David Smith 00:00
All right, welcome back to the Expert Witness Podcast. I’m your host, David Smith. One of the things I’ve always enjoyed is sitting down and talking with other experts about their work and hearing their stories. Today, I’m excited to sit down with Fred Smith, who is the President of Alpine Engineering and Design. I’ve had the opportunity to work with Fred over the last 15 years, and he’s been a mentor to me as I’ve started in this business. I’m excited to have him share some of his wisdom with all of us as we talk today.
Fred Smith 00:37
I’m not sure about wisdom, but we’ll see.
David Smith 00:41
All right, so Fred is a mechanical engineer with a bachelor’s degree from Cal State Long Beach. He’s a licensed professional engineer and a certified safety professional. He’s been working as a consulting engineer, helping companies solve their most difficult problems through his design and analysis work. Over his 40-year career, his design work has led him to being listed as an inventor on over 80 patents and has been retained as an expert witness on over 500 cases, with more than 100 of them being patent cases. He’s testified in deposition over 100 times and has testified in trial over 40 times. So Fred, welcome, and thank you for joining us today.
Fred Smith 01:23
Good to be here.
David Smith 01:25
All right. Expert witness work seems to be a little-known career choice. You don’t usually hear kids talking about how they want to be an expert witness when they grow up. So I’m always curious, how were you introduced to this field of work?
Fred Smith 01:43
Yeah, it’s not something they even talk about in engineering school, if that’s even a choice that you might have. So how did I get involved in it? I started working with my father, who had a design consulting business. Previous to his consulting business, he had been a vice president of engineering at several large corporations, and one of them was involved specifically with the design of garbage trucks. Because he had done so much in that field, he was asked on a number of occasions to testify when someone got caught in a garbage truck or whatever. So I became familiar with that as a result of working with him. Now, he didn’t like doing expert witness work at all, and he did some, but that was not his cup of tea. As time went on, I took over more of the operation of the business. I actually made the decision that that was something that I’d like to add to our company. Our company at the time primarily did design work for other people, and I just thought that that would be a good thing to add to our business.
David Smith 03:31
It’s interesting that expert witness work takes a specific kind of personality, if you will. It’s definitely not for everyone.
Fred Smith 03:42
That’s for sure. You got to have a pretty tough skin.
David Smith 03:46
Absolutely. So when you were getting into the business, were there any barriers or obstacles that you had to overcome? Did the cases come slowly, or have you been in high demand from day one?
Fred Smith 04:00
Yeah, I wish that were the case. It’s interesting because the first thing you have to have, obviously, is the right knowledge and experience in order to get into that expert witness work. Then I found that there are some other barriers because no attorney wants to be the first one to use an expert that hasn’t been battle-tested. So one of those barriers is, have you ever actually been retained on a case before? That first case is kind of tough to get sometimes. And then the next barrier is they don’t really want to use someone who has never been deposed. That’s always a question that seems to come up for new experts. And then the third barrier is, have you ever testified in court? All of those are things that a new expert might get asked.
David Smith 05:16
Absolutely. So, how did that work for you? Was it over the course of a couple of months or over the course of a couple of years? How quickly did you start getting cases?
Fred Smith 05:31
So, as I think back on it, we did a lot of work for other companies. I had worked for the Vice President of Engineering for a company who ended up going out on his own and doing expert witness work. I got a call one day from a plaintiff’s attorney about doing a case. I’d never done a case before. It ended up that this former vice president ended up being the expert on the other side. It was a case on a garbage truck where they were lifting a rear loader container up into the garbage truck, and it got knocked loose by the packer panel and swung around and crushed the guy operating it. It was actually kind of an interesting case because it was the first bench trial I ever did. In fact, I’ve probably only done two or three since then. But the judge, actually his undergraduate degree was in mechanical engineering. And something I found has treated me very well is using models, visual aids, and things like that to present a case. In this case, I had a model of a rear loader garbage truck with a winch that I could operate on the top of the truck to raise the container. People couldn’t figure out how the container could swing around 180 degrees and smash the guy on the side of the truck. So I made a model of the truck and the rear loader container and was able to raise it up with the lynch. And then I practiced being able to kick one side off and show how the container would actually swing around. So we’re in trial, I had actually done the experiment showing that the packer panels could actually raise that container up out of the latches, and had a video of that. The judge asked me the question everybody had, how does this swing 180 degrees, and I said, let me show you. The judge was interested and asked me to do it multiple times. He even took it back to chambers with him. Long story short, it ended up being a good verdict for the plaintiff. Winning your first case, the plaintiff did get a good outcome. After that, I got a case here and there, but it took a long time before word of mouth got me more and more cases all the time. That’s primarily how that part of the business grew.
