In this episode…

Expert witness reports are shaped partly by the venue. Our guest, Professor Gregory Ogden, works in California, where expert reports are seldom used, and in federal, where they are. He prefers to use them, as they clearly outline the topics that may come up during trial and require much less memorization. Professor Ogden works with his attorney to hone the report for content and style to ensure everyone is organized and prepared.

Check out the full episode for topics including AI in expert witness work, the differences between consulting and testifying experts, and effective communication.

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Professor Gregory Ogden, Professor of Law at Pepperdine University

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome Professor Gregory Ogden to the show. Professor Ogden has over 40 years of teaching experience in civil procedure, administrative law remedies, and legal ethics at Pepperdine University. He’s a published author, consultant, and public speaker. Professor Ogden is a sought-after expert witness and holds a J.D. from UC Davis. Mr. Ogden, thank you for joining me at the Round Table today.

Professor Ogden: You’re welcome. It’s fun to be here.

Noah Bolmer: Let’s jump into it. You’ve had a long academic career, but how did you first become involved in expert witnessing?

Professor Ogden: My first case involving expert witnessing was in the early 1990s. It was at the same time as the O.J. Simpson criminal trial, where Mr. Simpson was charged with murdering Nicole Brown Simpson and Ron Goldman. It was also in the era when cable TV became prominent. Many of my colleagues, who had expertise in criminal law, were cable commentators on the Simpson trial, along with professors. I didn’t become one of those commentators, but I got involved in a case brought by a former student at Pepperdine. I didn’t have this person as a student when I was a professor, but he represented a client suing a law firm. There were legal ethics issues with the duties lawyers owe to former clients under the conflict-of-interest rules governing lawyers in California. That was my first case as an expert witness. My deposition was taken, and the day after I gave my trial testimony, as we were leaving the courtroom, we heard cheering from behind the closed doors of the LA county courthouse. We discovered that the verdict in the O.J. Simpson case had come down, and we left downtown quickly. That was a memorable case because I had never done expert witness work. I taught legal ethics, which provided the basis for my understanding of conflict-of-interest law since the beginning of my career at Pepperdine in 1979. It was an interesting experience. The law firms on both sides were quite good. The opposing experts were also good. I had a certain amount of- let’s say nerves, because this was my first time doing this kind of work. I had been a lawyer for three years before I went into teaching, but most of my work was in administrative law.

Noah Bolmer: You have the trifecta. You were an attorney, an academic, and an expert witness. You’ve seen this from all sides. Let’s talk about expert witnessing in general. When you’re in the role of expert witness or attorney, what is meaningful or important about being an expert witness?

Professor Ogden: What I like about expert witness work is you’re presented with a problem and conflicting views on that problem. You can use your brain power to help solve that problem in a way that is responsive to the needs of the lawyer you’re working for and the client or clients they’re representing. It’s fun. It’s dynamic. There are unknowns, but I always enjoy doing trial work. As a young lawyer, I didn’t do complicated cases, but I like trial work for the same reason. Being an expert is fun from that standpoint, but it can be challenging because you’re in an adversarial environment and there are always experts on the other side who disagree with your opinions.

Noah Bolmer: You’ve been doing this for a while, so I’d like to talk about how the role has changed over the intervening decades from when you got started. How has the job changed fundamentally? I’m sure that one of the big things is the advent of the Internet, or at least it being introduced to the masses.

Professor Ogden: I think that’s absolutely the case. The Internet is ubiquitous, which means there is more information out there about experts and about their roles in previous cases. I think that can present challenges because of the pace of lawyering. The pace of lawyering, the pace of life in general, the pace of information, and the amount of information available makes it much more challenging to be an expert. The opposing council always wants to find out what you’ve said in other cases and that is easier with the Internet. You got past information that is now easily preserved.

Noah Bolmer: Are there things you can do or strategies you can employ to help mitigate some of that or is it a fact of life you must deal with?

Professor Ogden: The Internet is here to stay, and I haven’t dealt with the impact of AI on expert witness work. That’s an up-and-coming issue. I think you’re stuck with being in this environment where there are tons of information out there. Not all of it is reliable of course, but back in the 90s when I first started doing this, the range of information you had to dress and how you worked with information was much different because everything was in paper and it was hard to research prior cases in which your expertise might have been questioned, if you will. Now it’s very easy because any search engine you use will pick up all sorts of things.

Noah Bolmer: Has that affected the vetting process?

Professor Ogden: I think so, because if you are a prominent expert, opposing counsel is going to want to know if you have expressed opinions in prior cases that are consistent or inconsistent with the opinion in the current case.

