In this episode . . .

Expert Witnesses need to be on the same page as their engaging attorneys before putting pen to paper. Our guest, Mike Favetta, advises addressing the scope of the initial call and revisiting it throughout the process to avoid wasting time on superfluous matters and keeping within budget.

Check out the full episode for further discussion on initial forays into expert witnessing, demeanor in court, and mentoring.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Mike Favetta, Owner of WeatherPrep, LLC

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome Mr. Mike Favetta to the show. Mr. Favetta is a meteorologist and the owner of WeatherPrep, LLC., a meteorology consulting firm. In addition to meteorology, his expertise spans climatology and the environment. Mr. Favetta has over 13 years of expert witness experience. He has a bachelor’s in Atmospheric Sciences and Meteorology from Keene University. Mr. Favetta, thank you so much for joining me here today at the Round Table.

Mike Favetta: Thanks so much, Noah. Great to be here.

Noah Bolmer: Let’s jump into it. You’ve had an impressive career as a meteorologist, including a 16-year stint in broadcasting. How did you first get into expert witnessing?

Mike Favetta: Being a public figure in the local news sense, [many] attorneys would call the station [and] say, “Hey, I need a quick update”. “I need a quick report.” “Can you look up the weather on this date?” “Was there ice at this intersection? I’m representing a client.” The phone call would initially come to the assignment desk, which is the heart of the newsroom and then either a manager [would] intercede and say, “Whoa, whoa, whoa, put the brakes on. Our meteorologists can’t give away free weather information. There are legal issues.”  I noticed that [it was] becoming more of a trend. I come from a family of judges and attorneys, and without [being a legal professional] and formally educated in a legal space, there was a lot of interest all along. I was also kind of shying away [from] 15 years of waking up at 2:30 in the morning to get to the studio at 4:00 a.m. because that grows old fast. Entering the fun space of challenging my brain figuring out these forensic meteorology cases was exciting. That’s how I entered [expert witnessing] from the basic need and necessity of clients that were potentially out there.

Noah Bolmer: When you got that first call, was it something that you had been seeking or did it just come out of the blue? Did somebody show you the ropes? Did you have a mentor?

Mike Favetta: No, and that’s the funny part. It’s so rare to have another colleague in the meteorology world, hold your hand, walk you through and say, “Here’s how to get to the next step.” For instance, certification. There is a credential that meteorologists can apply for called the Certified Consulting Meteorology Seal. It’s a long, hard, two-year process. One of the first things that [is] needed, and something that delayed me a few years, was recommendations from three other CCMs or Certified Consulting Meteorologists. When you get into this world, it’s hard to look away because it’s so lucrative. It’s fun and exciting. I can see now why other meteorologists and [my] colleagues did not want me to enter this space. [They] didn’t want to give me that little boost because it’s a fun, closed network but also challenging to break into. [Many] of the initial forays I had into the space were advertising; trying to get my name out there. [I] even asked some of my family members who had their own law firms “How do I get in this space? How do I represent and become an expert witness?” They [said,} “Michael, it’s all about referrals. You can’t advertise and you can’t just show up and say, “Hey, do you want to pay me a couple hundred dollars an hour to work on this case for you? That’s not the way it works.” Over time it was the referrals from other attorneys that I worked with [who] saw my work [and] were so impressed by the detail and how much it helped them in their cases. .Once I finished working with them, or even had the initial phone call, I got three phone calls from other attorneys in that same firm because word got out that, “Hey, this guy is really good.” [It] was exciting to broaden my network organically without spending a lot of time or money on advertising. Just through word-of-mouth references.

Noah Bolmer: When you first got into [expert witnessing] and before you had things like references, tell me about some of those first vetting calls. What sort of questions are attorneys asking a potential expert witness? What’s your calculus for deciding whether you’re going to accept an engagement?

Mike Favetta: I think it relates to ability. You [must] know your limits and one of the precedents for obtaining that Certified Consulting Meteorology Seal is staying within your limits in terms [of] your expertise. Don’t try to guess. Don’t try to theorize what it could be. Seek out the help of another expert meteorologist in that specific field, should it come to that. Staying in your lane is probably the most important thing, I’ve been told by attorneys who want me to remain credible and only give facts [related] to the case. I think initially, it was a challenge for me to know facts versus expert opinion because there’s a fine line as to what the facts were, what the expert was opining on, and what could be fact. That was a learning curve for me when I started.

Noah Bolmer: When you talk about staying in your proverbial lane, let’s talk about what exactly that lane is. How do you remain on expert in your field? How do you know what that expertise is? What are the kind of things that expert should be doing to broaden it? Or do you think have a niche is preferable?

