Alex Mendez on Expert Witness Credibility: Why Working Both Sides Makes You More Valuable
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Ted: I’m always curious, what motivated you to be part of the podcast?
Alex: I think any opportunity to talk about what we do, the facts of it. I love to share it and candidly, sometimes with podcasts you’re able to learn a little bit more about yourself too.
Ted: Hopefully I help you learn a little bit about yourself in here. Just to recap, the podcast is to help the expert witness community. I help the experts with their web design and SEO to help them get more clients and that’s where the idea for the podcast came from, to really get inside the attorney’s mind.
Ted: Thank you so much for being here. At the beginning, feel free to talk about you, your law firm, who you help. Think of it like your elevator pitch. Take it away.
Alex: My name’s Alex Mendez. I’m one of the partners at Shrader Mendez. We do a whole gambit of things at our firm, which I think helps us on the criminal side when we have a civil background, and on the civil side when we have the criminal background. On the criminal side, we manage second-degree misdemeanors all the way to capital cases.
Alex: So the full gambit: murder, sex crimes, everything in between. On the civil side, we do a lot of personal injury, a lot of business-to-business litigation, a lot of consumer work. It’s always good to have that experience on the civil and criminal side because you’re able to learn arguments that work on one side and actually apply them to the other. I will say though, I think criminal cases are more civil than civil cases, and civil cases are more criminal than criminal cases.
Ted: So the civil ones, is it because there’s more emotions involved?
Alex: I think there’s emotions and money involved. When money and emotions mix, sometimes people get jaded and have a perspective that isn’t realistic. So I think that always plays a role in it.
Ted: Interesting. And I guess, not to get too off topic, but have you ever seen a civil case where maybe at the beginning the family was like, “Oh, we all love each other,” and then at the end when there’s money involved, they’re not so likable between each other anymore?
Alex: Yeah, unfortunately. I can’t think off the top of my head of a case where a family member sued another family member. But I can tell you in cases where there is a lot more money involved, or there’s exposure to potentially having to pay money, you could tell as the case gets to the point of either put up or shut up. Either go to trial or resolve the case. People want a heck of a lot more, or they want a heck of a lot less. And then the emotions come in. “They did this.” Maybe not, but it’s not the best legal defense or legal argument to be made. Sometimes when the case gets to the very end, or at the brink where you gotta go to trial or resolve it, you could tell people start getting a little more what I’ll call “T-Rex arms.” They want their money or they wanna keep their money.
Ted: Interesting. I guess money always changes people, right?
Alex: Unfortunately.
Ted: Tell us a little bit about you. What made you get into the legal field?
Alex: It’s a great question. My entire undergrad and everything, I was not steered towards law. I was a baseball student athlete at the University of South Florida. I played ball there and I was a biomed and business double major, and the goal was always to be a doctor. I went to Miami. There’s a bridge program where you get your master’s in public health and eventually bridge over to medical school. Midway through my master’s, I started taking some legal related classes and I thought, crap, I like this. I like it a lot. So I called my mom one night and said, “Hey, I’m gonna take the LSAT. I think I wanna go to law school.”
Alex: And she said, “What is wrong with you?” My mom’s a paralegal and she loves the legal field, but she was like, “You’ve invested so much time.” But I really liked it. And it’s fun because every day I get to wear multiple hats. I’m not saying doctors don’t get to do that, but with our firm and our structure, the fact that we have criminal cases and civil cases, every five minutes I could be wearing a new hat. I could be in a death penalty case, and then next thing you know there’s been a car accident and we gotta work that up. The constant changing of the hats is a lot of fun. Being in court every day is a lot of fun. Unfortunately it’s not like the movies, right? I wish it was so theatrical. But it’s definitely a lot of fun.
Ted: You mentioned that your mom was a paralegal. Do you feel that her being a paralegal made you not want to get into the law field growing up, and that’s why you wanted to be a doctor?
Alex: No, not really. I always just loved the science behind it. I’m a science geek. My great-grandfather on my dad’s side was counsel for the president of Cuba, so we’ve always had law in our background. At the time I always steered a little bit more towards the medical side, and just with exposure to things and life experiences, I thought, man, I really like this whole law thing. I really like the idea of being an attorney, and it’s worked out. It’s been great. I’m fortunate that I have a great partner. I had two great former partners. We miss Kelly dearly. But great staff, great team. We’re blessed here. Every day we get to come in and run a business, run a law firm, work to help people out, and we get to do it with people we care about.
Ted: That’s great to hear. And your law firm, did you mention what year you guys started?
Alex: I should know this better. My partner Brian started the initial firm probably over 15 years ago, and eventually it became Shrader Mendez and O’Connell, and now it’s Shrader Mendez. It’s been fun. We battled through the COVID shutdown and we’ve grown the firm a lot. The firm continues to grow and we’re bringing in great people to help it grow. I’m definitely excited for the future.
