In this episode…

In this episode of our podcast Discussions at the Round Table, host Michelle Loux connects with Chuck Ehrlich to discuss what he wishes he had known in his early work as an expert witness. This sparks some valuable lessons, as he recounts the importance of confidentiality under Federal 26, deposition prep, and how to prepare for the role. Charles also details how he transitioned from litigator to expert witness, as he has filled both roles in his career.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

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

Guest: Charles G. Ehrlich, Insurance Expert Witness

Introduction: Welcome to Discussions at the Round Table, the podcast that goes behind the scenes with influential experts. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.

Michelle Loux: Thank you for joining us today at Discussions at the Round Table. I am your host, Michelle Loux. My guest today is Charles Ehrlich. He is an expert consultant and witness in insurance matters, including claim handling coverage, good faith, bad faith, errors and omissions, environmental, and many others. Chuck, thank you so much for joining us today and welcome to our show.

Charles Ehrlich: Thank you for having me.

Michelle Loux: The focus of our podcast is what do you wish you knew your first time as an expert. I asked you to share some stories or some insights that you have picked up along the way.

Charles Ehrlich: Let me go back even before when I was an expert when we were hiring an expert and I think the first thing to start worrying about is conflicts. We had a case when I was working in the insurance industry, and we hired an expert who was the number one expert in the whole world on this particular subject. And I almost did not get a motion in from the other side to disqualify us as counsel or disqualify our Council on the basis that we had hired the other side’s expert. This expert had not properly checked conflicts. They were just happy to take on our case and happy to sign us on and did not realize that he was already retained by the other side. I am amazed as an expert now, how many lawyers will call me up and say, “Hi, you know, Michelle gave me your name, and here is my case.” They start talking away about their case and I have to say, “Wait, stop, stop, do not say a word. Who is involved here? Who is your client? Who is your opponent?” I might have some involvement with one of those parties. I also have to immediately start Googling because they say, well, my client is the mom-and-pop insurance company. Great, I have never heard of the mom-and-pop insurance company, no problem. What if the mom-and-pop insurance company is owned by “Giant Conglomerate Inc.” for which I am doing some work? Or in a case where I am serving as an arbitrator [as a third party]?  Before you even start doing anything as an expert, you must check for conflicts or [you can] get yourself in a potentially disagreeable situation, to say the least.

Michelle Loux: Many times, when attorneys call us, they may be hesitant to share the names of the parties involved. It is one of the things that we require. We need to know if there is a conflict for our company.

Charles Ehrlich: Your organization is very good about that but not everyone is. Then, they feel like you are pulling teeth if you want to find out who the parties are. You cannot dive into a case without knowing who the parties are.

Michelle Loux: What about other errors or things that are important to first-time expert witnesses?

Charles Ehrlich: Another big issue at the start of the case is confidentiality. If you have a case in federal court, you have Federal Rule 26. Federal Rule 26 protects much of what you might write. Much of what counsel might write, a lot of your work products, and many drafts, and several states have adopted Federal Rule 26, but not everyone. So, you get into is the situation where the lawyer starts talking about the case and you start taking a lot of notes. You start putting a lot of question marks. What about this and what about that? That may be discoverable and even worse. As soon as you are retained, you want to show how smart you are. So, you write a long email about here is what I think about the case. Well, if it is not a Rule 26 jurisdiction, everything you said is now discoverable. A lawyer told me about a time he had to get another expert.  He found a great expert and that is exactly what his expert did. He got onto the email, wrote, “Here is what I think is great about the case, but I think that this might be a problem and that might be a problem.” So, the lawyer, after deciding not to jump off a bridge, had to get rid of this expert and find another one.

Another story I was told was where the expert wrote very disparaging things about the law school which the opposing expert had attended. The problem was it was the judge’s law school. Again, not a Rule 26 jurisdiction. Mutual embarrassment. I have learned that at the absolute start of any discussion with a lawyer to say,  “What are the confidentiality rules governing our discussion here?” Sometimes they say, “Oh guys, I had not thought about that.” In the beginning, conflicts and confidentiality are what we call the two Cs.

To go from C to D, the next biggest thing that I learned was about depositions. You have this sense that you are the expert and you are writing your report. You are giving a sincere, honest opinion and you are going to get deposed. They are going to just ask you questions about this sincere, honest opinion. Very often the lawyers are there just to make a bozo out of you and to get you trapped. They have a lot of trick questions and ask a lot of generalization questions that you theoretically cannot disagree with that will then make you look like your opinions are dumb. You must prepare for a deposition. You have to insist that your lawyers take you through an adverse deposition. “What were the questions that you guys would ask me if I were the opposing witness?” Otherwise, you are just not preparing yourself for the worst-case situation.