Mike Favetta: I would say about 90% of my cases in the last five years have been slip and falls on ice.  It’s been personal injury [cases g] where there have been melting and refreezing scenarios. Any attorney can get the blue-ribbon seal certified data from NOAA or NCEI, formerly NCDC, to find the weather at a nearby airport at a certain time, but that just gives you total inches of snow. It doesn’t necessarily represent ice and doesn’t represent the melting and refreezing at a certain location like a parking lot. Recently, [many] cases have been localized. I’m in the New York City metro area where we have three main airports, plus a few smaller municipal airports that have good weather stations and good data but, if there’s a small snow squall over Brooklyn, population in the millions, and [it] does not pass over an airport, you could have a slip and fall scenario a few miles away from JFK airport without the airport weather station ever finding snow that day. I have developed and used some interesting techniques in the last few years that help the attorneys I work with hone in and defend (or postulate for the plaintiff) and give them extra information to see if they want to go in a particular direction with their case. I have fine-tuned that over the last few years [by] developing a product that in report form, is affordable and helpful to the hiring party.

Noah Bolmer: When you say you’ve developed some techniques that aid the way you go about expert witnessing, can you be more specific? Can you share any of what those techniques are?

Mike Favetta: Sure. Some of them relate to different weather station networks. While some National Weather Service-owned and operated weather stations [are located] at the big airports, there are newer technologies at local weather stations, called the Mesonet. They are run by the University of Albany and funded by New York State. These weather stations have the same, if not better, capabilities than some of the Weather Service stations. They are not meant for aviation or long-term climate purposes but focused on what’s happening at a location a few blocks away from a potential location or premise where the accident took place. It helps to get a fine resolution, minute-by-minute analysis of what is happening nearby. There [are] also remote sensing techniques. We talked about the in situ, the locations on the ground, and the weather stations nearby. There is also a powerful weather radar that can give you an idea of what happens high above our heads, 5,000 feet up. If the radar detected some snow and that snow made it to the ground [over] the course of several hours without hitting a weather station you can provide data and show some concrete evidence that there was frozen precipitation at a particular location. I have even used solar angles and 3-D renderings to simulate the shadow cast [from] a tall building. It was this 20-story housing complex in New Jersey where there was ice on the shadowy side of the building. It was winter when the sun angle was low, so calculating the sun angle and showing [it] in graphic form in a report was exciting, and it opened the eyes of the attorney that there [were many] different ways this could be used. It’s almost like CSI weather. It’s fun.

Noah Bolmer: I imagine that most of the time, nobody who you’re working with, either the attorneys or the judges, is a meteorological expert. I imagine a good part of your job is educating. What are some of the techniques that you use to communicate some of these more complex topics to judges, juries, and your own attorney?

Mike Favetta: I think my teaching background as an Adjunct Professor of Meteorology at Kean University, where I graduated, [has helped]. Teaching the Intro to Meteorology class to hundreds of students over the years has opened my eyes. That one-on-one interaction lets me see where the general public’s starting point and overall knowledge of a certain subject is. How could I make it understandable and digestible to them? The last thing I want to do is throw facts, figures, acronyms, and technically scientific things that [bores them] to death, like a scientific paper. I [want] to make it something digestible they [can] apply to their daily lives. I think one of my and my students’ favorite lab activities is for everyone [to] take out their phones and look at the weather for their particular location. Every app uses a slightly different technique or algorithm to forecast and predict the weather [including the current weather]. When you ask your phone or digital assistant what the weather is it reads a weather model run 6 to 8 hours before that grabbed weather balloon data [from] 12 hours before that. [The data is] old, and [many] times it doesn’t align with the actual forecast or what’s happening outside your window, I make sure my classroom had the shades rolled up and they had a full view of the sky. We would look out and say, “Okay, is your phone accurately representing the weather outside?” [Many] times, it was not. I think [it] was eye-opening to [see] how the weather changes so rapidly, and here’s why. Once the students understood the why, it got them intrigued. I think that’s how I’ve intrigued my hiring parties and the attorneys I work with – there really is a lot more than just the phrase […] “I wish I could be wrong every day and still get paid.” [The] sort of thing you hear about meteorologists.

Noah Bolmer: You indicated that you’ve done work for both the plaintiff and the defendant side. Do you find that there is a significant difference in the way you approach those different types of engagements?

Mike Favetta: It’s my job to provide the facts.  I will, if I discover any information or evidence that could potentially hurt the side that hired me, it is in my best interest to advise [them] over the phone. I think that was one of my initial mistakes when I was starting out. WeatherPrep, my company, is 10 years old this year. I’ve had dozens of cases over the years, but in the beginning, I wish I knew that you have to be [on] the phone with clients and hiring parties exclusively until you come to sort of an agreement of what should be stated and what should be said in their report because giving information that could hand the entire case over to the opposite party is not in anyone’s best interest. Once it’s [on] paper and once it’s published, even though I title everything attorney work product and emails it still could be detrimental. That [is] something I could have done better and something [I wish] I [had known when] I first started –  not put things in writing so quickly.

