In This Episode…
Our conversation included opportunities for experts where John remarked “I’ve never advertised my services, but it’s generally word of mouth that has brought different litigation opportunities to me . . . if you perform well. And word of mouth gets around.” Opportunities come to experts who stay up on their field and maintain composure in court. John elaborates, “Clarity in your in your discussion . . . is so, so important. If you’re just thinking of answers off the fly on the stand that can lead you to confusing or convoluted answers.”
Additional topics include understanding the totality of the case or matter– not just the field of expertise; and, how experts help win over a jury, “ . . . You know, as a technical person, we like to bomb people with facts and show graphs and data, etc. . . but you need the jury to understand your facts.”
Note: Transcript has been lightly edited for clarity.
Host: Noah Bolmer, Round Table Group
Guest: Professor John Abraham, Programming Director and Professor of Engineering, University of St. Thomas
Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to speak with Professor John Abraham. He is the Programming Director and Professor of Engineering at the University of Saint Thomas and an Associate Research Fellow at the University of Minnesota. He is an expert in multiple engineering fields, including medical devices, climate change, fluid flow processes, and numerous others. Professor Abraham has published over 300 times, from books to patents, and is a sought-after expert witness in Intellectual Property, Personal Injury, and Product Liability Litigation. He holds a. Ph.D. and M.S. in Mechanical Engineering. Professor Abraham, it is a pleasure to have you on the show today.
Professor John Abraham: It is great being on. Thanks for inviting me.
Noah Bolmer: John let’s jump into it. You have had a formidable career in engineering and teaching, and it looks like you have been on that track since your undergraduate days. Tell us about your career.
Professor John Abraham: I have degrees in an area called mechanical engineering and interestingly a subtopic that I specialize in is thermal sciences. Anything involving heat or flow and that flow could be air, water, or any fluids, liquids, or gases. I do engineering design with heat and flow.
Noah Bolmer: How did you get started?
Professor John Abraham: I started working in litigation. Do you mean how I started in litigation or my technical field? I started at college as a physics major, but then realized there were many career opportunities for physics people. So, I moved to engineering and became passionate about thermal sciences and engineering design because of some of my excellent professors. I got my start in litigation because I work on the interaction of heat with the human body, and I was invited to participate in a burn injury case. Early in my career. It turns out I liked litigation. It is very challenging. There are intellectual engagements. There are many intellectual puzzles to solve. So, after my first experience, I decided to pursue it more thoroughly, and I have been working as an expert witness for about 20 years.
Noah Bolmer: Oh, wow. You have quite a bit of experience as an expert.
Professor John Abraham: I think around 40 depositions in about 15 to 20 trials or hearing testimonies.
Noah Bolmer: When you first got started, were you seeking out work or did somebody contact you? Were you working as a consultant at the time?
Professor John Abraham: I was contacted because I had done research in a certain area and that captured the attention of some attorneys working in burn injury. Since that, I have never advertised my services, but it is generally word of mouth that has brought different litigation opportunities to me. As you know, if you perform well and word of mouth gets around, you can find yourself with many opportunities to participate. That is what happened to me.
Noah Bolmer: I want to hear about your first engagement. They contacted you and you had never worked as an expert. What sorts of things were you expecting? How was the experience different from what you were thinking? How was the training? What was that first experience like?
Professor John Abraham: It is a great question because that first experience is such a challenge for technical people wanting to get into litigation. It is one thing to do scientific studies and to publish your work. It is another thing to face a deposition and trial testimony. They are different animals. My first experience was not a pleasant one because I was brought in after the discovery date. So, in my first experience, I expected to write a technical report, which I did. I expected to testify at trial, but because I was brought in after discovery, I was not permitted to appear in the case, and so that was an educational experience for me. The attorneys said I was working. It helped shape how I view the role of an expert moving forward. My first experience was a learning experience.
Noah Bolmer: What changed throughout your career? What are the things that you would like to tell your first attorney all over again to say, “Hey, when you are a new expert, what you really should do is X, Y, and Z.” What are those things that you think that attorneys should be doing to look out for their newer experts who are not familiar with the process?
Professor John Abraham: That is a good question. Newer experts are generally good technically. They understand the technical details of the case, but they do not understand the legal machinations that are happening behind the scenes. In some respects, experts rely upon attorneys to ensure that non-technical things go smoothly, but what I have learned is it is incumbent upon an expert to participate in that role as well. Now, I am much more engaged in the non-technical areas of situations when I testify. Whether it is a patent case, an injury case, or a climate case, I am more hands-on with the non-technical aspects of my involvement. That is what I learned from my earlier cases.
