Episode #46 – Forensic Engineering

Author, forensic engineer, and insurance industry expert Tim Christ joins the podcast to discuss forensic investigations for fraud and how his book on this topic: Becoming a World-Class Expert: The Business of Forensic Engineering came to be. Tim talks about how mediations can be used to resolve claims, what a client should look for when hiring an expert, the importance of preparing expert witnesses just like preparing fact witnesses, and how experts can be used to thwart injury claims by plaintiff, and more.

Full Episode Transcript

[0:05] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences, Inc. I’m Dr. Bill Kanasky, litigation consultant at Courtroom Sciences. With me today is my good friend Tim Christ from Texas. Tim, how are you doing today?

[0:23] Tim I’m wonderful, Bill. How are you?

[0:25] Bill Damn, uh, well, it’s Friday, you know? Thank God it’s Friday. Another, uh, another long week in the, in the COVID era. Uh, by the time this broadcasts, we’ll see if we have a president, who knows? But between COVID and, uh, social, uh, unrest and political pressure, boy, it’s, it’s kind of exhausting. So it’s good to do the podcast and be able to not talk about that stuff. Tim, tell us about your career because I find you a very intriguing figure. You’re a non-attorney, but you do a lot of work, uh, in the legal industry. Can you tell our audience kind of your area of expertise and the services that you provide for clients?

[1:04] Tim Sure. So I, I really grew up in the insurance business as a forensic engineer, even though I didn’t have an engineering background, uh, with the goal of me ultimately transitioning into the sales and marketing and business development side of that business. Uh, ultimately ended up transitioning into the executive management side of that business. And, uh, so yeah, I just grew up really and learned, you know, everything about, you know, investigations and then mediations and trials and managing experts and, uh, and whatnot. And really just fell in love with the insurance business. And so just been working in that really for almost 20 years now.

[1:39] Bill Okay, when you say you fell in love with insurance, I’m not buying that. No one—you got to be honest on my podcast, come on. I hear the word insurance, I start to get a headache. But if you say you fell in love with it, okay. Um, Tim, tell us about your book which you graciously sent me a free copy of: Becoming a World-Class Expert: The Business of Forensic Engineering. Tell us about, uh, tell us about what’s in the book and what, um, what was the kind of genesis of this book? Why, why, why did you write it? What were you trying to accomplish?

[2:16] Tim Sure. Well, I guess I can answer a couple questions for you there, Bill. So one of the reasons I fell in love with the insurance business is when you’re investigating insurance claims, it’s something different every day. And so what I found, you know, in the forensic engineering business is we were like CSI, but for real. And so, you know, just like being Sherlock Holmes. And, you know, what’s funny about insurance claims is in a lot of claims there’s some element of fraud. And so, you know, we have to go out every single day in the investigation process and just have in the back of our mind—not that it has to be involved in this claim—but there might be some element of fraud here, right? Whether it’s an exaggerated, uh, claim or, or some element of, you know, causal analysis that, you know, creates a contractual issue or other.

So, um, it’s always fun just to see people at the best and worst of times and try to navigate that road, right? So that was just, that was really what became fun for me. And so I ended up traveling globally doing these investigations, um, and so my passion became to build a forensic engineering business in Mexico City. And so, um, was ultimately able to accomplish that. And the reason I wrote the book was one of my key employees that helped me build that business down there, a guy named Tony Larva that was a Venezuelan mechanical engineer—he passed away from cancer in 2017. And so I wanted to do something to honor his memory.

And so I had probably 50, 60 percent of the book written in either client-facing stuff that we’d written in articles or whatnot, or in training materials that we used. And so over the holidays in 2017, I sat down and I said, “Let me finish, you know, let me finish the book here,” and, uh, published it in early 2018 in time to speak—I’m a speaker at the URMI’s International Energy Conference every year—and so I published it in time to get it in front of that conference. Um, and then his family was just over the moon obviously with, uh, you know, honoring him in that book. But that was really the impetus to write the book was to honor his memory.