Noah Bolmer: Let’s talk about the future, where this is all going. You mentioned AI, which is interesting. Do you have any ideas on how AI may impact the industry, and expert witnessing profession?

Professor Ogden: We have to worry about more fake information and of course, AI is something that lots of people are talking about. Lots are worried about it with our upcoming election. I think it’s possible that AI could be used to generate fake news and false information that could impact how experts reach their opinions, but it’s still one of those things that’s in the future. We don’t know exactly where AI is going, but it’s something that could be troublesome, because if we can’t differentiate between truthful information and false information, it’s going to be much harder to offer expert opinions that are helpful to triers of fact and litigation.

Noah Bolmer: As a professor of legal ethics, how does AI implicate legal ethics in general? What are the sorts of things that attorneys have to look for and watch out for as AI becomes ubiquitous?

Professor Ogden: Attorneys representing clients are their advocates, they are advocates who are supposed to be zealous within the bounds of the law. But they’re also officers of the court, so they’re not supposed to suborn or condone perjury. They’re not supposed to put forth false information. The duty of being an officer of the court versus being a zealous advocate for their client can clash and the ethics rules are clear. You’re not supposed to offer false evidence or not supposed to encourage a witness to testify falsely. As many lawyers know, lots of people don’t tell the truth in litigation, but the lawyer can’t be directly involved in that, or know that’s the case. I think AI is going to make much, much harder to vet that false evidence and vet that false testimony.

Noah Bolmer: Let’s move on to our main topic, which is report writing and expert reports in general. Most expert witnesses are going to have to deal with at some point, whether it’s an initial report, a rebuttal report, or some back and forth or in between. Tell me about expert reports in general. What are some of the main considerations when an expert starts writing their report?

Professor Ogden: That’s an excellent question, and I should tell you that in California state court expert witness practice, there are no expert reports, and the lawyers don’t want their experts to put anything in writing because that can be used for cross-examination or for-

Noah Bolmer: No kidding.

Professor Ogden: -tough questions in discovery or deposition practice. That is an unusual practice. Certainly, in federal court, there are expert witness reports, and in most states that have a version in the goals you have state expert witness reports as well. I’ve written expert witness reports, but only three or four of the cases where I was an expert started in federal court or that were moved to federal court. If you’re a California state court expert, you don’t write an expert witness report, which means when you’re preparing for a deposition and trial testimony, you’ve got to rely heavily on your memory.

Noah Bolmer: Wow. So, what do experts do in lieu of a report, and how do they convey that they’re experts in a complex case with many technical details? How do you navigate that?

Professor Ogden: It’s extremely difficult, but I was able to rely on the fact that I have, or had, an almost photographic memory. I was able to rehearse in my mind all the things I needed to talk about as I got ready for depositions and in depositions themselves. In that environment, you really have to have a good memory and a good sense of organization. Given my preferences, though, I much prefer to write an extra witness report in all cases. The reason for that is you typically go through drafts in your expert report as your understanding of the case evolves. You get feedback from the lawyer you’re working with and once everything is all complete and tied up like a package with a bow, you have your report. That report provides a basis for a deposition and for expert testimony. Everything’s in black and white so it’s clear. I much prefer that because you don’t have to rely on your memory as much, but as I said, only in a few cases was an expert witness report required. Those were either in federal court, or one case was supposed to be tried in state court, but the lawyer removed it to the bankruptcy court. Expert reports are critically important when you’re in a court system that requires them, which most do. Your expert report evolves as you consider more information related to the case. In one case, I wrote a vital expert witness report based upon a lot of information, but well before any depositions had been taken. It was all based on information and interrogatories.

In another case, and in most cases I was detained late in the discovery process because the experts wanted me to review all the fact witnesses’ depositions. When you’re in that setting or that scenario, you have more detailed information that you can rely upon in the writing of your expert witness report. As I was saying, your thinking evolves as you reveal more material and as your brain is operating. One of the challenging things when I’m doing expert work is I can almost never shut off my brain. I can’t bill for 24 hours a day, so I have to kind of figure out what’s reasonable in terms of thinking time and what’s reasonable in terms of “Oh, I didn’t think about this particular point.” Having that extra way to support forces you to put those things into a specific context.

Noah Bolmer: Are there formatting considerations? Is the way you organize your report critical, or do you organize it the way you think? 

Professor Ogden: I try to organize it based on the questions that my expert opinion is being offered, but there’s a standard format in which I first talk about my relevant expertise. I talk about the retention agreement I have with the lawyer I’m working with, and then I go into the questions they’ve asked my expert opinion on. That last part is the lengthiest portion of the report, but that’s the part that I end up having to think to myself about and tell myself “Okay, I’ve got everything. I’ve put everything down that reflects my understanding of this issue.”