Noah Bolmer: On the topic of report writing in general, what’s your strategy? How do you go about formatting your reports? Do you typically get an outline from the attorneys, or are you writing whole cloth?

Mike Favetta: [Many] times it will be in the initial consultation. What do you want out of me? The last thing I want to do is spend 10 hours of billable time giving the attorney fluff that is useless to their case. It’s not in anybody’s best interest. If I can get from Point A to Point F and do B, C, D, [&] E in between highlighting those points, I want to do it in the most efficient, timely, cost-saving way possible. [To answer your] second question, [many] times I will have an introductory call [asking for] the cost of a final report. [They say,] “I have some questions on the fee schedule.” It depends. Certain attorneys want the short main points [version] to keep [things] as inexpensive as possible.  Others, after my initial 10-to-15-page analysis with maps, charts, and data will say, “I want to focus more on this point, can you give more details about the time around the incident? I think that’s going to help the case.” They [have] asked me to do more billable hours, so, there’s going [to] be a high expense, but if it helps their case and avoids a trial by going to summary judgment and be positive for the client in general, that will be the deal. It takes into account the hiring party’s goal and strategy. I’m willing to do whatever it takes and work through the problem making sure there’s enough hard evidence there [to] make a stronger case for the client.

Noah Bolmer: When you’re writing a report, there [are] a couple of distinct types of reports. There [are] your initial reports [and] your rebuttal reports. Is there any difference in the way that you approach those two types of reports besides the obvious, which is a rebuttal report is a little easier because it comes already done for you. Do you approach the problem any differently?

Mike Favetta: I know that the listeners can’t see my face, but I’m turning red laughing hard while you’re asking the question because this happens quite often. I mentioned before there [are many] new meteorologists entering the space and they don’t necessarily have the tools, the toolkit, or the experience to know what’s acceptable and what’s not. I have in the past destroyed the opposing expert’s report to the point where the rebuttal was longer than my initial report because it had so many holes I had to plug and point out. [Much] of it relates to the continuing education aspect because I find [when writing rebuttals] specific issues with the young newbie meteorologists that [recently] got their seal or don’t have one yet (I assume because [of the] expense, so they don’t charge as much) or the experienced, retired/emeritus meteorologists who don’t keep up with continuing education and haven’t been to a weather conference in several years [or] decades. There’s new technology, new information, and new weather warning techniques out there, specifically in the space of slip and falls with snow and ice. There was recently a report that I rebutted that completely omitted the new snow squall weather warning, which only came out a few years ago. It helped our case that it was left out. In pointing it out, there are ways of doing it tactfully… but also,  “How did you miss this? It was so glaring. It’s right there. It’s public data.” [It} has been fun to [say] “You messed up. You should probably know about this.” There [have] been rebuttals that I’ve received from the opposing expert, and they’ve been nitpicky and little superfluous things that the party that hired me to do a great report was like, “Wow, you covered all your bases because this other expert can’t find a single hole in your paper. He’s taking one sentence you wrote and turning it around, [and] still gets to the same answer. He just says [it] a different way, because there’s nothing else to rebut.” Those [are] the winning moments where you get excited because you did a good job, and you were so thorough, that your peer review passed the test.

Noah Bolmer: We’re at [the] point [where] you’ve written your report [and] let’s say, that it’s going to deposition or even trial. How do you control yourself when you’re being peppered with lots of questions? How do you maintain your demeanor? What are your suggestions? [What are the] techniques that you use [to] present yourself as an authoritative person, a relatable person, and somebody that the judge, the jury, [and] whoever’s deposing you can trust?

Mike Favetta: In my experience, it’s been sort of an act when you’re being deposed or on the stand. Being tactful is important. Not losing your cool is first and foremost, but I think providing the correct and most concise answer in an educated [way] and [with a] delivery that [does] not talk down to someone and feels relatable to the jury. The last thing I want [is] to portray is somebody who goes up there with his nose held high, like I know what I’m talking about, and what I say is the gold standard, etcetera. It’s [a] fine balance of all the above.

Noah Bolmer: Is that something that [you can] be trained for? Is that something you develop? Or have at the outset?