But in the book, I just basically, I lay out what the insurance business model looks like, um, how the insurance claims process works, and then I talk about different types of forensic investigations. I talk about vehicle accident claims, I talk about property investigations, I talk about cyber claims, I talk about professional liability claims. Really helping people to use the actual case study to then understand the concept of the insurance contract behind it and hopefully be able to help them accelerate their careers faster. Because at the end of the day, I think, you know, all of us have been, you know, successful, our job is to reach down and pull others up. And so the book was one way that I try to help, help other people have a faster journey than I did, because it took us several years to figure out the insurance business unfortunately. Um, and I’d like to be a little more strategic, you know, the next time we do something like that.

[4:52] Bill Well, it’s a very complicated business as you know. You did a great job with your book. As a litigation consultant, uh, I have to deal a lot with insurance companies and so I wore my favorite shirt today because this is the message I have to the insurance industry: “Go hard or go home.” Because what makes me nuts about the insurance industry is oftentimes it’s more reactive than proactive, and a lot of saving pennies over here but you’re exposed to millions over here. Doesn’t make a lot of sense. So try this—trying to sell to my clients to be more aggressive, be more proactive, uh, because that’s what the plaintiffs bar is doing today. They’re very, very proactive.

And I know that, um, you’ve, uh, looked a lot into things like mediation. I think mediation, I think there’s a science behind mediation. I think that, um, the defense, uh, oftentimes has a great opportunity in mediation to resolve the case at a fair value. Can you talk about, um, your thoughts about, um, the role of experts, uh, and how they can be used in a mediation to hopefully resolve the case in a fair, equitable way?

[6:07] Tim Yes, that’s a great question. Um, I think that, you know, sitting in on, you know, well over 100 mediations, um, when we were trying to resolve a number of claims, what you start to see is patterns, right? And so, um, if you have both sides that are coming to mediation with the honest intent to settle, or at least the honest intent to understand the position of the other person, I think you can advance the ball. But I think if you have a, at least on the insurance side, if you have an adjuster that says, “Well, I’m not gonna write a check over X dollar amount and I don’t care what else gets shown at me,” um, and they may not have all the facts, uh, you know, when they make that particular determination, right?

And so part of the role of the expert in mediation is, you know, I’ll sit down with that opposing expert and we’ll hash through the facts of the case. Are there some gray areas that maybe, you know, he found that for some reason we didn’t find, or if there’s some information they were privy to that we were not privy to? Obviously that can dramatically influence, you know, our ultimate opinion. And so really the, the role of the expert is: let’s gain a true and complete understanding of what all the facts are. And then that way I can go back and advise my client in the side room to say, “Hey, based on this new information that, that has been made available to us, here’s my range of opinions.”

And at the end of the day, you know, I’d say, you know, the insurance business at the end of the day, it’s a business, right? Everything should be about return on investment. And so the business side of my brain has always really enjoyed the insurance business from, you know, if it’s going to cost us more to investigate than the actual loss is, let’s just pay the claim to walk down the road, right? And so, so that’s the way I really view the strategic role of experts in mediation is to make sure that a complete analysis of all the facts is gathered, uh, present to your client the range of opportunities or the range of ways that this thing could go based on what you know, and then let them make a business decision, which is really what they’re needing to make in mediation—make a business decision about: do we spend another 20 or 30 thousand dollars in litigation costs to push this thing forward or do we settle for this what should be a fair dollar amount?

Or, you know, occasionally the other side is completely unreasonable, the facts are not on their side, and they want to, you know, they want to roll the dice and take it to trial and see what a jury of 12 says, right? So in those cases you can’t do anything. Although I will say, you know, you can have some short presentations obviously in mediation where I provide some information and it allows the other side and the other side’s, uh, client to see what I’m going to say in trial. And so it sort of gives them a bit of a peek behind the curtain where they can say, “We’re going to have to overcome this if we choose to move forward.” And sometimes it helps a plaintiff attorney to some extent—I say plaintiff because I work for both sides—but occasionally it can help that other opposing attorney to reconcile the expectation side on their client side as well when they start to see the mountainous evidence maybe against them—and you know, helps it helps to bring them more in line with what a reasonable or amicable conclusion can be.

