I have served as an expert witness roughly 15 times since 2016 in Ohio, Pennsylvania, and West Virginia, representing individual mineral property owners as well oil and gas producers. The following summary of my experience and a typical engagement is obviously not meant to teach attorneys about the legal process, but to inform other technical professionals about what it is like to be an expert witness.
The disputes have been varied, from surface owners arguing over the true ownership of mineral property, working interest owners arguing over prudent operations, to mineral owners suing an operator for mineral trespass. In some cases I have been asked to testify as to “who is correct” or “what should have been done”. In most cases, I have been asked to calculate damages.
A typical engagement will start with an attorney for either the plaintiff or defendant reaching out to me with some basic facts of the case. Upon request, they will send me the legal complaint which spells out the underlying facts and nature of the dispute in much more detail. If I think I’m a good fit for the case, we will get under contract and get started.
The first phase of the case is called Discovery. During this time, attorneys for each side formally request whatever relevant documents they will need to prove their claims or disprove the opposition’s claims. Often there will be thousands of pages of documents produced electronically for review. Most law firms have access to software for storing, paginating, annotating, and otherwise dealing with the huge number of documents. One of the first things an expert witness can do to make themselves useful is to recommend items that should be requested in Discovery. Particularly in the oil and gas industry, which is both highly technical and full of jargon, often the attorneys do not know what the expert will need to do their analysis or what those items are called. The expert witness should outline all the types of analysis they may need to perform and the facets of the case to which they will opine, then make a “wish list” of all the documents and data they would need to do so. The attorneys should compile this list into a Discovery request as soon as possible.
Once these items have been received and reviewed, the expert will perform their analysis and document the methods, results, and conclusions in an Expert Witness Report. Reports from opposing experts are exchanged and scrutinized. Besides writing a great report themselves, one of the best ways an expert witness can help counsel is to point out what is wrong, lacking, or inconsistent with the opposing expert’s report. Certain errors or inconsistencies may be too technical for the attorneys to notice and the expert should explain how these flaws impact the overall conclusions and/or damages claim put forth by the opposition. This may generate additional Discovery requests or lead to Rebuttal Reports issued by the experts. At some point during this phase of the case, attorneys will request to take the depositions of the opposing expert witnesses.
For the uninitiated, giving a deposition under oath can be a nerve-wracking experience. The process involves an attorney from the opposing side asking the expert hundreds of questions about their education, experience, qualifications, potential conflicts, and how they went about performing the analysis that led to the conclusions in their expert report. With the overall goal of trying to prove the expert unqualified, conflicted, and/or incorrect, the opposing counsel will try to catch the expert being inconsistent and making biased, unjustified assertions. The best defense for an expert witness is to write a rock-solid report in the first place and to speak truthfully, confidently, and succinctly to the methods and conclusions of the report. The attorney will try to get the expert witness to ramble, or even try to make the expert angry or unsure of themselves. In my opinion, friendly stoicism backed up by thorough preparation is the best tact for an expert witness to take.
After depositions are taken, there may be revised reports or additional Discovery requests. The opposing sides may try to settle one or more of the claims. If no settlement is reached, the case will move forward by scheduling the trial. At the trial, the expert will be on the witness stand answering questions under oath during direct- and cross-examination. The attorneys will give a line of questioning designed to prove or disprove the claims of the case. While the expert should be cognizant of where the line of questioning is leading, again the best tact is to be friendly, stoic, confident and, most importantly, honest. As an expert witness, it is not your job to win the case singlehandedly by making a great argument. It is your attorney’s job to ask a line of questions, the answers to which they already know, that are supportive of their argument. Another way the expert can help during the trial is to suggest questions for your attorneys to ask the opposing expert. This may help them cast doubt on the opposing expert’s qualifications, reasoning, or conclusions. Ultimately it is the judge and/or jury who decides the outcome of the case.
Once a law firm finds an expert witness they trust and have had success with, they are likely to hire them again for other legal disputes. Serving as an expert witness is both challenging and rewarding, and I believe it has sharpened my technical skills by having to defend my work under the pressure of deposition and testimony.
If you are in need of an expert witness in a dispute related to the oil and gas industry, please contact me at wes@castope.com.