David Smith 09:36
Okay, yeah, very neat. So you told us about a garbage truck case. Are there any other types of cases that you commonly work on?
Fred Smith 09:49
Yeah. Because our experience is pretty broad and because I have over 80 patents, we’ve got two different areas we work in. The first is product liability, like the case I just told you about. The other area is intellectual property, patent cases. On the product liability side, because we’ve designed so many different pieces of equipment, we get called on for a wide range of things. We’ve designed rescue trucks, cranes, aerial lifts, lift gates, exercise equipment, high thrill rides, agricultural equipment, and because we have all of that experience, we make good experts in both product liability and intellectual property. The advantage in the intellectual property side is not only do you have to be experts in mechanical engineering, but it’s also extremely helpful to understand the laws and things that go into intellectual property. That’s what makes our engineers good intellectual property experts.
David Smith 11:29
Absolutely, yeah, I’ve found that oftentimes, it’s more about your understanding of patent law than understanding the actual technology that creates good arguments in a case.
Fred Smith 11:45
Sometimes the technology is pretty easy, but knowing what has been out there before and being able to find the proper prior art, if you’re looking to invalidate a patent or why something wasn’t obvious when someone came up with a design, those are all arguments that, if you’ve been in the inventing world, it’s a lot easier to understand.
David Smith 12:28
Yeah, absolutely. Very good. So what’s the type of work that you do? Are most of your cases local, or do you work nationwide?
Fred Smith 12:40
Yeah, so, we have some engineers at our company that do premises liability. Most of that is local. Most of what I’ve done in my career is more designed for certain types of equipment that we have expertise in. We do stuff nationwide. I’ve done stuff nationwide, even around the world, but most of my testimony is here in the United States.
David Smith 13:21
All right. So what do you enjoy about expert work? Why do you do this type of work?
Fred Smith 13:38
I guess the biggest thing I enjoy, well, there are a number of things. Probably the first thing is really getting to help people, whether it be either side of a product liability case. Sometimes, someone has gotten hurt and they shouldn’t have. Sometimes a piece of equipment really is safe, and someone just did something really stupid. Probably the biggest thing is really getting to help people. Another thing would be working with really bright people. You get to rub shoulders with some really good attorneys. Hopefully, the good ones are good to work with, but most of the attorneys I’ve worked with are really good. It’s not just the attorneys; it’s also other experts, either on your side or even on the other side. A lot of times, I learn some really neat things from rubbing shoulders with really bright experts on the other side of the case. So those are some of the things I like. It’s also, most mechanical engineers love breaking things, testing things, running things over big bumps, and seeing what happens. We get to do all of that, which sets our engineering company apart. We do a lot of testing and support of our opinions on both the product liability and IP sides. On the IP side, you get to help people protect their competitive advantage, either by showing that a patent is valid and infringed, or conversely, that a patent is invalid. I also enjoy strategizing with the attorney on how to get my opinions across in a report, deposition, or trial. All of that, to me, is a lot of fun.
David Smith 16:29
Yeah, absolutely. A lot of good things there. Now, when people end up getting hurt, it’s always sad and unfortunate that they got hurt. But, finding the right person to blame is important. The first person they point the finger at isn’t always the responsible party.
Fred Smith 16:51
Yeah, that’s true.
David Smith 16:55
All right. So have you ever been reviewing information for a case that you’ve been retained on and found out that you are definitely on the wrong side? And if you have, what did you do?
