IMS Insights Episode 48: Chemical Engineering Expert Witness Experience & Discovery

Chemical engineering expert and IMS Elite Expert Terry Livingston discusses the role of an expert witness and the advantage of working with experts early in discovery. (Part 1 of 3)

IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 45,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at imslegal.com.

Transcript

Hello and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg.

Today, we’re speaking with IMS Elite Expert Terry Livingston about the role of chemical engineers in manufacturing, early case development, teaching concepts to juries, and virtual depositions.

Terry Livingston is a chemical engineer with more than 20 years of experience in chemical plant design and operations. He has experience in oil and gas refineries, including the design of chemical and petrochemical manufacturing facilities. Terry’s experience also includes the storage and handling of chemicals, process-safety management, and process control failure.

Adam Bloomberg:

Terry, thank you for joining us today. I wanted to start with a little bit about your background. You're an expert in chemical engineering with over 20 years of experience. Let's start from the beginning. Why don't you explain what a chemical engineer does?

Terry Livingston:

Technically, a chemical engineer applies chemistry and mathematics to manufacturing processes. To take a material that's not as valuable and turn it into something that's more valuable. In a layman's way to say it, we take things and make them better. We make products that are useful for modern life.

Adam Bloomberg:

You do a fair amount of work related to chemical plant designs, operations, standard of care. Why don't you give us a little information on that?

Terry Livingston:

My career has largely centered around manufacturing, continuous and batch processes to make intermediate materials, some consumer goods and some pharmaceuticals, for example, that go into both a wholesale and the retail market. So it is largely focused on manufacturing, although chemical engineers do many other things, such as applied research as in electronics, manufacturing, even space-age materials. It's a very diverse, broad field, but mine mainly has focused on manufacturing.

Adam Bloomberg:

Okay. So I’ve got to know, how does one become interested in wanting to be a chemical engineer?

Terry Livingston:

For me, it started with a love of chemistry and mathematics, and my father was a first-generation engineer, so that also helped to inspire me in that direction. The technical side of school really interested me. I think when the teacher would start talking about haiku, and onomatopoeia, I think my eyes would gloss over, but to be able to take a problem and solve it, that was intriguing.

Adam Bloomberg:

Well, I got to tell you, for me, when you say chemistry, typically, and probably back then my eyes would've rolled back and I would've thought, maybe I'll go over to the English, maybe that would be better. But I heard you say something about your father, and I'm guessing that he was one of your mentors in your development and your career. But why don't you talk maybe a little bit about one or two of your mentors and how important mentors are, for all of us, in our careers too.

Terry Livingston:

It's important to look at role models and mentors. One, for example, my very first job in a chemical plant was in 1982, and I reported to a World War II soldier. He had been a foot soldier who’d been shot in the war, and his approach to management really helped me because he was very direct and he laid out very clearly what he expected, and there was no gray area about what he expected. And he, I think, helped formulate me to understand that it's important to show up to produce, to deliver for whatever client we're working for. And he, as an example of a role model, of course, my father, several professors in college, like Dr. April at the University of Alabama, for example—in heat transfer. My approach to role models and mentors has been… And really for everyone…

I look at people, and I try to draw out the best characteristics and aspects and apply those to my life. We can learn something from just about everyone to look at their strengths. When I talk to someone in this field, what do they really do well? How do they do it, and how can I adopt that? And so, from everyone that I meet, I try to look at what they do well and to use that in my own career.

Adam Bloomberg:

Well, let's jump forward a little bit. So, you've been working in this industry for more than two decades. I'm curious to know, outside of the work with plant design and operations, how did you get your start to work in the expert witness field?

Terry Livingston:

There were a few opportunities here along the Gulf Coast, and I was actually contacted through IMS in Pensacola. And given the opportunity to look at these cases, the first one was actually an environmental case involving groundwater and I worked diligently in that case, we had a favorable result for the client, and I think some good feedback occurred and that just led to a few more phone calls. And most of the work that I do is through the firm IMS in Pensacola. Occasionally, I will get a call from someone not associated with them, but that's pretty rare.

Adam Bloomberg:

On the consulting side of our business, we're constantly thinking about what does a jury think about a case, how does a jury see a witness and are they believable and all of those things? But I'm guessing that if I'm the jury, I might see your video deposition that was taken in the case. And if we're at trial, I'm going to see you in the courtroom. But why don't you talk a little bit about, you first get engaged in a case and you're part of the development of the case with your specialty. Maybe talk a little bit about that.

Terry Livingston:

Depending on the complexity of the case material, I may come in very early because sometimes there are materials that the attorneys struggle to get their arms around. So, I'll even help them and have helped them in discovery to ask the right questions. Let's get the correct material, let's get the things that we need that are relevant. And in many cases, if we're dealing with chemical reactions, if we're dealing with complex materials, they need some assistance to really understand even what to ask for. So that is a real key role that I play in early case development and discovery. In some cases, the material may be more understandable or amenable to attorneys, and then I'll come in. They will provide me those materials, and then I'll develop opinions based on what they give me. That also happens quite often. But I think, Adam, it really depends on the complexity of the technical material.

Adam Bloomberg:

If you're hired in early and you're helping in that process and you're being deposed, can you talk a little bit about knowing a case could go to trial? What is your approach to educating when you're in the deposition? Obviously, your audience is the opposing counsel, but ultimately, it's going to be the judge and the jury. How do you talk about some of these really dense things related to chemicals and the makeup of chemicals? What's your approach to educating a wide audience of potential jurors, judges and counsels?