[8:57] Bill Excellent. Now, whether you’re a plaintiff or a defendant, what, what, what should a client look for when hiring an expert? Because I—just because somebody is an expert doesn’t necessarily mean they’re a very good witness, yet they may be an expert, right? So what, what advice would you give clients on when picking and choosing, what kind of things should they be looking for or maybe even be like, be aware of?

[9:24] Tim Yeah, so that’s a really complicated question, um, because it really depends on the type of case that you’ve got, right? So in general I’ll tell you that like, for example, property damage cases never go to trial. So in, in that vein, I don’t have to have—I mean while it would still be nice to have the best expert possible—I can have a more junior engineer still go out and give me, you know, full assessment as long as they’re, as long as they know what they’re doing, give me a report that I need to know, and likely that claim’s gonna settle. But if it’s a personal injury claim or if it’s a, you know, a patent litigation or it’s, you know, some other higher likelihood of trial opportunity, um, type of project, then I think that that changes the bar as far as where you need to go look for your experts.

Um, but in general obviously you need to have somebody that’s got an incredible amount of experience in that field, you know, ideally has worked for both sides because then—I mean I hate to say it but it’s the truth—there are experts that play, play one side or the other. And I mean I’ve, I’ve torn reports to shreds where guys have chosen to only include the facts that supported their conclusion. And so you really want somebody that’s, you know, simply fair and impartial. I always say that the expert should really be an advocate for the court. The expert’s role is not to determine who wins or loses; the expert’s role is to determine and explain: here are the facts of the case, based on the facts of the case here are the likelihood of reasonable ways that this thing went down, and then let the two parties decide based on contractual language and a variety of other things and case law what, you know, what likely should come as a result of that.

And so, um, the experts should be impartial, but obviously we live in an imperfect world and so we’ve seen both sides. But yeah, they should definitely have experience. You obviously if you’re gonna have the potential of a trial they need to be very well spoken, they need to be thoughtful. You know, you don’t want it to be their first rodeo and deposition or trial either, because there’s a number of rookie mistakes that can made by any, uh, expert. You know, you being a litigation consultant are well aware of that. Prepare every, every witness, not just expert witnesses, but the need to prepare every witness because—it’s so funny—I’ve been in mediation and trial several times where, you know, we prep somebody and then all of a sudden they get in that chair and what we just talked about 30 minutes prior they completely forget about and their mouth runs off with them and you’re like, “Oh my god, what just happened?” And it just crucifies you in some cases, right? And so that’s the, that’s the reality of what happens. So, um, you know, obviously us, you know, having seen the full spectrum of it that we, we can have an ironic view of it, uh, and more of a, uh, not—I don’t want to say a sarcastic view because that’s not correct—but we can have an experiential view of it to say, “Here’s the best practice for this, for how you need to manage this.”

[12:05] Bill Yeah, and I’ve seen some terrible, uh, expert witness testimony and you’re right, it’s not because the person’s trying to screw it up. Typically it’s one of an emotion gets involved, they have this amygdala hijack, and that happens because, listen, experts are human beings, they’re not robots, right? Um, but I would argue, I would strongly argue that experts, um, just because they’re experts in their field don’t mean that they’re, they’re expert witnesses per se, meaning that they have the right communication skills. Can you talk about how it’s important to prep the expert just like a fact witness? I mean they have—they’re human, they have communication skills, and while they have this very specialized knowledge, they’re still going to have to come across likely to a jury one day. Can you talk about how it’s important to really put the experts through that type of preparation and not just let them wing it because they’re smart and they’re an expert in their field, right?

[13:04] Tim Yeah, no, absolutely. Well, I mean there’s, there’s a lot of things that come into play. I mean, obviously when you get the benefit of having looked at a number of extra reports and been involved in a lot of different cases, I mean every now and again I’ve had guys that have written reports that had a small error in them. And so part of the preparation piece is: oh crap, I didn’t realize. You know, I mean, we had a fire case one time where, you know, the, the report actually said that the wind came out of the north and really the wind changed direction during the, during the course of the fire. And so when the lady, you know, when the opposing attorney said, “Is this your report? You know, is everything true and correct?” we immediately said, “You know what? There’s actually one error that we, you know, that we need to correct from that report.”