Mike Favetta: That’s an excellent question because I related back to my time in broadcasting. I was always told that it’s a talent that you need to have to be an on-air personality. In the sense of being an expert in depositions, or on the stand, there is some innate talent that allows someone to do an excellent job. Some can be learned, but [much] of it is talent. Over the years, I’ve had dozens of interns, [who] were my students when I was in broadcasting, that wanted to be the next on-air personality after college. [They wanted to be] the next Al Roker [or] Sam Champion. [Many] times it [didn’t] work out for them because as much as they practiced, as hard as they tried, and as much work they put into [it], they didn’t have that innate talent. Eventually, they give up, […] I think that to be an excellent expert witness, write the papers, and be the scientist, there’s [a] just as important trait of having that innate ability to present in person, in a deposition, or on the stand, because that can help or hurt a case.

Noah Bolmer: You mentioned earlier how important continuing education is because you never know when you’re going to face some new technology or something that may be brought up in a case. Obviously, you did not have this benefit when you were first getting started. How important is it to be able to pay it forward and help, in your case meteorologists, but generalized to any expertise? [How important is it] to have somebody kind of show you the ropes and bring you up?

Mike Favetta: For starters, when I was beginning in this area, [during] one of my first big cases, I sent my report to another meteorologist that I knew was up and coming in the space (not necessarily in consulting; he stayed more in broadcasting). [It was the] idea of “Hey, can you look this over? Can you give me an idea if I missed or omitted anything?” Just kind of another perspective and kind of check my work, if you will. There have been other instances where new, younger meteorologists have wanted to break into the space. For two of them, for instance, I’ve been more than happy to assist them as much as possible without divulging all the secrets, if you will. It’s important for friendly competition because older retiring meteorologists will ultimately need to be replaced. At the same time, there are enough meteorologists out there working for individual firms. There have been [many] conflicts recently, and that’s how I tend to get some of my work. A hiring attorney goes to an expert firm and says,” Hey, can you help out with this case?” But that firm already represents one of the parties in another capacity, whether it be weather forecasting, etc. Having more meteorologists in the pool will keep the environment healthy.

Noah Bolmer: One common thing, especially for meteorologists, is to liven it up with a little levity. A couple of jokes. How appropriate is that in a courtroom setting? Is there room for levity or a little lightness, the occasional joke, or does it have to remain incredibly serious throughout the process?

Mike Favetta: I haven’t found the opportunity yet, at least in depositions, because most cases are serious. They involve near-death, permanent dismemberment, or things that, at least in the cases I’ve worked on, require pain and suffering. It’s hard to provide levity in that case. My best advice, in any realm, [is] it’s always important to just read the room. If there is a judge, for instance, that wants to keep a certain part light, maybe makes the first joke, and tries to lighten the mood a little, [then it] would make more sense [to] help gain that relatability. I would say to err on the side of caution and not be the first to enter that space. I did it once [when] I was giving a professional talk. They say if you’re speaking to and orating to a large room, maybe start with a little joke and see where it goes. I started the talk and well this joke did not go over well. [There] was just silence. [You could hear a] pin drop and I [thought] okay, guess I’m not doing that [again]. In my experience, it would always be best to let somebody else set the tone.

Noah Bolmer: One thing I hear from many expert witnesses is that your duty is not to the client, but to the truth. What is your view of neutrality in expert witnessing?

Mike Favetta: I would say neutrality is key. It is super important because there have been less than three cases of mine where the hiring party has asked me to do something and, in my mind, I’m thinking, “Take a hike. I don’t want to work with you anymore.” If you’re asking me to go under oath, sign an affidavit, and put in writing something that I don’t think I could defend. Those are the [attorneys] that I [want to] lose my number. Don’t call me again. I don’t need this stress. I’m not a hired gun, if that’s what you’re looking for. I’m going to give you the truth. If information comes to light that could hurt you, I won’t put it in writing, but be prepared when the other expert finds it, and we’ll have to come up with [an] answer. Neutrality is key. Remember that you are working for someone, and it’s in your best interest to find facts that would help them.

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

Mike Favetta: I would say to be yourself, especially in the initial consultation. Stay professional but some of the cases I’ve received from initial calls [have said] “You’re so relatable.” [An] attorney [was] like, “Oh my gosh, I love you so much I’m canceling the other appointments and interviews I had this afternoon. I want you.” I [thought], “Wow, that was easy.” I think being yourself, showing your personality, your expertise, and what you can do makes it a good attorney-client relationship in terms of your expert work. That has worked for me and I’m sure it’s something that could work for many.

Noah Bolmer: Mr. Favetta, thank you so much for joining me here today.

Mike Favetta: Thanks, Noah. Great to be here.

Mike Favetta, Owner of WeatherPrep, LLC

Mike Favetta is the owner of WeatherPrep LLC, a meteorology consulting firm. He has over sixteen years of broadcast experience and is an expert in meteorology, climatology, and environmental matters. Mr. Favetta holds a BS in Atmospheric Sciences and Meteorology from Keane University.