Fred Smith 17:10
You know, what we try to do in those situations is when we first get contacted, I like to get enough information about the case so that you have some idea of the factors you’re going to be considering. Frankly, sometimes, even with a lot of cases, there’s a black area, a winnable area, and a big gray area in the middle. But sometimes the black area is a lot bigger, and sometimes the white area is a lot bigger. There have been instances where after the attorney explained the case to me, it was so one-sided that I told him I wasn’t interested in taking the case, and frankly, that I didn’t think he had a case. Sometimes you have to dig into it a bit, and even at that point, after you’ve dug into it a bit, you may find out that you really don’t have much of a case. In those cases, a good attorney is going to want to know where his case stands. They don’t want to spend a lot of money pursuing a weak case either. So there are many times where we get contacted just to evaluate the case. I recently did a case where we inspected a piece of equipment, and the problem was caused by the owner making changes to it, and he was protected by worker’s comp. So there wasn’t much to do on that case. But we were hired to make that evaluation. The sooner you can do that in a case, the better. I recall another case where the manufacturer swore the problematic part was manufactured by them. I wanted to make sure that was the case. We looked at some other pieces of their equipment and found the same exact piece on them. I told the attorney that I didn’t think the client was being forthright and that they should resolve the case. To their credit, they did.
David Smith 20:59
Yeah, that’s interesting. Sometimes, you don’t have enough information before you’re retained to make that determination. It’s not until you really dig in that you figure out that you’re really not on the right side of things. But you know, most attorneys I’ve worked with are the same way. They want to know the strengths and weaknesses of their case so that they can make the best decisions for their clients. They don’t want to be strung along thinking they’ve got a great case and then have the expert flip-flop during their deposition or at trial.
Fred Smith 21:13
Yeah. That’s worse. And the reality is, a good expert is going to want to give that information because there needs to be a trust level between the expert and the attorney. So the attorney knows that the expert isn’t going to change their opinion 180 degrees from what they were told before their deposition. That’s the worst. The other thing is, as an expert, and we may get into this more later, but you want to make sure in your opinions that you are honest and consistent. Whether we do all defense or all plaintiff, we do about 50/50. I don’t find any difficulty doing that generally because I’ve always tried to be honest in my opinions and consistent in how I apply engineering and law to those opinions.
David Smith 23:16
Literally. All right. So, talk a little bit about the things that you like about expert work, but we know that no job is perfect. Is there anything about the expert witness industry or the work itself that bothers you or rubs you the wrong way?
Fred Smith 23:42
Oh, yeah. You are often at the beck and call of the attorney. Sometimes, through no fault of their own, you may get a short timeline and have to finish a report in a few days that should have taken a couple of weeks. An attorney may try to limit the time you spend on a case, and sometimes it’s not enough time to do a good job. That’s a big issue to me because most of my work has come from word of mouth. If you don’t do a good job on a case, your opinions may get excluded, and you may lose that word of mouth because the attorney thinks you’re a jerk for not doing the job you needed to do. Those are two of the things involved in the day-to-day stuff. Frankly, with most jobs, some attorneys are jerks to work with or at least act like jerks, especially in depositions where no one’s going to see it, or maybe a judge will, but no jury. Depositions can be tough, especially when you’re starting out. Attorneys try to make you look inexperienced, like you don’t know what you’re talking about, that there are inconsistencies in your testimony, and that you’re not the expert you claim to be. Having tough skin is essential, knowing your stuff is crucial, and ensuring everything on your CV is accurate is a must. One of the advantages of this business is working with really bright people, but if you make a mistake, they’ll find it and bring it out. Make sure your opinions are based on solid engineering, haven’t made mistakes, and have a good basis for all your opinions, and express that basis. Missing any of those will lead to a tough deposition or trial. Some things you have control over, but others, like timelines, you don’t. Some attorneys are better at keeping track of those. Knowing the timelines ahead of time is helpful when they first contact you. Sometimes, if they’re in a tight spot, it’s easier to break into expert witness work, even if it means pulling all-nighters. So, those are some of the minuses of being an expert, often tied to the pluses.
David Smith 29:05
Absolutely. All right. So, this is always an interesting discussion topic for me, depositions and trials are usually thought of as serious and well-planned out events. But if you’ve been to a few of those, you know that’s not always the case. So, have you had any particularly lighthearted or funny interactions during a deposition or trial you can share with us?