Ted: That’s great to hear. I hope it goes amazing for you guys.
Ted: One of the questions I had from one of the experts, it was something they mentioned that made me curious. The expert said that one time an attorney called him and started asking him questions, and it turns out that attorney was just trying to get him conflicted on the case. Because then the actual attorney that wanted to hire the expert called him and found out the expert was now conflicted. What could an expert do when they receive a call from an attorney to know if that attorney really wants to hire them, or if the attorney is trying to do something devious like get them conflicted?
Alex: That’s always a risk. I don’t think there’s any one perfect answer as to how an expert can insulate themselves from that. Especially if it’s an expert that has done work on both sides of the aisle, which for us as lawyers, having an expert that has been on both sides, whether for the state or defense, and plaintiff or defense in civil cases, gives them a lot more credibility. But then it also creates that situation where both sides can reach out, and if the other side reaches out before you do, that can create a conflict.
Alex: I won’t speak as to what tactics other attorneys use or whether I agree with them. For an expert, there’s always an opportunity to try to flush out and get a vibe. Are they just trying to create a conflict? An expert could even say, “Look, I need to do a conflict check before you tell me anything, and then I’ll call you back.” That gives them time to get the vibe and decide if they want to proceed. In the end, the expert has a decision as to who they want to work with. So maybe you do some legwork on the front end to try to flush out that conflict or the idea behind it.
Ted: But I think it’s really tough, especially when there are experts that have done work for both sides of the aisle. They’re gonna get calls from both sides. So it’s tough for them to insulate themselves.
Ted: Just talking to the attorney is not gonna get the expert conflicted. When you said “conflict check,” let’s say I receive a call from an attorney right now. Does just knowing about the case, or if the attorney tells the expert about the case, is that enough to get the expert conflicted? What is involved in that?
Alex: It could be. It depends on what they discuss. If an attorney calls and says, “Hey, have you ever been deemed an expert in forensics?” that’s pretty benign. That’s pretty G-rated. Now if they start going into specifics of the case, the posture of the case, the name of the case, and then another attorney calls and says they want to retain that expert, that expert has already gotten that perspective. I think if it’s very general information and not case-specific, they may be okay. And I say “may” because in law there are no definites. But when you start getting into case-specific information, the client’s information, and how discussions go, that could obviously cause a conflict for an expert if the other side now wants to retain them.
Ted: Let’s say there’s an attorney who really wants to get an expert conflicted. What if the expert just receives an email with all the details of the case? Is that enough to say they’re now conflicted? Or can the expert say, “He sent me all of that information, I never requested it, I haven’t even read the whole thing.”
Alex: It’s tough. I think it would be tough because we don’t know exactly what was said. All the information saying, “Hey, I’m defending a personal injury claim and in our position there’s no liability,” et cetera. We don’t know everything that was said. Maybe more was said that would cause a conflict, maybe less that wouldn’t. That’s the tough part. We don’t know the totality of it to say specifically whether that’s enough to cause a conflict or not.
Ted: So it could really be outside the control of the expert.
Alex: It very well could be. And again, for the expert, professionalism matters. I’d rather do things the right way and cross your T’s and dot your I’s. It’s not worth pushing the limit for any one case because that goes to your credibility. So I think it’s always important that if you do something, you do it the right way. Whether you’re able to take a case or not, you gotta do it the right way.
Ted: I know you mentioned you don’t really want to comment on what other law firms do, but is that something you feel the general attorney population may do, or just some of them?
Alex: It depends. There are experts that we have used who have done work primarily for one side of the aisle, but we know how they work. And sometimes we try to get them before the other side because they are good experts and they’re able to review the matter well. So I think that’s doing it the correct way, doing it professionally. It’s better to be proactive than reactive. If there’s a good expert out there that’s been on both sides of the aisle, you want to get them. Does that mean the other side can’t use them? Probably. But it depends. That’s the frustrating legal answer that a lot of lawyers give.
Ted: Sounds like a really big statement. Just that one factor could change everything.
Alex: One fact could change everything. One fact, one conversation, one email, one message. Any one thing can change whether a conflict was created or not. One thing could change how the case is perceived, how the case is worked up. There are a lot of little factors. We could talk very generally and very hypothetically, but if you get to the nitty-gritty, one thing can change the direction of whether the expert is conflicted or not. There are a lot of moving parts.
Ted: Something else I was curious about. An attorney mentioned that sometimes in court, the retaining attorney may notice the jury react a certain way and then come up with completely new questions that were not gone over with the expert. The expert may either be flexible and answer the question straight, or may get caught off guard, and if that happens the jury notices. So I was wondering if you have any examples of that happening to you mid-trial, where you noticed something and it caused you to change the questioning.
