listen. As they are listening, you can start to go, “Okay, I can help them.” Or, “I can take part in that. I am not going to be able to do this other part, but it is okay. I have friends and other people who can do this other part.” It is a small industry, so one day, the guy is on your side and the next day they are against you. I look at it as if I want to be able to help them, and if I cannot help them or if they have an opinion that I cannot back up even on the front side, I walk away. It is just not worth it to me and that has happened. If I think I can help them and they seem to have a reasonable approach to things, then I will just keep asking questions and try diving a little deeper until I get comfortable with what they are trying to ask for and what they are thinking about. I cannot give an opinion because you have not done any background work on it, but at least I can understand where they are. Particularly at this phase where I have been doing this for the last 15 years, pretty much full-time. I have a better idea of where they may be headed because I have been down these various legal cases both on the defense and plaintiff side.  

Michelle Loux: Do you know some of the deadlines upfront? Do they give you a schedule?  

Dr. W. Richard Laton: I do ask them upfront. At first, I did not ask that. It has never hurt me, but it certainly has put us in a bind. Now I ask them upfront these questions:

• What type of time frame is there?
• What do you need?
• Do you need an expert report, or do you need us to do background work and then do a deposition?
• Is it in state court versus federal?
• Are you going to need me to do a site visit?
• Is it a case I need to go to the site? 
• What is your time frame and is that discovery?
• Are we there again and are we playing it for the defense?

That tells you what part of the system you must be in as far as the first or second shot over the bow. So, early on I did not do that. Now, I do that more and it may be because I am juggling more cases than I had before. I think it is something that gives me some expectations of what they are looking for and then I can either tone back or say, “Hey, no problem, we got this. Let’s move on.”  

Michelle Loux: As you go through that initial interview, do you draft conditions into your contract?  

Dr. W. Richard Laton: It is not so many conditions, but I do have retention in two things. Sometimes the lawyers I am working for have their retention letters for experts. I will receive, read it, and make sure there is nothing in there I cannot live with, sign, and send back. Most of them ask about my retention letter, which is simple and that is “Hey, are you asking me or retaining me for this case given the case number? I am working for you. Everything goes through you, and you are going to pay me at a certain time frame. Please sign this.” So, I know I have a legal contract to say, “Hey, at least you said you are going to pay me.” I do not do retainers anymore. Originally, I kind of did and I know people who do retainers all the time.  I have never been burned. Maybe there were some slow payments, but I have never been burned and I will keep my fingers crossed. Realistically, they have a problem, and my job is to help them. If I am helping them, I expect to get paid for that help. It is always on 30 days, but chances are it won’t be, but I feel like the contract side of it needs something simple. Also, these contracts come up in depositions, so the simpler it is, the less argument about “Oh, you were paid to have this exact in.” No, I was paid to come up with an opinion. So, I think that also simplifies things as well.  

Michelle Loux: Could you share some differences between Asia, Europe, and the United States as far as the legal system?   

Dr. W. Richard Laton: Many times, it comes down to is the United States Environmental Protection Agency. The United States usually leads the rest of the world in contamination. We are the ones that say, five parts per million TC is bad or five parts per billion, and then what will happen is the Asian countries will adopt that, and so will Europe. Occasionally, there are a few things where they are ahead of us, but typically not so much on the regulatory side. The biggest difference is we have people out trying to enforce things. We also have private groups out there trying to go after things, find things, and monitor things. Part of that is the Clean Water Act and the fact is, if I am a private citizen and I find something that someone is doing bad and they get fined $100,000, I get a reward for that. So, there are still people doing that. The rest of the world in Asia and other places do not have the people doing the enforcement. They are saying, “Okay, yeah, we know we have a pollution problem, but we need the factory to hire people to go forward and we will worry about this later.” Europe is a little bit more progressive when it comes to that, but as you get to the edges of Europe, the Eastern Bloc countries, they are going to go right back to the Asian model, which is, “Yeah, we have these standards, but we do not want to, we are not going to enforce. From a legal standpoint, there is not as much work to do there. What is interesting from an expert witness standpoint, is Asia and those Eastern Bloc countries, if you have a doctorate or a Ph.D. you can walk on water. Here in the US, we have many Ph.D.’s, they are a dime a dozen here. That is somewhat of an interesting thing when it comes to the legal side of it. They want you and they treat you like you are something special because of that doctorate. We do not get that treatment here. Come here once you have gone through the process of being certified and all that good stuff. Then it becomes easier and not challenging. Everyone is going to try to throw everyone out. The Europe side of it, as I said, the stuff I have done over there has been industry-driven rather than regulatory-driven, because even though they have the rules, they just do not have the infrastructure or the people to go after them.  