Terry Livingston:

Well, first all, if it's possible, I try to present the material in a way that is no more complex than it needs to be. So, there's no need to involve jargon or lingo. That's not part of everyday life if it's not necessary. However, there are situations, and it's happened to me where we must talk about a very complicated technology or product material. And I try to use everyday analogies. I will take the chemical engineering situation and translate it into something that you and I and everyone deals with in everyday life. And many cases we can take something very complex and compare it to something in our lives and then we can all understand it. Couple of examples, we were talking about the effect, the Reynolds number of forcing factor of clearing materials in a packed column. 

Well, Reynold’s number is sort of nebulous and abstract to most people, but the way I could explain it is very similar to washing dishes, where using the faucet with just normal water pressure, the dishes don't get very clean. But when we pick up the spray wand and now we have velocity, the cleaning effect is much better. And that's what's happening in the distillation column. But that's an analogy that we all can relate to. The velocity of the material helps clean the column; it helps clean the dish, as an example. So those type of everyday analogies is helpful to the jury, I think to... So we can all get our arms around some of the issues in a case.

Adam Bloomberg:

That example you just gave me as the average juror potentially, and I was just thinking about, we installed one of those hot water dispensers in our kitchen, and it's extremely hot. And I've noticed that if you take a dirty dish and pour that on with very little pressure, everything immediately comes off, so that's kind of an interesting way that I have thought of that is that's another factor that can come into play when you're explaining something like that. Okay. So, at the deposition level, I'm always curious because when we're helping on our jury consulting side, we're helping to prepare witnesses and prepare visuals to be used in the deposition. But I want to know, as an expert witness, I'd love to hear some of your experience. What's it like being cross examined?

Terry Livingston:

Well, it is important to me to be very well prepared. And so, I always try to be very well prepared for a deposition and especially for cross examination; I think that really lowers the stress level to be able to be prepared and be confident knowing that you have the material under your control, you're very conversing in it. So, in terms of the technical side of it, I'm very comfortable with the deposition of cross-examination, and I also try to steer clear of issues that I didn’t opine upon in the report, or that may be more legal matters. I want to talk about science, chemistry, engineering. And as long as we stay on those topics, I'm very comfortable with it. There are situations where you know you have a large audience. In one case, I knew that there were dozens of attorneys on each side watching the examination in another room virtually and then others remotely. 

So, it's important to be careful the way that you phrase things, the way that you characterize things. But I will say even in that case, where I was in a very important and challenging environment, that I was also very careful to the way that I phrased things. And the attorney afterwards, I asked one of them, "how would you characterize my testimony?" And the attorney said, "I wouldn't change one single thing." And I was only supposed to testify for two and a half hours. It was 11 hours on the stand.

Adam Bloomberg:

Oh boy.

Terry Livingston:

“I wouldn't change one single thing.” So that's a credit I think, to being well prepared. Anytime you're going to give a deposition or be examined or cross-examined. There's no substitute for preparation. 

Adam Bloomberg:

So, you mentioned a little bit about, I think it was virtual depositions or you might have other counsel in a different room and they were watching a video feed. During the pandemic, when you were deposed, did you approach depositions any differently? And I mean that you've brought up some fantastic analogies that me as a viewer have been able to paint a picture of my mind. But are there differences when you're not in the same room? For example, I'm using hand gestures here to communicate, or if you are going to have to explain a complicated process, do you approach a deposition that's virtually any different than you would an in-person deposition?

Terry Livingston:

No, the preparation is the same. The same level of commitment, the same level of involvement. I will say virtual depositions tend to be, in my experience, a little more clunky because the documents have to be retrieved; they have to be shared virtually. In a live setting, they're usually pre-prepared in books, and you simply get handed a package of documents or an exhibit, for example. So, I think the live testimony is easier on everyone to facilitate, but the actual technical structure is the same.

Adam Bloomberg:

So, moving to trial now, I know you've done a lot of different depositions, but you were mentioning, you and I were speaking earlier that you had a trial last year. What was that like? You're walking into the courtroom. This is the very first time you've been in front of a judge and a jury for an actual trial. What's going through your mind when you testify in that situation?

Terry Livingston:

I want to be as accurate as possible. I want to be as clear as possible, and I want to choose my words carefully so that I present the case material in the proper way. And I tended to make it less about me. I didn't focus on myself. I really focused on the hearers and what they needed to hear, and I wanted to convey that clearly. I wanted to facilitate them. I want to help them understand the case material. And so maybe for the first few seconds or whatever, you have a little bit of anxiety, but it quickly goes away when you realize you have a job to do and let's do it to the best of our ability to benefit those who have a very important decision to make. And that's my focus.

Adam Bloomberg:

So, is this an eighth-grade science class sort of environment for you, knowing that you have a really wide range of backgrounds to that is your audience?

Terry Livingston:

I think you have to be cognizant of the audience and you have to be aware. For example, I can be in a room full of attorneys, and they start talking about case law and this plaintiff versus this defendant and so I've never studied it. I don't understand it. And I realize the shoe can be on the other foot. Most people haven't studied chemical engineering. So, my job is to take case matter, case material, and help convey it in an accurate way that tells the right story, and that's defendable, that's legitimate, that's justifiable. 

Thank you to Terry Livingston for speaking with us today, and a special thanks to our listeners. 

At IMS, we’re trusted to deliver consulting services to the most influential global law firms early with pre-suit and investigation services, then in litigation during discovery, arbitration and trial. It’s been our privilege to serve our clients on more than 20,000 cases and over 2,000 trials. Be sure to subscribe to our podcast and join us next time on the IMS Insights Podcast.