Alex: Sure. You always go into a trial or a hearing with a game plan. But game plans change. We all saw the Super Bowl recently. I’m sure they had a game plan and it had to shift. The same thing goes for a trial or an evidentiary hearing. You go in with an idea of what you’re gonna do and the arguments you’re gonna make, but you also have to be flexible to pivot. You may be going down a path thinking it’s good, and then you catch the jury and they’re like, “Man, this guy’s a total jerk.” Then you gotta soften it.
Alex: Sometimes there’ll be an objection and the judge will rule against you, and now you gotta figure out how to get in what you wanted without getting the judge frustrated or having another objection raised. That’s very normal and very common. I’ve got trials on Thursday and we have a plan, but it may pivot. They may answer a certain way that we weren’t expecting and then you gotta pivot. So when you have experts, it’s important to try to think about as many “what if” scenarios as possible. If this happens, then we’re thinking about this.
Alex: A lot of times when we speak to our experts, we never tell them what to say. They’re the expert in that. But I think about what the other side is trying to elicit from the testimony. I’ll say, “The other side is trying to make this argument, be cognizant of that.” And then when it comes up in depo, we were right. Sometimes we think they may try to go down a certain path and they’re very G-rated and nothing comes of it. But it’s about having that open communication with your experts on the front end to say, “This is the purpose we’re retaining you, this is what we’re looking at, please give us your opinion.” And especially with experts, they’re experts in the field, but you gotta talk to a jury like they’re five-year-old kids. You have to explain it in that way. So it’s very much about having that communication to say, “How can I communicate this in a question-and-answer scenario for the jury to understand?” Because if you talk technical and I talk technical, they’re gonna look at us like we have ten eyes. So we gotta be able to say, “What does this mean? What is the impact?” And spread it out. That open communication on the front end is the biggest thing.
Ted: With this open communication and going to court or depo with a game plan and being flexible, is there such a thing as over-preparing? How do you know you’re preparing enough without going into a thousand different scenarios?
Alex: I don’t think you can ever over-prepare. But it definitely gets to a point where you have to sit back and say, “That is so far out in left field that if that gets asked, we’ve got a lot of bigger issues.” The more you do certain types of cases, the more you know what each side is trying to elicit from the testimony. On the personal injury side, are they trying to show there was proper procedure? Was there causation or not? You have an idea of where things are going.
Alex: There are always those unicorn cases where you really gotta hone in and try to keep everything on track. But generally speaking, I don’t think you can ever over-prepare. Can you overthink it? Absolutely. But that’s where you have to sit back and say, “Is that even reasonable? Is that even a plausible scenario?” If it’s not, you’re probably okay. Keep it in the back of your mind, but the likelihood of it coming up is probably slim to none.
Ted: Something interesting I was watching, there are cases where someone got accused of murder and then 20 years later they find something that could exonerate them. Maybe a phone that shows their location, they were in a different place. Or new technology, like when DNA testing came out. How does the difference in technology work? For example, a case where someone got accused of murder and they find their phone from 20 years ago, but the data from 20 years ago is different than the data now. I’m curious how you navigate that. Do you bring in a new expert? Have you had that happen?
Alex: I have had a murder trial where the cell phone unfortunately was the straw that broke the camel’s back. But I think that’s a great thing about science. It’s always evolving. The mechanisms to evaluate cases are getting better. Are there still mistakes? Absolutely. It’s human error. Unfortunately, sometimes it’s at the detriment of the accused, and people have served very lengthy prison sentences or been on death row and then been exonerated. I’m fortunate that the science has developed to help those people.
Alex: But science is constantly evolving and constantly being improved. There are better mechanisms to preserve things. Is there a possibility that future science or future programs could minimize the risk of being falsely accused? Potentially. But when you get called to a crime scene, you try to preserve the evidence as best as possible. Can something go awry? Sure. That’s where you need to have your proper team, your investigators, and all your proper experts, and sometimes you get it right. Sometimes there are sex crimes and you need forensic experts. There are so many different experts you could use. But to answer your question, yes, it’s a great thing that science is evolving. DNA has exonerated a lot of people. There have been new tools. Bite mark evidence has been disproved and some people were exonerated because of that. As science and technology continue to evolve, we’ll probably see more of it because there are a lot of things we can’t test for today that in ten years we may be able to. That changes everything. New experts come in because there’s new science. It’s a constant revolving door.
Ted: Hopefully that saves some other people who may have been wrongly convicted.
Alex: That’s the goal.
Ted: I was going to ask about the term “red herring,” where it seems like they try to misdirect focus from the real issue. For example, let’s say I’m at the dog park and a dog bites me and I sue this person. They say it wasn’t the dog’s fault, it was the pants’ fault because they shouldn’t have ripped. That’s what caused the skin to pierce. Or that I shouldn’t have been standing there. Is that commonly seen in cases, where they shift blame just to extend time, extend costs, things like that?