Michelle Loux: What about the courts themselves? Is there any formality like in the US? Do you have to declare yourself as an expert witness or prove that you have this experience? Is there any certification about being an expert over there?  

Dr. W. Richard Laton: I am certified in Europe. There is no certification that I am aware of in Asia. There is an association you stand for, but they must do worldwide stuff, so they say you are certified. The courts in Europe do have a little bit of a vetting process for the expert. I did not see that in Asia. As far as South America goes, what I have heard is they are probably like us where you have a little bit of vetting going on. It is not the vetting process you see here.  

Michelle Loux: Do you find that you take more federal cases? 

Dr. W. Richard Laton: Lately, it has probably been about 50/50 federal versus state. In California, it is probably 70% state and 30% federal. Outside the state are mostly all federal. It depends on where you are and how big the project is. There are some projects where they cannot go to their normal expert because they work for a big firm, and they are conflicted. I am a little two-person or three-person office so typically I am not conflicted. Every once in a while, but not most of the time we are not and so that dictates where these big federal cases go so that is why all of the sudden, we have seen an uptick in federal cases. There has been so much consolidation in the environmental water resources world that they might never work for that group. The group they were bought by did a lot of work with them. Now they cannot be an expert forum.  

Michelle Loux: Do you find that it is a small group of you that are running into the same folks being retained that are opposing you? 

Dr. W. Richard Laton: Well, I talked to people about hydrogeology and geology. It is a huge field, but we all know each other, and as soon as you get to the level of experts, you know everybody too. There are always some new people, which is great, and some people are retiring, which is great. But generally, we have heard of everybody. We know each other and know where people came from, and so it is fairly small. It is not necessarily getting bigger. There is a huge, tremendous amount of people retiring right now. Many experts in the water environmental thing reached that late 60s, early 70s and they are starting to slow down or just retiring.  

Michelle Loux: Do you find that you have more referrals from past clients or do you get a lot of new business?  

Dr. W. Richard Laton: There again, it is one of those strange things. In the first case I did in California federal court, I thought that the lawyers would see how great a job I did and would try to grab me and put me up for everything. That was not the case. There are some lawyers I have known that over time have gotten to know me and anytime they have anything they call me. Some of the bigger law firms are now starting to share my experience, which I was told, should never happen. If you are good, they do not want to share your name with someone else because you may be against them someday. There are a couple of plaintiff groups out there that keep pointing toward me. I cannot always help them, but at least pointing me out. Less than half is new stuff. I mean, I should probably ask them more often how they found me. It never was any of those things I cared about too much. More importantly, “What can I do to help you there?” The more you do this and the longer you are in it, I guess the more referrals you are going to see.  Some of the people I know retiring are getting calls and [state], “No, I do not do that anymore. Call up Dr. Laton.” 

Michelle Loux: Let’s just talk more about depositions and the expert report. Are there ways to prepare on writing the best report?  

Dr. W. Richard Laton: The biggest thing I have learned is you cannot look at enough documents. It costs money for me to review these things and I have a person in my firm that reviews them first, then tries to narrow that down for me. If I am going to make an opinion on something, I must understand what the problem is and all the data that goes into it. Once you get that expert report out for the deposition for the federal court, it will be based on what is written in that. They can ask other things, but what you have written is supposed to be the only thing you can testify on. So, what it amounts to is they are going to go through that report and try to see if there are any holes in it or if their expert has things that say what we came up with. A different answer to how they come up with this one. It is not so much a gotcha moment. What they are trying to do is understand how you got to that answer. Then they can go back and say, “Okay, you did not do it right” or something else. The prep work that comes down to me is rereading my expert report. Going back to some of the base documents that I counted on for some of the key arguments within that report and making sure I remember those.  