Noah Bolmer: How do you go about preparation? You have to lean on your attorney and ask them about the relevant laws. Beyond being an expert in the area you are an expert in, how do you go about educating yourself? How do you go about knowing what you need to know?
John Abraham: For me, it was a trial by fire. I did not have mentorship from another expert. As an expert, you have certain obligations. You need to tell the truth, be forthright, and communicate the strengths and weaknesses of the case to your experts. I looked carefully at the successes and failures that I had early in my litigation career. I asked myself if I could iron out some of the problems that appeared. Anytime you do not win a case you want to know why. I think a good expert will always be introspective about their prior experiences and I learned skills that I bring into new cases. I will ask attorneys about non-technical issues, and legal issues, to make sure that we are not running into hurdles that were otherwise unanticipated. It is on-the-job training, and it is hard knocks. You learn from your victories as well. I also like to watch what happens with the opposing experts in the case to try to learn from what they have done in a certain case. What I can implement in the future for myself. Picking up the best traits as you go along is helpful to best traits related to communication. This short answer to your story is I am very forthright with the attorneys that I work with, and I ask them to ensure that there are no hidden legal issues or non-technical issues that could derail my testimony. Attorneys are quick to provide you with some insights, at least from their vantage point. When experts are concerned about those issues and they voice those concerns to attorneys, the attorneys generally take them seriously.
Noah Bolmer: In your opinion, it is incumbent upon the expert to take a proactive role and ask the attorney questions and not sit idly by and hope for the best.
Professor John Abraham: Absolutely. That is correct.
Noah Bolmer: Do you have any specific cases that you can discuss? We do not need names, but do you have a couple of stories for us?
Professor John Abraham: I do have some stories and I think maybe the most relevant story is a recent case I had. It was a high-profile case involving 2 tobacco companies. I had an opportunity to meet with a Jury psychologist who helped me articulate technical ideas to a layperson jury in ways that are easy to understand, not patronizing, and not get lost in wonkiness or jargon. Hearing from a psychologist about the things that are going on in the jury’s mind was extraordinarily helpful because, as technical people, we like to bomb people with facts, show graphs, and data, etc. At the end of the day, you prove your case with facts, but you need the jury to understand your facts. I had a great quote from an attorney when I was walking out of a case. I said to the attorney, “Man, we just proved their case. We are going to win this thing. We are going to win. We proved it.” He turned around and looked at me and said, “What we proved does not matter at all. It is what the jury thinks.” That was a profound statement for me. It is a truism. The story I wanted to relate to was meeting with a psychologist is helpful for a technical expert to get an insight into the minds of the jurors.
Noah Bolmer: Is that something that you have come across in other cases or was it just that case? It is the first time I have heard of somebody using a jury psychologist to prepare an expert.
Professor John Abraham: It was the first and only time that has ever happened.
Noah Bolmer: That is interesting. You found that helpful and that maybe attorneys should employ that more. That is interesting. Now, what you can say and what you should not say, how does that apply to let’s say cross- examination? How do you prepare for getting peppered with questions from opposing counsel if it is a criminal case?
Professor John Abraham: That is a good question, and I have been involved in criminal cases as well as Intellectual Property, injury cases, and product malfunction cases, so I have had the fortune or misfortune to see cross-examinations in several contexts, but a few things that experts need to remember is generally, shorter answers are better if you start discussing some kind of technical issue. You have got about 20 seconds to hold the jury’s attention. Once you lose it, it is hard to get it back. When I am preparing for cross-examination. I try to anticipate the types of questions and topics that are going to arise, and then I like to rehearse clean, tight answers in my mind because clarity in your discussion and answers is so important. If you are answering on the fly that leads to confusing or convoluted answers. I like to rehearse the way I am going to answer questions ahead of time. A deposition and a jury trial are so different. Going on the stand to testify in front of a jury is not the same as a deposition.
Noah Bolmer: In what way?
Professor John Abraham: My preparation for a deposition is different from my preparation for a jury trial, but I would say the number one thing to think about concerning a jury trial is articulating clear answers that the jury is going to understand and resonate with. Think about analogies that strike home. Make juries think about how these things work in their life. Any analogies that you can use are great. The last thing is not to fight with an attorney. On cross-examinations, I would say about half the time, attorneys want to pick a fight. More than half the time, they want to see you get mad and once you lose your cool and get mad, you have lost much of your credibility with the jury, keeping, things calm, answering things calmly, and not getting emotional are important in cross-examination.
