In this episode…

Our guest, Dan Arthur, remarks that getting the best result doesn’t always mean winning, “There’s a lot of times it’s not even about winning or losing . . . You want to do the best you can. Sometimes it’s not up to [you]”. Other topics include ethics, continuing education, and vetting clients.

Episode Transcript:

Note:  Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Dan Arthur Owner at AL Consulting and Energy

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Balmer, and today I am excited to welcome Dan Arthur, President and Chief Engineer of AL Consulting and Energy, a consulting firm with diverse specialties ranging from water management cycle to litigation reports. Mr. Arthur is a registered engineer in 35 States and holds numerous certifications. Additionally, he is a published author and a sought-after expert witness for a wide range of engineering and other matters. Mr. Arthur holds a Bachelor of Science in petroleum engineering from Missouri University of Science and Technology. Mr. Arthur, thank you for joining me today.

Dan Arthur: Thanks, Noah.

Noah Bolmer: All right, Let’s jump into it. You founded AL Consulting almost 25 years ago. Tell me about your company.

Dan Arthur: I had a diverse background before that, and I liked having a multidisciplinary company doing many different things. I am a petroleum engineer and working in that industry I have seen ups and downs, so I kind of like diversity of security. That is what I did with AL. We do many different things and that holds my interest and keeps me going every day.

Noah Bolmer: So, engineering has always been a passion of yours?

Dan Arthur: I grew up on a dairy farm and I decided that that was not the future for me. I have an uncle who went to work for Amoco in 1974 as a petroleum engineer and I thought that was a neat path.

Noah Bolmer: So, he got you into it. You were talking about diversity. It is a diverse consulting practice with a wide range of specialties. How do you and your team members stay current with all of this? In other words, what does it mean not only to be an expert in your field but to remain one?

Dan Arthur: I will tell you, the thing that I have learned and done over the years is I have tried to push myself and the firm to be the tip of the spear sort of thing. We are not commodity guys that you go to. We push all the different points of the things going on and it allows us to do some great things, to have some great learning experiences, and to get to know some wonderful people. Some of the projects that we have done are just. I mean I could name them, and you would know.

Noah Bolmer: Do you do any continuing education? How do you remain current in such a broad field?

Dan Arthur: I do a lot of continuing education. I go to conferences, but I also do many webinars and online courses. This year I have probably done maybe 30 or 40 webinars for other people. That helps me have credit for some of that stuff. I am doing one in the middle of August on Ethics in Orphan Well Plugging. If you look at much of the stuff going on around the country and where the federal government is putting billions of dollars out there to plug orphaned and Idle wells.

Noah Bolmer: How did AL lead to your first expert witness engagement, or had you already been doing that before you even founded the company?

Dan Arthur: Let me let me tell you about my first expert experience and it was not so I am going to kind of duck my head. I went to work for the United States Environmental Protection Agency in the 1980s and I got to do some neat things, but in the first case that I did, I got pulled in the second week of my employment with EPA. I was the only petroleum engineer there, and they thought, “You will be able to handle this.” On the other side of the table were two experienced petroleum engineers, each having 30 years of experience. They were talking about things I understood because I worked there. Then, they started talking about acronyms and other things that I did not know. I did not respond, and the other counsel tore me up because I did not know what they were talking about. Let’s just say we did not do so well. I learned many lessons, and the next night I got the acronym book from the EPA. I am an avid reader. I read two or three books a week. That experience got me to support the first criminal indictment under the Safe Drinking Water Act amendments, where an individual went to jail for about three months for fraud, so it turned around for me.  I had to learn. There is a book that I have read called Falling Upward. It was written by a Catholic priest named Richard Rohr. The point that he makes is you need to fail to learn. That first time I did not have mentors. I did not have people telling me what to do. I had to learn by myself. Failure creates learning.

Noah Bolmer: Let’s dig into that a little. This is something that newer experts are all going to face with their first case. Part of the discussion has to be what attorneys can do to prepare a new expert. An attorney has to know that they are experts that they are bringing on and have not done this before. It is partly incumbent upon them to prepare the expert and tell them what to expect.