I was thinking of Tom Brady, a famous football player, you might have heard of him. When Tom Brady goes into a game. He does not just read the playbook. He gets in there and they run plays and they have guys chasing after him, trying to knock him down. That is what a deposition is like sometimes, but it is very hard to get the lawyers to do this. The lawyers will say, “Oh, you have been deposed before. You know what you are saying. Here are the themes that we want to do.” Back in my very early days of practice, we had an expert who was an expert on the issue of water and corrosion of pipes. By the time his deposition was over, he had never heard of pipes, because we had not prepared him for getting beaten up. It is CC&D. Conflict, confidentiality and depositions are the things that I learned the most about and have seen going wrong for people.

Michelle Loux: Those are all great points and great advice for folks that are entering the business for the first time, or even as you said, it could be an expert that has been around a long time but still needs to have that preparation because it is going to be a new case. You were also a litigation attorney. You hinted at that as well. Do you think that served you as far as preparing in front of the jurors and the judge as far as testifying?

Charles Ehrlich: I think so because one of the things you learn is that there are two groups of people in the world. There are lawyers and there are real people. Real people do not see the world in the same way that lawyers do. We as lawyers sometimes will go in there and expect that a jury or judge is as familiar with our obscure area of the world as we are, and they are. One of the things that I learned as a lawyer was to explain where we are coming from. To educate, and I do not mean that in a sort of superior sense, but to bring the jury or the judge into the same world that you are dealing with. I try to do that as an expert as well, rather than just saying there was this insurance policy. Let’s assume I am on this side working on an insurer assignment. Here is the policy. Here is what happens. Here is the exclusion. Ergo you do not pay. A normal human being will look at that exclusion and say, “Okay, but why? Why would not you pay that?” You need your expert work to lay the groundwork for telling that story. Why is this exclusion here? What is the point of it? What is the reason for it? Why does it make sense? Then the judge or the juror has a better understanding of where you are coming from. They may agree with you or disagree, but at least they are not just puzzled, shaking their head, and saying this does not make any sense to me.

Michelle Loux: It is not like you can stop to read the room as an expert, right? You need the leading question from your attorney to better explain it for them to recognize that too.

Charles Ehrlich: I think that is true and that is a bit of a challenge sometimes to persuade the lawyers that they need to start at square one from the standpoint of the jury or the judge. Why is this here? They sometimes resist that because, “Everybody knows what that is.” I had a lawyer say to me once “Everybody knows what an access other policy is.” At the time, I did not know what an access other policy was, but I was afraid to admit it, so I said, “Oh yeah, of course, everybody knows that.”

Michelle Loux: That is interesting. Now let’s talk about report writing. Do you have any tips or tricks that you have learned along the way to make your reports successful or more compelling?

Charles Ehrlich: Well, one trap that lawyers sometimes fall into is to write a report that is more like a legal brief, and you want to avoid that because you are not sitting there as a lawyer. It is the lawyer’s chapter, right? The legal briefs. I just read one the other day and it is full of case citations and so forth and so on. That is not the point. I fell into that trap. The judge was pretty nasty about the whole thing. It was a very educational process. Legal briefs are the lawyer’s job. My job as an expert in industry, custom, and practice is to write about industry, custom, and practice. Not everybody writes very well and I guess I would say from the standpoint of a lawyer retaining an expert, it makes some sense to ask for some written product, and ask around about a written product. I had a case where the lawyers had three experts. My side had three experts and when we got down to the report due date, the lawyers almost committed suicide because two of these experts just could not write the English language. I am not saying I am wonderful, but I can write a coherent sentence. If you cannot, there is training and there are people who train people how to write expert reports. Then of course some people let the lawyers write the expert reports which always struck me as a little weird. I do not know how that comes off or doesn’t come off, but it seems like a strange practice to me.

Michelle Loux: How about retainers? Do you find those to be useful as an expert witness?

Charles Ehrlich: I do charge a retainer. I call it a designation fee so that people understand that it is not like counting against hours. It is a fee that proves are we for real. Particularly for a jurisdiction such as California State Court, where somebody can designate you as an expert and you are not writing a report. Generally speaking, I do not want to find my name just out there casually. I have gotten some resistance to it, but not a lot.

Michelle Loux: And it gives you that good faith . . . it protects that relationship, or it indicates that you guys are serious.

Charles Ehrlich: Yeah, I mean we are not just texting, we are dating.

Michelle Loux: Sure, exactly. Now, have you testified outside United States state courts and federal courts? Have you done any international cases?

Charles Ehrlich: No, I would love to. I am still waiting for that case, which requires a few weeks in Paris at a luxury hotel. That has not come around yet.

Michelle Loux: Well, that would be amazing. I was curious to tie this into travel with COVID right now. Have you found that you have been referred to any cases where states are open in regard to video depositions or are you going into the courts themselves?

Charles Ehrlich: Now, everything so far has been video. There is one coming up in Los Angeles that is supposed to be live, but I do not know what Omicron is going to do to that. I found the video very interesting in many ways and in some ways appalling, just sitting here looking at this screen for seven hours and having people beat me around the head. In some ways, it is a little bit more liberating. If I feel like I want to take a break I am not looking around and worrying about the time saying, “Oh gosh, we just took a break a half an hour ago.” And I indicate, “I would like to take a break. I am going to put myself on mute and I am going to take a break.”