Alex: It could be. You get a lot of “but-for” arguments. But for this, that wouldn’t have happened. Is it a common tactic to try to change the perspective of a jury? Sure. One side may say it’s one route, the other side says it’s another. And there are different burdens on criminal versus civil cases. It’s not always a red herring type of scenario. It’s more about creating a narrative that fits what’s available. On a murder case, if you don’t have the gun, if you don’t have witnesses putting the person there, it could have been somebody else. Could you consider that a red herring? Sure, because you’re pointing at some random person. But in reality, that’s just the truth. It’s not for the defense to disprove or prove. It’s for the state to prove it beyond a reasonable doubt. Sometimes what appears to be a red herring is simply stating, “Hey, there are other plausible and reasonable things that could have happened,” versus saying it’s unequivocally this.
Ted: Would it be a red herring if we were talking about a completely unrealistic scenario? If I’m standing on the sidewalk and someone runs me over and they try to blame me for standing there, would that be considered a red herring?
Alex: I don’t think that’s necessarily a red herring. I think that’s just a position they’re taking. “You said you were on the sidewalk, but your foot was off the sidewalk.” I think a red herring is something so far out in left field that it’s like, what are you even talking about? It’s something where you throw your hands up and say, “What are you even talking about? This makes no sense.” Arguments could be made about what was said here or there, and you call something into doubt. But the red herring is more something that has no real basis, where people throw their hands up and say, “What are you even talking about?”
Ted: Yeah, it’s absurd. I had a more specific question. Sometimes experts wonder whether they should have more of a corporate company name, like “Forensic Engineering Consultants,” or if they should portray themselves as a solo expert, like “SmithForensicEngineering.com.” If you’re looking for an expert for a case and the content on both looks good, does it matter which way they portray themselves?
Alex: I know what I don’t know, and I don’t know enough about SEO to give you a definitive answer. I can tell you that when we’re searching for experts, I like to talk to other experts and say, “Hey, do you have anybody you recommend?” If you go to a cardiologist but you’ve got an issue with the electrical circuits of your heart, you want a cardio electrophysiologist, a very specific doctor. I want to know who the doctors recommend. Same with experts. If we go to a forensic expert and it’s a very niche problem, I want to talk to that expert and have them tell me, “Go talk to John Doe, that’s your person.” They know that inside and out. So for me, the name as to how it’s presented wouldn’t impact me. The SEO and backend stuff is for a marketing expert, that’s definitely not me. As much as we try to learn it, it sometimes feels like witch science. But the recommendations of other experts is what’s important.
Alex: I’ll give an example. When it comes to competency, sometimes you want to get multiple opinions to verify a competency issue in a criminal case. A lot of times we’ll have a doctor we trust, and when we go get additional opinions we’ll say, “Hey, who do you recommend?” And they’ll say, “I recommend these three people.” Or, “Hey, I need a bilingual expert.” And they’ll say, “I recommend this person.” Getting that validation from other experts who do the work is really important.
Ted: Word of mouth, right?
Alex: Yep.
Ted: Is there any parting advice you would give to experts?
Alex: Be honest. Don’t let an attorney dictate what you say or force you into saying what they want to hear. It’s important that you’re very neutral. Obviously you’re being retained to give an expert opinion, but don’t just say what attorneys want you to say, because when you go to testify it’s going to impact your credibility, and without your credibility you have nothing.
Alex: So being available, being reasonable, being understanding, being willing to listen. I think those are all key. We should do that in the world in general. Being open to have discussions with the attorneys is important. “Hey, this is what I’m seeing. I know you’re the expert, but this is what I think could be a route. What do you think?” Being able to have that dialogue puts the attorney at ease knowing they’ve been heard and understood, while also giving the expert the ability to do their job. So definitely having open communication.
Alex: And for me personally, I love seeing experts that do work on both sides of the aisle. I know there are a lot of experts who are defense-driven and a lot who are plaintiff-driven. When you do both sides, I think a jury sees you more credibly and you’re more marketable. Either side can’t say, “You do 97% of your work for the defense,” or “You do 98% of your work for the plaintiff, so obviously your opinion is going to favor that side.” If you have work on both sides of the aisle, that gives you a lot more credibility.
Ted: Thank you, Alex. Thank you so much for that insight and for your time here. I’m sure a lot of experts and attorneys are going to enjoy watching this.
Alex: Of course. Yeah.
Ted: So Alex, again, thank you so much for being here. It takes me about six weeks to get an episode live. At the beginning I asked more questions about you so I can create some reels, just about you, your company, what you do. So you’ll have some content to share as well in those six weeks. But other than that, again, thank you so much.
Alex: Of course. Appreciate it.
Ted: All right, I’ll let you go. Bye, sir.