Dan Arthur: I will say this. In my firm, I do the majority of being an expert. Over the years, I have had other individuals in the firm work as experts, and I will mentor them. I may be on the phone with them during their first calls. I will talk to the attorney and say, “He has not done this before.” One of our guys was getting ready to testify at a hearing in New Mexico. And he was nervous because he did not have my background. He had never done this before. I had to remind him what he had done and what he could say being a certified expert on the stand. Yes, you do not have all these letters behind your name, but you have done a thousand of these in this area. You know what you are doing. Have confidence. The other thing I have done is get the guys before they testify to go watch another expert testify. That could be helpful. Watch what the attorneys do and the kind of questions they ask. I have done these enough times to understand when the opposing counsel says, “When did I stop beating my wife?” I mean, you know.

Noah Bolmer: Exactly. Let’s talk about them badgering you on the stand in that manner. Do you have any techniques that you like to employ to keep your cool? How do you prepare for being impeached as a witness? How do you prepare for oppositional research that attorneys can sometimes do on the opposing side’s expert?

Dan Arthur: I will tell you from my experience I will talk with the attorneys on my side about the issues we think will be brought up. In the big picture, you must be ready. There are things that you can do to throw attorneys off. I will give you two humorous examples that helped me. About ten years ago, or maybe more, I was testifying on something dealing with hydraulic fracturing. It was when the fracking boom was going on and I was one of the experts in that arena. One of the attorneys from an environmental group was trying to show how bad fracking was. He said, “Mr. Arthur, are you aware that fracking uses sacraments?” I said, “I do not think I am familiar with that.” Then he said, “You are supposed to be the expert, and you do not know what a sacrament is?” I saw his technical person lean over and whisper in his ear, and while he was doing that, I took a sip of coffee. In front of the whole hearing board he says, “I mean surfactants.” I spit out my coffee and the entire hearing panel began to laugh, which frustrated that attorney. He said, “No more questions.”

Noah Bolmer: Oh, that is great!

Dan Arthur: I have another one. I will just encourage any expert listening to this to stay in your wheelhouse. Another time, I was getting questioned on a similar thing and one of the attorneys used this document prepared by the National Petroleum Council as an example trying to show that my testimony did not align with this newly published petroleum industry document that said all this stuff. Many times, what I have found is people use things, but they do not read them. Many times, people are lazy. I try to read everything but anyway, so he is going through this and saying, “Mr. Arthur this document recently published by the National Petroleum Council says the exact opposite of what you said. And I said, “Counselor, can you look at the bottom of that page and look at the reference and tell me what it says.” He said, “Prepared by Dan Arthur.”

Noah Bolmer: Oh, that is exceptional.

Dan Arthur: We all have good stories, but when you are testifying, stay focused on those things that you are good at. When someone like Round Table calls me looking for an expert on something that is not my expertise, I tell them maybe I could help here but that is not my biggest strength.

Noah Bolmer: Let’s talk about vetting calls. Do you turn down a significant number of opportunities?

Dan Arthur: Probably about half.

Noah Bolmer: No kidding, that many. Is it typically a matter of you not having the proper expertise or is it timing or money? Is it ever ethics? Is it ever somebody trying to get you to say something that you do not believe?

Dan Arthur: It is a combination of all those things. I am looking for attorneys who know the legal stuff so they can help me. I know the technical stuff so I can help them. It is an effort. I had an attorney call me and we were going through the interview process when he said, “Well, we have got this thing that we want to say, and this is our message.”  I said, “I can’t. It does not work that way. I can do all the evaluations to see what I come up with.” He said, “Dan, you do this all the time.” I said, “No. I will figure stuff out. I work for plaintiffs, defendants, state governments, the federal government, and private entities so I will come up with one opinion.  I do not care which side.” I did not do that case.  Most times, someone wants a particular thing I know about but not the details. to build A do that. That comes with experience. I know how it goes down the road. You do not want to get into something that you are going to be questioned about. It is like, “Have you ever done this before?” “Well, no, but I read about It.”