Michelle Loux: Sure. As you said, you probably would not be able to necessarily walk out of the courtroom for a 7-hour briefing or an attorney’s office as well. Now, what about any suggestions when you are on video, from your side of things as an expert witness communicating to an attorney. Are there any pros or cons to the video that could be improved upon?

Charles Ehrlich: One of the things that I found myself doing when I started reading the transcript, I realized I was being a little bit more informal on video than I would be if I were in a lawyer’s office or on the stand. Probably more informal than I should have been. I am trying to cut that out and not be chitty chatty on video, I am trying to remind myself not to be chitty chatty. There is a question of to what extent does your background area look like? I have a friend of mine who read somewhere that you are supposed to have sort of a blank space behind you, so he has an old sheet behind him. Well, he does not look very professional with an old sheet behind him.

Michelle Loux: Then it would be more important to have that real office environment, right? Where you have books or maybe your credentials.

Charles Ehrlich: Yeah, I mean it was funny because I have a set of law books that I use it is a set of practice books that appears in the video. The lawyer told me to take those away because otherwise, they are going to start asking questions about that set of books.

Michelle Loux: That is a good point and you do not want to get caught in that.

Charles Ehrlich: I took them away and now I have a fairly bland, but nice background. Hopefully, you are seeing some things that I do not have up when I am being deposed.

Michelle Loux: That part is interesting too. What about any technical difficulties? Have you experienced that yet on videos?

Charles Ehrlich: I have not. Some people have horror stories about it. It has worked okay for me. I got some sort of repeater thing outside my office that repeats the signal up from downstairs where the router is. That makes the video work better for some reason, so it has worked fine.

Michelle Loux: Curious to hear about how people are adapting and if this is going to be something that we keep having for another year. As you said, you might have a live appearance in Los Angeles, but you have to move quickly if you do not, right?

Charles Ehrlich: I used to work off my laptop. Then I had a webcam, speakers, and I had a microphone and that was awkward. I was always adjusting the webcam so that I did not look more awful than I normally look. I finally said the hell with all this. I went out and I bought an iMac and all of this stuff is in here. That was worth it. Just to get this junk off my desk and have one integrated system.  I am not getting paid by Apple, but that was a great move for me.

Michelle Loux: Chuck, do you find that when you are doing video depositions, let’s say you are out on the West Coast and you have an East Coast attorney that has retained you. Are there any issues with the time gap?

Charles Ehrlich: Most of my cases are located on the East Coast. So, they say, “Alright we will start at 9:00 there.” One of my retaining counsels is a guy who does not sleep much, and he said, “Oh that is peachy.” Well, that is six o’clock our time and that is not peachy for me. But I only realized that he had agreed to Eastern Time the night before, so there was not much I could do about it. So, it is a little bit awkward for people back east, if you start at 9:00 here on the West Coast it is noon in the east. That gets him in the evening, but 9:00 am here it is noon their time. That gets him in the evening, but he has to pay attention and focus on that. If you are an early morning person that is great. An early morning person or a late afternoon person would never think about that timing, because otherwise they will set it for some time and you will all of a sudden say, “Oh my God, this is not working for me.”

Michelle Loux: It is one thing to have a meeting at 6:00 in the morning for discussion, but it is a whole other ballgame if it is in front of a judge or if It is a deposition.

Charles Ehrlich: Absolutely, the focus level is 50 times more, or it should be 50 times more. You cannot just check out and read emails.

Michelle Loux: Not at all. Well, thank you for all those insights and stories, do you have anything else to share with us that has helped you along the way.

Charles Ehrlich: Not specifically, I think it is great working with folks like you to come up with interesting and challenging assignments. It is good that you guys are out there. This is not easy stuff. I also do arbitration work and as an arbitrator, it is not quite as demanding as an expert. Whether you are reviewing, writing the report, being deposed, or being important, it is all pretty darn intense, but it is rewarding.

Michelle Loux: Twenty years ago, did you see yourself as an expert witness, or was this something that kind of fell into your lap?

Charles Ehrlich: This was happenstance. I was at a sports car event . . .  I am a sports car nut. I got a call from a lawyer who had previously done some work for us when I was in-house [counsel], and he said I need an expert on XYZ. How about you? My first thought was what? And then my second thought was “Yeah, I guess I could do that.” It just fell out of the sky.

Michelle Loux: Wow, but it has also been something that you have built upon obviously because you have been an expert for how many years?

Charles Ehrlich: I guess six, seven, or eight years.

Michelle Loux: Well, I am happy again that you shared all your stories with us. Thank you for the insights and we will be calling you soon for some more cases.

Charles Ehrlich: Great. Super. Thanks very much.

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Charles G. Ehrlich, Insurance Expert

Chuck Ehrlich is an expert consultant and witness in insurance matters, including claim handling coverage, good faith, bad faith, errors and emissions, environmental and many others. His perspective as an expert consultant and arbitrator is rooted in almost two decades as a senior Insurance executive and twenty years as a practicing litigation lawyer.