Fred Smith 29:34
Actually, I would say that I think that is incorrect. I think trials, they try and plan them out, but they are probably one of the most fluid things you will ever experience because you don’t know what the other side’s going to do or say. I’ll give you an example of one of those, and then I’ll tell you a funny experience. One time, I was testifying in a case on a rear loader garbage truck, and I wanted to explain to the jury how a rear loader garbage truck works. I had these nice PowerPoint presentations ready, and I was about to show them when the other side objected and got them thrown out, so I couldn’t use them. I got a big pad out and drew everything to explain it. It ended up being just as effective, but it certainly wasn’t planned that way. Another time, I was on the stand and had taken photographs at an inspection of a forklift lifting a big piece of granite. I wanted to show the jury, but the other side objected, and it got thrown out. The jury wanted to see it, so it worked against them. I also had a model to use to explain some things, and he objected to that as well, but the jury wanted to see it. We got a 100% defense verdict on that one. Experience helps you assist the attorneys in getting in the stuff you want to present. Now, onto the funny experience. I had a case in Wyoming, and I knew the people there appreciated a down-to-earth approach. So instead of wearing my best suit, I dressed more casually in a sports jacket and corduroy pants. The opposing attorney was from Beverly Hills, California, dressed to the nines with diamond cufflinks and monogrammed everything. He was asking questions, and I was answering them. He was getting madder and madder. He even started pounding on the pulpit. The local attorney leaned over to the one I’d worked with and asked if he should say anything. He replied, “Let this one go.” After a few more pounds on the pulpit, the judge said, “Mr. So and so, we don’t treat our experts like that here in Wyoming.” Needless to say, it was another 100% defense verdict. Attorneys usually don’t want to come off looking like a jerk to the jury.
David Smith 36:21
Yeah, absolutely. All right. Yeah. They probably didn’t have a very good day after that, I’d imagine.
Fred Smith 36:28
Well, the jury wasn’t out very long. He pretty much lost that just as a result of how he acted. And I mean, we had a good case, obviously. But you know, he totally lost the jurors in that instance.
David Smith 36:49
Yeah, it’s interesting. I’ve found that sometimes, it’s really how the attorneys are, but more often than not, when they’re getting mad or frothing at the mouth or just charging after something, it’s more of an act than how they actually are. I remember one deposition I was in, the two attorneys were just going at it after each other. You know, they’d ask me a question, and they’d object, and they went back and forth for 10 minutes, just yelling at each other. And then at the end of the deposition, when we were off the record, they said, “Hey, you want to go get lunch after this?” And I was like, “What on earth is happening?” You know, turns out they had been good friends. They’d done a ton of cases against each other. And, you know, that’s just part of the act, part of trying to get the best results for their clients. So, yeah, sometimes it works out, sometimes it doesn’t, I guess.
Fred Smith 37:49
Yeah, for sure.
David Smith 37:52
Alright, so a few more questions for you, if you will. If you were going to give someone who had just been retained on their first case, one piece of advice, what would it be?
Fred Smith 38:05
That’s easy. Be honest and consistent in your opinions. You know, if you want to do this as a long-term situation, you can’t afford to not be honest and consistent. If you start flip-flopping around, you’ll get skewered. And, you’ll get excluded. It can ruin your career. Not only that, but attorneys want to work with someone who is honest and consistent, and will let them know where they really are in their case. You know, sometimes the jury makes interesting decisions, regardless of how the case is presented on each side. But, good attorneys, particularly, really do want to have the straight scoop and want to be involved in the case. There are sometimes where you’ve got warts in your case, and you just, frankly, have to own up to the warts. And the attorneys need to know what those warts are ahead of time and how you’re planning on handling those. That’s just part of it. I mean, generally, you don’t have a lawsuit unless there’s a big gray area in the middle. If it’s totally one-sided one way or the other, it usually gets settled pretty quickly.
David Smith 40:03
Yeah, absolutely. Absolutely. So, what do you find makes a good expert or helps the expert be persuasive in a deposition or trial?
Fred Smith 40:20
So, again, well, that’s a loaded question, actually, David. It’s interesting because engineers have a tendency to be right-brained, you know, those are the ones that will sit in the corner and do calculations all day and never speak to anyone and be tickled pink. That was their day. Maybe that’s left-brain; I don’t remember. I think that’s left-brain. Anyhow, whatever. The reality is, for someone to be a good expert, they really have to have both left-brain and right-brain. You have to know your stuff, and you have to have that all put together. So you know what your opinions are, you know what the basis for your opinions are. But then you have to be able to open your mouth and express those opinions in a way that someone on a jury, or your attorney, or the opposing attorney, is going to understand your opinions. Sometimes that’s difficult to do, especially for people who don’t have experience being in front of an audience, so to speak. So I think that answers your question.
David Smith 42:01
Yeah, absolutely. You have to be good at more than one thing to be a good expert.