Noah Bolmer: Along those lines, have you been midway through and after vetting the call, to begin with, everything seemed fine and in your wheelhouse. Then, it makes a left turn, and you have to research on the fly. Is that something that comes up?

Dan Arthur: Certainly. In most cases, some things cause them to shift in multiple directions. Then, I must do more research, read documents, and get up to speed on many details. I have not had one where I got partway through and had to say, “I need to back away.”

Noah Bolmer: Have you ever had to walk out of a case for any other reason?

Dan Arthur: No, never.

Noah Bolmer: Well, that is good. I like to ask about ethics. When you need to write a report, are you usually given a skeletal outline or are you writing it in full cloth?

Dan Arthur: I have a format that I use.

Noah Bolmer: Oh.

Dan Arthur: I have had multiple Daubert challenges, and I have never failed any of those challenges. I am picky about how I do my reports. Showing the methodology and having it footnoted and referenced. I will tell you that even along those lines, there have been times when I am doing this and I get something that I did not reference, and I get questioned. “Where did you get this?” And I am like, “I cannot remember.” I drive people crazy because I want all the statements referenced but, I use that. The legal teams that I have worked with know that I have been doper challenged. They have been good at letting me proceed in that fashion.

Noah Bolmer: Speaking of reports, have you ever had an attorney try and influence the way that you write a report to make you say something that you would not say, but change the way you would say it to improve their case?

Dan Arthur: I would say that I have had attorneys offer many edits and have things they would pull out to say, “We have got another expert that is going to be handling this part, so do not talk about that. I would say that I have had attorneys who have tried to push in different directions, and I am like you are the legal guy and I am the expert. I may not get you as much money as you want, but many of these cases need experts because they can be complicated.

Noah Bolmer: It seems like you need to be proactive. Is it your experience to occasionally question attorneys and not do everything that they say, the way they say it, and when they say it?

Dan Arthur: I look at it as a team effort. If they are trying to tell me what to do all over the place, we would have a time-out discussion.

Noah Bolmer: Does that happen with any frequency?

Dan Arthur: I cannot remember the last time that happened. All discussions on my reports should include this or not and those kinds of things. I worked with some law firms as an expert, and we do not always think about this. I have consulted judges getting ready to handle a case, and they want to get up to speed by going to the National Judicial College, where they try to learn about things. I like being an expert. I enjoy learning and helping that legal team. The more they understand it, the better they are going to do. Times when people ask me to be an expert and after listening, I am like how could I be your expert? I would probably go against you.

Noah Bolmer: Do you find yourself on the opposite side of experts that you know?

Dan Arthur: One thing that I noticed, and I do not know if you guys have noticed this at Round Table since you see more experts than I do, but especially throughout COVID many senior experts said, “To heck with it” and retired. I testify in an arena where the number of people has shrunk. Many people I used to work with or against are retired or are getting ready to retire. I have other experts that I work with on cases and work against as opposing experts.

Noah Bolmer: How do those relationships affect your performance in a case, or do they not affect it?

Dan Arthur: I do not think they do, but I am a confident guy. When I take on a case, I am confident I can do good. Sometimes, I see other experts that will take on an expert job that are not the cat’s meow for that job. I like that, by the way, because that allows me to do better.

Noah Bolmer: Do you use what you know about these other experts in your field to help your side of the case? In other words, do you change the way that you might write your report or speak during the deposition? Do you talk about the other side?

Dan Arthur: I would say we all do that. If I am meeting an expert I know and we are talking about a case and I can say, “I know he has done this in these other cases and he does not know this stuff. So, I do not know why he’s here.” or “This guy is a ****** and we need to never act together.”

Noah Bolmer: You mentioned winning, and I ask these questions of every guest. Is winning important to you? Do you continue to track the case once your part is finished?