Noah Bolmer: Does it help to have a glossary or appendices if it’s a complicated or lengthy report?

Professor Ogden: Probably, in certain fields it would, and when I did that conflict-of-interest case, that’s complicated enough. It was a jury trial of lay jurors. In that case, although that was a state court case, I didn’t have a report. The lawyer who I worked with had me go through and define some terms. Then, those terms and definitions went into jury instructions the lay jury could understand. There’s a challenge here. You have to be accurate as an expert, but you also have to be able to communicate things that are understandable in a jury trial. Now, if you have a jury strike case, it’s not as important, but in any case, that’s always a question or an issue.

Noah Bolmer: In a jury trial when you have a technical area of expertise and are dealing with a presumably lay jury or at least partially lay jury, how do you go about writing a report in a way that communicates all of the important technical details while remaining understandable to laypersons, including the judge?

Professor Ogden: Unfortunately for me, most judges in the American legal system are also lawyers, and they had to be lawyers for quite a while before they went on the bench. So I didn’t have too much difficulty communicating a concept to the judges. But with the jury, this is a real challenge because you want to be exacting. You want to utilize your expertise in an honest way. On the other hand, it’s like jury instructions. They’ve got to be accurate, and they’ve also got to be understandable. The same thing is true with expert opinions and expert reports. They’ve got to be accurate, and they must be understandable. There’s a tension there between those two competing goals. Now I don’t think that the tension for legal experts is as great as it is for experts and other scientific disciplines where very few people have an understanding of that particular discipline. I agree, it’s a challenge. My advantage is I’m a law professor, I’m retired now, but I was a law professor for 44 years, so I was used to presenting concepts to my students in an understandable fashion. While my students were future lawyers, they were still learning. They were a highly educated subpart of the population, more so than jurors. But, the magic of the jury system is that you get a group of people together. No one person is going to pick up everything, but when you’ve got a larger group of people, you’ll find a large amount of understanding of the nuances of witness testimony.

Noah Bolmer: Is general writing technique translatable to something like an expert report? In other words, if one of your students is a talented writer and turns in well-written assignments, are they likely to be good at writing expert reports, or is that an entirely different skill?

Professor Ogden: It’s interesting because a colleague of mine has recently started writing fiction. He said fiction is a lot harder to write than nonfiction because you have to create the whole universe in which your work takes place. With nonfiction, you have a real-world set of facts that you can work with. I would say students who are good writers will make very good appellate lawyers. They won’t necessarily be good trial lawyers because the skills for good trial lawyering are quite different. If you’re a good writer, you can learn to be a good advocate and of course, experts in our American legal system, your experts in an adversary system. You’re not an objective expert looking at both sides of the question. You’re an expert who takes a particular position in a case that’s consistent with the objectives of the client that the lawyer working with is representing. Before I agree to take on a case, I need to know enough about the case to know my opinion about this, consistent with the position being advocated by the lawyer, because if it’s not, then I can’t be their expert.

Noah Bolmer: Is that something that you typically determine in the initial phase and during the first phone call?

Professor Ogden: It is. Now, if it’s about 50 to 55% of the cases I worked as an expert, I got those without the use of an expert witness service, mostly from former students or colleagues who had expertise like mine but didn’t do that kind of work. In that setting, I would talk to the lawyer. I would get through enough of the fact questions to say, “Okay, my opinion is going to be helpful to you.” If I found that it wouldn’t, I would say, “I can’t be your expert and here are the reasons why.” With the expert witness services, a lot of that information is presented initially by the expert witness service, and then you respond to a series of questions and then based upon your response to those questions, the actual witness service talks with a lawyer. Then if there’s a meeting of the minds, you go forward and talk to them yourself. There are a number of expert witness services. They all operate similarly in the sense that they give you a set of facts and want you to offer your opinion on that as well as your expertise in that area of trial work. With those, I fill out the answers and wait to hear back from the attorney or from the service.

Noah Bolmer: Experts tend to have fairly broad expertise in their field. How do you remain concise in a report? It can be easy to say everything on a specific issue. How do you keep it within the four corners of the questions that are at hand and not just spout everything you’ve ever learned about your field?