Fred Smith 42:07
Yeah, and you have to have the technical expertise, but then you have to be able to express that and know what the basis for your opinions are. Know when to stand your ground and know when to give up ground. You know, I once had an attorney tell me, you know, if you’re on the stand, and someone says, you know, “Are you the son of Hitler?” and you are, you just say yes. And, you know, the reality is, the more you make of those difficult questions, the more you make of them, the more they get implanted in the head of the jury that, “Oh, wow, this is something super important,” even though it may not be.
David Smith 43:15
Right. Yeah, absolutely. All right. So, most experts, I’ve found would like to be involved in more cases. You’ve done quite a few of these. What have you found to be the most effective marketing techniques or the best way to get new cases?
Fred Smith 43:36
Well, I think we’ve discussed that already. But the biggest thing is to do a good job. You know, if you do a good job as an expert, you’ll get repeat business, you’ll get additional business from word of mouth. One of the things that I didn’t realize as an expert is, how closely attorneys work with other attorneys, even in other firms. You know, there’s a lot of like product liability groups that a lot of them will all be a member of, and, you know, it’s not uncommon for them to say, “Hey, I got a case regarding blah, blah, blah. Anybody know a good expert that can handle it?” And that happens all the time. So, you know, the vast majority of work that you’re going to get as an expert is going to be repeat work, if you’ve done a good job for them, and they like working with you, and work that you get from word of mouth. You know, I did a case down in Texas many, many, many years ago, 30-plus years ago, and I apparently did a really good job. In fact, that’s actually a funny case, but we won’t have time for that. And as a result of that single case, I’ve done many, many, many cases down in Texas. And, you know, I can actually tell you, you know, this attorney got my name from that attorney, who got my name from that attorney, and all of that work down there. And we haven’t sent mailers out or anything like that. All of that work down there has come from that single case that I did down there.
David Smith 45:56
Yeah. That’s great. Alright, so what has adding expert witness work to your business’s offerings done for your life and your business?
Fred Smith 46:11
Oh. Like I said earlier, this was a decision that I made. You know, like I said, my dad hated expert witness work. Frankly, there are some times where I hate expert witness work. But most of the time, I actually really enjoy it. There’s a part to expert witness work, if you’re good at it, that’s a lot like invention, that has a lot of the same things that invention has that make it fun. You know, there’s a few, like we talked about, that make it not so fun. But you have that in invention too. Things don’t go right. You think things are gonna work this way, and it doesn’t, and you have to scratch your head and find out why it’s not doing what it’s supposed to do, etc. So, adding expert witness work has made us better engineers on the side of stuff for design, because we look at things differently now. We’re way more cognizant of safety in design than I was when I got out of college because they don’t teach an awful lot of that. You may have a class or two or maybe a section in the class or two about safety and design, but you don’t get an awful lot of that. So, it’s actually improved our business in many ways. It provides some financial stability for the business that’s allowed us to continue doing design for new products and to feed other areas of our business. It goes both ways in our business because we still do engineering work. That makes it so that we’re able to do more work in the product liability side. Frankly, I think most attorneys like the fact that we’re still actively doing design work. So, I think the two sides of our business have been very synergistic, one feeding the other. I think from that perspective, it’s been good for both sides of our business.
David Smith 49:15
Yeah, that’s great. Thank you. So how can attorneys find you if they want to work with you? What’s the best way? Give yourself a chance to pitch.
Fred Smith 49:27
Well, the easiest way is to go to https://alpineeng.com/. That’s our website. You can see all of our experts and download their CVs. We’re always open to a telephone call, and that first telephone call will give you our initial thoughts. If you’ve got a case, you can call us at 801-763-8484. If we’re retained, we’ll also give you our cell phone numbers, so you can reach us anytime. Those are the primary ways to get a hold of us.
David Smith 50:19
All right. Well, thank you, Fred. It’s been a pleasure.
Fred Smith 50:23
Yeah, it’s been fun.
David Smith 50:25
You’ve got a wealth of knowledge and a lot of good stories. So I appreciate you sharing some of that with us today.
Fred Smith 50:31
Oh, I shared a few of them. There are tons of stories. Every case usually has a story. We’ve been very successful in the cases that we’ve done, and I think a lot of that is because we’re a little bit choosy in the cases that we take. We really feel that we’re on the right side of the case, and it makes it a lot easier to testify in good faith.
David Smith 51:06
Absolutely. All right. Well, thanks, Fred. Take care and have a good day.
Fred Smith 51:12
Thank you very much.