Dan Arthur: I would say that it is important to me. I have not been on the winning side in every instance I have been involved in. You cannot control some things. Some cases are multi-billion-dollar cases where you are testifying on one part and do not know all the other complexities. I like to win because other attorneys will want to use me but, at the same time, even if I am on a case where we lose, I want people to say, “Well, Dan kicked some ****!” or “Dan got us the best result we could have got.” There are many times when it is not about winning or losing. I did one case in a county court and the attorney was so excited about my testimony. He came out afterward and gave me a big hug and it was one of those where they did not necessarily win and they did not necessarily lose. It was a jury trial where the jury’s decision was a split decision. The side I was on got more and they took that as a win. There were many complications, and they had some other experts, not technical experts but guys who were project managers who were also testifying. They did not do well. Sometimes you are fighting battles that you cannot control because of the others involved. You cannot just say I want to win. You want to do the best you can. We all want to win, but sometimes it is not up to you.

Noah Bolmer: Does that affect the calculus as to whether you accept an engagement if it is winnable or do you feel that your side could potentially be the winning side?

Dan Arthur: No, I try to live life and everything with all my cards face up. This is what I tell people. I do not have enough time in life to not tell the truth. I made the basis for our consulting company based on this book called The Four Agreements. I don’t know if you have heard of it, but it says to be impeccable with your word; do not take things personally; do not make assumptions. Always do your best. If you can do those things, you are good. I will tell an attorney in an interview, “I do not think I can help you because I am not going to lie. How this is going to come out and I did one case that was also in county court I was very upfront with the attorneys about what happened. It was a landowner versus an insurance company. I would say that there were good points on both sides, but the landowner had some negative things that I told them about, and they still wanted to go to court. I got up there in court and told them exactly what I told them before going to court and they lost.

Noah Bolmer: But you did your best.

Dan Arthur: That is right. I am not going to fake anything. I am part of the National Association of Forensics Engineers, which is a bunch of experts who discuss this stuff all the time, and if you ever lose your credibility, you are done.

Noah Bolmer: Right. It sounds like you get a lot of business through reputation and word of mouth.

Dan Arthur: For our consulting company and even on the litigation side. I do not do marketing. My marketing is answering the phone.

Noah Bolmer: Right. It is all reputation-based. Finally, let’s talk about billing. Do you typically use a job rate or an hourly rate? Do you use some combinations? Do you take a retainer?

Dan Arthur: I do an hourly rate and we also have a non-refundable retainer. What I do try to do is because I have a team of people and if somebody says, “You need to go pull 200 patents and review them.” You do not necessarily need me to do that. I can have somebody on my team go do those. Some of the research involves doing a variety of things. You do not need to pay me to be the technical editor of the report. I have an editor and she is less expensive than I am. If we are doing drawings or mapping as part of the report, I have a GIS guy. I try to use those things. I will be upfront with the client and the attorney who is billing and say, “I can do all this, but it is going to be more expensive, so I have specialists that can do this at lesser rates than I can. I would say so far that it has worked very well for me.

Noah Bolmer: Do you have any advice for either expert witnesses or attorneys before we sign off?

Dan Arthur: I would just say take on the cases that interest you. I have been fortunate to do some neat cases that keep me going. I would hate to think of doing a case where I did not want to get out of bed if I were getting ready for a deposition, trying to get a report finalized, or starting trial prep. I can tell you that many times at 2:00 a.m. I am sitting with attorneys doing trial prep and you better love it.

Noah Bolmer: That is sage advice. Thank you, Dan, for joining me.

Dan Arthur: You are welcome. Glad to be here.

Dan Arthur, Founder, President, and Chief Engineer of ALL Consulting and Energy

Dan Arthur is the Founder, President, and Chief Engineer of ALL Consulting and Energy, an industrial consulting firm. Their focus is on the various aspects of upstream and midstream oil and gas industry. He is a registered engineer in 35 states, a published author, and a sought-after expert witness.