The other good advice I was given and still told is it is not memorization. You do not have to memorize things. If you need a second to look something up, do it. That is how I have gone back to the deposition. Before, I tried to memorize everything. You do not do that anymore. It is just too much, especially in big cases. Now, it is understanding what my depth is. My report is how I got to those answers in the report, the backup material, the key backup material for that report and just keep reviewing that and going and then go into the deposition bringing my expert report with me. Some lawyers do not like that. It is fine, I will do without it but then I have to expect the other side is going to give me a copy of my expert report so I can at least go through it and say, “OK, on page 12. . .” This is where I explain that the expert report itself can take on a life of its own, and what I mean by that is you start as an expert and groundwater modeling. In that, you have to do some geology, some hydrogeology, a little surface water, meteorology, and there may be other experts who are doing those specialties. You have to understand all that and take some of that into account and do some of your own. So, one of the things that end up happening is you end up seeing yourself going a little bit further than maybe you thought you should. I have also had it go another way. I have done the report and they go, “Oh, by the way, we need you to do this too. Okay, great.” There is another chapter [I have] to go into. I want to try to attack the expert report early on, so I am not down to the last hour. Now, there are going to be changes.  There could be things you are going to do in federal court. Chances are there is no discovery as far as reviews or any edits or anything like that. It is just your final report. Or in state court, all of those count, but try to go through and make sure that the words are what you want to be. 

There again, words for an expert may mean something different than the legal side of things. I have read enough expert reports on that. There are some things now I look for more likely than not, the term that everyone uses. You need to get all that data in, and I am a big believer that you have to look at the bigger picture before you can dive into the little details. It may not all go into the report, but you have to look at it from a 20,000-foot elevation, get down to 5000 feet and then get down to a foot. It may be there again from a contamination standpoint. It may be one person, but it may be 10 different groups that are polluting the area. The lawyers may only care about one, but you have to compare a law because if they are all polluting, where is their pollution going? How do they interact with your pollution or water resources? There again, it is great. This person has many water resources, but maybe they are stealing from Peter to pay Paul. So, you are kind of going through that from the expert report before you get to that position. Like I said, that is where everything comes in.  

Michelle Loux: How about we end it with any stories or anything that were learning moments for you, either during the trial or through the whole process that were the ah-ha moments for you? 

Dr. W. Richard Laton: I will give one quick one and that is I did it because of a flooding case in California.  I was defending some landowner from something. I am sitting there in the waiting room waiting to go in for my deposition, and the opposing lawyer comes out. He comes over and says, “Who are you?” I said, “I am Doctor Laton. I am waiting for my deposition.” He shakes my hand and walks over and picks up a phone call. Somebody walks back into the room, and two minutes later they come out and say, “Okay, you are done.” It was settled right then and there as I am waiting in the waiting room to go in for my deposition. Now in a deposition this last January where I am in the middle of the deposition. Finally, someone breaks into the Zoom call, because now we are doing them on Zoom, which is great, and goes “Okay, we are done. We settled.” Then, I had one a while back where 10 minutes into the deposition, someone comes on and said, “Okay, the judge has ruled on something that moved the deadline for deposition. So, we are going to postpone your deposition.” Well, what was interesting from my standpoint was that is fine, I did not care, but the lawyers had to argue for about 35 minutes. While I am sitting there thinking, “Why stay on? Do I leave? Stay on? What do I do?” They are arguing about what is happening and all this stuff had nothing to do with me. So, you have to be ready for anything almost to happen. Sometimes it is comical, sometimes it is I mean, it is deadly serious, but some things are going to happen. People bringing out pieces of paper and forgetting that they had their notes on them when they hand them to me and I say, “These are not my notes, they are yours.” Things are going to happen because we are humans. You must keep it professional, slow down, listen to the question, and answer the question. You know things are going to happen, so you have to be flexible.  

Dr. W. Richard Laton, President, Earth Forensics, Inc.

Dr. Richard Laton is an expert in the field of hydrology and hydrogeology, currently serving as an associate professor in the Department of Geological Sciences at Cal State University, Fullerton. His extensive knowledge in the areas of hydrogeology, soil and water contamination, wetlands, coastal monitoring/geomorphology, and more have led him to a career in litigation support, teaching, consulting, and management.