And so it totally threw her off of her game because she had already expected to walk us down the road of “Everything’s true and correct, yes? You know, so you testify that everything here is true,” and then boxes in and then all of a sudden say, “Well, isn’t it true that this other piece of evidence contradicts your report?” And then, you know, then would there have been, you know, reasonable doubt created in the minds of the jury at least to that, you know, evidentiary issue. And then she would also obviously try to blow that up to say, “Well, if we can’t trust that was correct, why can we trust anything else in your report?” Right?

And so, um, preparation is key. Um, but you know, there’s just a lot of little nuances with expert witnesses and testimony. For example, you know, experts need to understand that you have to stay in your, in your very narrow lane. And so, you know, great example of that is fire investigators. You know, if the fire is caused by some electrical issue, the fire investigator needs to have very clear testimony to say, “You know, I found the area of origin of the fire to be in this area, but then based on the investigation done by an electrical engineer, he determined that there was an electrical short that ultimately caused a fire, blah blah blah.” But if he just says, “Oh yeah, well, the fire was determined by an electrical failure,”—”Oh, you’re not an electrical engineer, are you Mr., you know, fire investigator?” Well, of course not.

And so there’s just, there’s some word smithing that needs to happen there, which is all—comes down to preparation and practice. Uh, and there, you know, then you know obviously you, from the, from the litigation side, there are, you know, a number of plaintiff attorneys will try to ask those multi-part questions. And those get very, very dangerous for experts. And so what we always counsel our experts is: guys, you know, number one, ask them, say, “Would you please separate out those questions and I’ll answer one at a time?” because that takes a lot of the risk out of the equation.

But then two, you have to be very careful that you, you know—obviously a lot of us are smart and so we already think we know where they’re going and so we have the tendency to want to be helpful and want to volunteer information. And that’s a typical thing to do in litigation. And so answer the question only that they ask and be very, very brief in your response. But then, you know, especially in those cases where there is some potential gray, there’s a discussion on the strategy side to say: what’s the right way to answer this question that likely will put my client in a better position, whether it’s for mediation or ultimate trial, where I’m still telling the truth, but at least it’s a, it’s a better guard for kind of what their ultimate position is? That’s an advanced technique that obviously you need to get through a number of trials before we start to teach that. But I mean there is some real advantage to having an expert help the attorney—their own attorney—box in the other side on where they can take the case.

[16:18] Bill Absolutely. Now, you had mentioned a story in the past. You purposely tried to wreck a truck? What in the world? Like, my 16-year-old did that, I think he tried to wreck my truck—he did a really good job at it. What happened with you? I got to hear the story.

[16:35] Tim No, that was, that was a really fun case. I, I say fun—you know, obviously, um, when it—they’re all projects. And so unfortunately this particular case, there was a lot of loss of life involved, so three people died, a number of other people were seriously injured. But it was a, it was a commercial tractor trailer, um, with a large grocery chain here in Texas. They got into a wreck on I-35 outside of San Antonio. And the part of the question became—as the truck and a dump truck impacted together very early in the, in the sequence of events and then they ultimately end up wrecking a number of other passenger vehicles—and so the question became: well, did the tractor trailer impact the dump truck first or did, or vice versa? And so, which—what ultimately is the root cause of the accident?

Because otherwise it was the commercial tractor trailer CGL policy that would pay out, or well, actually they were self-insured to a fairly high level so it would have been a, you know, their personal payout. Or did, you know, did the dump truck have some liability here? And so since, you know, we couldn’t determine based on the evidence that was available at the scene exactly what happened, it was a large enough case obviously with the, with the dollars involved where our self-insured client said, “I’ve got the, the next truck that came off the production line from Kenworth. I will give you guys that truck to go try to recreate the accident. And if you can wreck it, you know, showing that the dump truck impacted us first, obviously that’s huge for us. And, you know, I’m not trying to sway your opinion one way or the other, but I want to, you know, if you can determine this through testing, we will absolutely, you know, fund that, that exercise.”

And so we get to take the commercial tractor trailer out to a test track in Valley, which is about an hour and a half outside of San Antonio, and literally try to wreck it on purpose. And so yeah, we, we very rarely get to do experiments in the expert witness arena. Um, but to actually get to try to wreck a truck on purpose is a whole lot of fun.