Professor Ogden: I would say that takes experience. One of the advantages of being an academic expert is that my day-to-day paycheck is not based upon my expert witness work. As I said, I’ve had to learn over the years how to break things down into the simplest concepts possible so my students can understand them. Those same techniques go into being an expert, writing an expert witness report, or giving an expert witness deposition or trial testimony. It’s not necessarily easy, and it takes some time and thinking, but it is possible to do. If you’re a young expert and just starting out this is one of the things that you have to learn how to do. Which academic experts might have a bit of an advantage. On the other hand, real-world experts will say, “I’m in the real world, you’re just in the ivory tower. Your opinions aren’t that valuable.” I would, of course, disagree with that, but I would say it takes time and experience to learn how to structure your report or structure your opinion in a way that’s appropriate, doesn’t bring in everything but the kitchen sink, and meets the needs of a lawyer and their client you are working with.

Noah Bolmer: Beyond that, are there any other common fit pitfalls vis-a-vis report writing that newer experts are likely to stumble upon?

Professor Ogden: As you’re writing your report, sometimes you get to a question that you’re thinking about changes over time and you want to be aware of your thinking, taking you in a direction that the lawyer and the client don’t want you to go. In some cases, experts will just say, “My opinion is limited to A and not to B, C, & D.” That could be a way around that particular problem, and that can avoid your deposition testimony, your trial testimony being problematical for the lawyer on your client depending upon the opposing counsel. Sometimes your deposition testimony can provide the basis for cross-examination later at a trial. However, most cases I was involved with, didn’t go to trial. They often settled on the eve of trial and that’s because many of today’s judges want these cases to be settled. They don’t want to have to try them. In my early years, my expert experience led to not only depositions but trial testimony much more frequently than in the last 10 years. It’s your expert opinion with your report or your expert opinions without a report oftentimes helps facilitate settlement because it gives both lawyers a sense of the strengths and weaknesses of their case.

Noah Bolmer: That brings us back to earlier, when we were discussing the present and future of expert witnesses. More cases are moving to settlement these days. It’s interesting that you mentioned that judges are pushing for a settlement. Do you find that judges are a big factor in why more matters are moving to settlement?

Professor Ogden: I would say the judge has an important role and most judges now- in some systems, the judge who tries the case is not supposed to try to settle, but that’s not the rule in all cases. I mean the California system judges who are getting ready to try the case often try to settle on either trial, so the judges try to do that. Also, if there are insurance companies involved in litigation, they often want to settle. I mean the lawyers who work for them often want to settle cases because they’re worried about verdicts that are well above the assessed cost of litigation to the insurance company. I worked on a case recently where I didn’t think it was going to settle, but it settled on the eve of the trial and that was after expert depositions. I think both lawyers looked into the mirror so to speak and said, “There are problems with each part of our case on both the plaintiff and defense side. Let’s see if we can come up with a number that everybody can live with.”

Noah Bolmer: You mentioned a few times the differences between California, in particular, and federal, not to mention other states, but how do you recommend that experts contend with that? Is there something that experts need to do to prepare themselves to work in different venues, or do they just rely on the attorney and go from there? Is there any preparatory work or strategies they can employ to make sure they’re ready to work in a venue they may not always be in?

Professor Ogden: That’s a great question. One issue that arises is the scope of your expertise. My expertise and most of the cases where I was an expert witness, were in legal ethics, the duty of care, and legal malpractice cases. That was tied to my experience as a California lawyer and law professor. If your expertise is jurisdiction-specific, which, of course, might be as a lawyer, then once you get outside that jurisdiction, nobody is going to accept your expertise as being particularly valid. That’s one question. Another question is how the court system operates, and in the federal court system, there’s definitely a push to complete discovery within 18 months of filing, which is brisk. The magistrates that often are involved in that will push the parties to complete discovery. Then once the discovery is complete, you might sit there and wait three years before the case comes to trial. That’s another factor as well. In one case where my administrative expertise was used, you had a very unusual system where you had challenges to an IEP for a particular school student system that was first assessed by a hearing officer working for the state. Then the appeal went to the U.S. District Court, which was crazy. In that case, the District Court had noble review power. I had to structure my report in a way that helped the District Court to see the particular hearing officer whose decision we were challenging violated all the norms of administrative law. I didn’t give testimony, but I did an expert declaration, and often expert declarations are helpful in avoiding the grant of a summary judgment motion by opposing counsel.

Noah Bolmer: For our listeners who aren’t familiar with declarations, can you describe what that is?