Noah Bolmer: Are there any specific strategies that you employ to remain calm or to prepare in advance for those sorts of situations? Is it just a matter of role-playing with your attorney in advance or just being prepared enough that nothing blindsides you?
Professor John Abraham: That is part of it. Being over-prepared is critical and I do my prep mostly on my own. To prepare for a deposition or trial I try to anticipate what lines of questioning are the most problematic from the other side. What you can expect is how those questions will be asked. I will generally run through areas of potential questions with my attorneys and see if I am missing anything. Then once I have the lay of the land, some of the areas that they are going to try to hit me on, I will go and think deeply about how I am going to answer those questions artistically. I do my type of rehearsal. Now, concerning strategies, there are some simple strategies if you have an attorney who is asking a convoluted question, trying to get you ruffled, or trying to get you upset. “I disagree” is a simple answer diffusing answer for the attorney, and the jury, and oftentimes attorneys will try to get you worked up on stuff that doesn’t matter. If you show it does not matter, the jury is going to know it does not matter. At the end of a week-long trial or a two-week trial, what does the jury remember? They remember some of the questions and answers, but they remember your demeanor, your professionalism, and your clarity. Jurors do not like long answers, and they also do not like you not answering questions. I like to give straightforward, honest answers. You can defuse an attorney who is hot under the collar by saying “I disagree” or “That is not how I would describe it.” There are simple answers that you can give to diffuse tough situations.
Noah Bolmer: Before we wrap up, I want to talk about something you mentioned a few times, which is winning. You have had a long career doing this. How important is your proverbial scorecard when you are brought in as an expert? You may be on the prevailing side or not, but how important is it to you that you are on the prevailing side of the case?
Professor John Abraham: That is a great question. The first thing to know is I only take cases that I feel strongly about. I do recommend that experts are judicious as they decide which cases to take. You do not want to take on a case that is going to cause you to lose credibility, because it is going to impact your career later. Experts have to do a service to society. We have a role to help the court make the right decision and so there is an ethical obligation that experts have. Once I sign up for a case it means that I am committed to the facts of the case. I am not going to testify in a case where I think we are not in the right. I take cases I feel confident in, I like to win because I feel that if the facts do not prevail, it is an injustice. I do like to win. I do not pay too much attention to the win-loss record, but I do like to win because when I am in a case. I am convinced that my side has the facts on their side.
Noah Bolmer: Do you feel that in advance of being hired? In other words, when they first contact you, do you feel that you have enough information to know whether this is a case you can win?
Professor John Abraham: Sometimes you know it and sometimes you do not. In an introductory phone or Zoom call. I will often ask targeted questions to the attorneys. I ask them what the central issues are in the case and then I will use my judgment to decide how strong the case is that the attorneys are offering. So, I would say half the time ahead of time, maybe a little more than half, but there are situations where you learn facts as the case evolves. Sometimes you learn facts that help your side and sometimes you learn facts that do not help your side. As you learn well, my recommendation for other experts is as you learn facts, you should convey those to the attorneys. They should have an understanding of the playing field as they see it. I mean if a fact comes up that you think is problematic, you need to tell the attorney. If your side is taking a position that is not defensible, you need to tell the attorney. Sometimes those things come up during litigation, so the short answer to your question is typically I know I have a good sense of who is on the right side. If my experience tells me that my side does not have the strongest set of facts, I will let my attorneys know that.
Noah Bolmer: That is excellent insight. Thank you, Professor Abraham, for joining me today.
Professor John Abraham: It was a pleasure. Thank you.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Our guest, Professor John Abraham, is the Programming Director and Professor of Engineering at the University of Saint Thomas, and an Associate Research Fellow at the University of Minnesota. Professor Abraham is a Mechanical Engineer, with a focus in thermal sciences. He has published over 300 works, including books, research papers, critiques, and patents. Additionally, he is a highly sought-after expert with three decades of experience in litigation and depositions. Professor Abraham has a PhD and MS in Engineering.
Mechanical Engineering is the branch of engineering that studies objects and systems in motion. It applies Engineering standards and problem-solving techniques of engineering.
Thermodynamics is the science that studies the relationship between heat, work, temperature, and energy. Heat is the energy that matches up to a specific amount of mechanical work. It is used in all types of refrigeration, air conditioning, fossil-fuel power plants, spark-ignition engines, and jet engines.