[18:19] Bill That is, uh, that’s a first. I have not heard about that one before. Uh, to wrap up here, Tim, can you tell us—yeah, a lot of my clients are dealing with, uh, claims in which the plaintiff is obviously exaggerating the extent of their injuries. This has been going on a long time; it’s not slowing down. Can you talk to me about how the biomechanical engineer experts can be used to maybe thwart some of that and to maybe prove some of that wrong to show: no, this report of the injuries is actually impossible because scientifically I can explain it as the expert?

[19:01] Tim Yeah, no, that’s a, that’s a great question. Um, it’s interesting because it does vary a little bit by jurisdiction depending on where you are in the country. Um, most, most attorneys will use medical doctors to try to prove an injury causation and then prove the extent of injury, and they try to wrap it all up into the, into the doctor. But you can insert an additional expert into that arena, which is a biomechanical engineer as you mentioned. Because the doctor is really only the person that says, you know—they take the patient in, “Hey, how did you get hurt?”—they take the report from the patient. Their job, the doctor, is really not to determine the mode of injury; their job is determined: are they injured? And if so, what’s the rehabilitation process?

And so if you can—if you know, and like I said, not, not all courts are, are favorable to this interpretation, but some are. Um, Southern Louisiana generally does not like the, the additional layer of complexity, but a lot of courts are. But if you can say, “Hey, the biomechanical job is to determine the forces that were at play in this accident and determine whether or not the injuries that are either reported and or sustained by the plaintiff are true and correct as a result of this particular injury.” Now, the, the one that happens all the time is the low-speed back, back injury where, you know, you get rear-ended at five or eight miles an hour and then they say, “Oh my gosh, I’ve got a herniated back and I need surgery,” and all these other things, and the plaintiff is, you know, 55 years old.

Well, we all know—you know, Bill and you and I are, you know, we’re getting, you know, gray hair now and for what little we have—And so, you know, we, we’ve all got back problems once we get north of 40 years old. And so, you know, just because we’ve never had an MRI of our back before doesn’t mean that we didn’t already have problems prior to that incident. And so the biomechanical engineer can look at the forces involved, the accident—what they call the delta V, the change in velocity—and based upon the positioning of the plaintiff and, you know, whether, whether they turned or not, which seat were they in, what was their bodily reaction as a, as you know, to the injury, um, and then basically link that to say: either these injuries that they claim to have sustained are true and correct, or they’re likely exaggerated. So, you know, biomechanical, biomechanical engineers have had a lot of really good wins across the country in different jurisdictions because they help to parse out those injuries. And so if you can take a claim from “Oh my god, I have to have surgery” down to “You know what? They need, you know, they’ll see a chiropractor for six visits and they’re good”—well, that’s a, that’s a thousand dollar bill, you know, we’ll call it a day, and they’re asking for, you know, 150 or 300,000 dollars for surgery. So they can be highly beneficial, you know, in the right circumstances.

[21:36] Bill Makes sense to me. So Tim, let’s wrap up here. How can our audience get a copy of your book, or how can they contact you if they want to talk to you about claims issues or expert witness issues?

[21:48] Tim Sure, I appreciate that, Bill. Uh, well, they’re welcome to reach out to me at tchrist@cccis.com, or I’m pretty visible on LinkedIn; you’re welcome to connect with me there. Um, and, uh, yeah, the book is available on Amazon. You can Google Becoming a World-Class Expert: The Business of Forensic Engineering. Uh, you can get it on Kindle or paperback. And just, you know, really appreciate the opportunity to hopefully share some insights with your audience today and, uh, look forward to, like you said, COVID being over and being back in a normal travel schedule. And I sure hope that in 2021 we’ll be back at conferences live and in person. So—

[22:21] Bill Tim, thank you so much for being on the podcast. Ladies and gentlemen, thank you for participating in this podcast, Litigation Psychology Podcast, Courtroom Sciences. Dr. Bill Kanasky signing off, see you next time. Thank you.

[22:34] Tim Take care, Bill.