Professor Ogden: A declaration used to be called an affidavit. Now, in most cases, you can complete a declaration where you swear on penalty of perjury, that it is true and correct. Declarations are frequently used by fact witnesses that the lawyer is not able to call. Extra declarations are designed to put forth the expert’s opinion in writing, and those, of course, are widely used in California, even though there are no expert reports. My experience with doing declarations in California was typically to oppose the summary judgment motion, and in one case, and I remember where I used that fairly successfully. The lawyer who retained me was the third lawyer on that particular case. I looked at the discovery of that case, and the first two lawyers clearly did not understand the claims and issues being asserted by their client. Lawyer number three did, and I was able to assist that lawyer. I did an extra declaration and the judge denied summary judgment. Then, of course, we went through full discovery, and on the eve of trial, that case was settled. That was the case where the judge had the lawyers in his courtroom for several days hammering out a settlement, but he was successful in doing that. Experts can use declarations to offer opinions. I said, “Typically it’s in support of a summary judgment motion or in opposition to it.”

Noah Bolmer: Beyond the choice of venue, there are obviously different types of cases and mass torts, class actions, intellectual property, etcetera. Are there differences in case types that expert witnesses need to be aware of and prepare themselves for?

Professor Ogden: Yes, there are. Of course. I never worked on any complex cases, but there certainly are Environmental Law experts who’ve done that. Most of the cases I worked on, the vast majority of them were legal malpractice cases, so those were tort cases. An area of law that’s understandable to most lay jurors and stuff like that. The other area I did a lot of work in was administrative law cases and those cases were always in a specific regulatory area of law, such as environmental law or special education law. My role in some cases was consulting expert. When I was a testifying expert, my role was to put forth the administrative law principles that applied in this particular regulatory law area. That’s something that’s part of my teaching in that particular subject as well. The type of case can definitely make a difference and if you’re on a more complex case, not only is there more information to process, but there’s going to be a lot of experts, some on the same side, some on the other side. I worked on cases where there were other experts, but none of the lawyers that I worked with wanted me to coordinate with other experts. I’m not sure why that was the case, but the experts were in other fields, accountants, economists, or other things of that sort.

Noah Bolmer: You mentioned the distinction between a consulting witness and a testifying witness. How are those-

Professor Ogden: If you’re a consultant, you’re not a witness. Helping the lawyer behind the scenes.

Noah Bolmer: Right. Right. Right. What are some of the differences between those two jobs that an expert might do, and can one turn into the other?

Professor Ogden: Good question. Occasionally, a consulting expert becomes a testifying expert, but in my experience, because most of my consulting work was in administrative law, my assistance to lawyers was to help them understand the administrative law principles so they could more effectively represent their clients. Sometimes, that meant I would ghostwrite briefs for them. Others meant that I read their briefs and gave a lot of feedback. As a consultant, they wanted my expertise, but I couldn’t testify to a fact dispute in that area, and that’s the main difference, at least with the type of consulting versus testifying expert I was. In some other cases, consulting experts become that because the lawyer doesn’t like the opinion they offer and says I don’t want you testifying for me. But that was not my experience.

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses, in particular newer expert witnesses?

Professor Ogden: Well, number one, I would say being an expert witness is really a lot fun, even if there’s a lot of adversity in the process. It’s fun and in every one of those cases, I learned something new that I was able to take back to my classroom as a professor. It was great for my students, but the biggest challenge I had as an expert was, as I said, not being able to turn off my brain when I was in the midst of this expert witness process. No matter how many cases I did that created a degree of tension. I thought, “Okay, I’ve got to stop thinking about this, but I can’t.” I don’t know how lawyers who are advocates all the time do that. But that is something to avoid. Just say, “Okay, I’ve thought about this enough. I’m just going to shut things up.”

It’s great fun if you’re a professor and an expert, as I said, you learn things that you can take back to your students or [use in] your writing. If you’re a lawyer who’s also an expert, often you’ll work with groups of other lawyers. In one case I did, the expert on the other side was an expert that was used by this particular law firm in a number of cases, so they had a good working relationship. But as an academic expert, you can say, “I’m being paid to do this, but this is not my primary source of income.” Whereas if you’re a lawyer expert, you’re always subject to that criticism.

Noah Bolmer: Absolutely fascinating. Thank you, Professor Ogden, for joining me here today.

Professor Ogden: You’re very welcome. I enjoyed it very much.

Noah Bolmer: Thank you to our listeners for joining me for another Discussion at the Round Table.

Professor Ogden: And Round Table is a great group to work with.

 

Professor Gregory Ogden, Professor Emeritus, Pepperdine University

Progressor Gregory Ogden has over 40 years of teaching Civil Procedure, Administrative Law, Remedies, and Legal Ethics at Pepperdine University. He is a published author, consultant, and public speaker. Professor Ogden holds a JD from UC Davis.