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The Pool Envy® Podcast goes beyond surface-level swimming pool advice to examine the standards, systems, evidence, and professional judgment behind pool construction, safety, operation, and failure.
Hosted by Jason Davies, a licensed swimming pool contractor and independent consultant, the show explores pool code compliance, construction defects, inspections, workmanship, water chemistry, equipment, litigation consulting, and expert-witness issues through real-world observations and practical explanations.
Created for pool professionals, homeowners, property owners, attorneys, and anyone who wants to understand not only what happens in a swimming pool—but why—each episode helps listeners ask better questions, recognize meaningful evidence, and distinguish confidence from informed judgment.
Pool Envy® — Standards, not suggestions.
From the job site to the code book, this is a Pool Envy Podcast where licensed pool professionals speak up. Code, compliance, craftsmanship, hosted by Jason Davies. Licensed across Wisconsin, Florida, and Texas. Your deep end starts now.
Jason:Welcome to The Pool Envy Podcast. Today, I wanna talk about expert witnesses and subject matter experts and what makes that relationship productive. This isn't an episode about how to win a case. It isn't about how to cross examine an opposing expert. And it isn't about litigation strategy.
Jason:Having expertise, serving as an expert witness, and being a productive part of a litigation team are related, but they aren't necessarily the same thing. Instead, I want to start with a much simpler question: What do you need an opinion on? That may sound straightforward enough you have a swimming pool case and you need a swimming pool expert. Do you? A swimming pool is a multi faceted system, not a bathtub in a backyard.
Jason:It can involve electrical systems, hydraulics, structural components, gas fired equipment, combustion and ventilation, tile assemblies, waterproofing, finishes, chemistry, accessibility, construction sequencing, permitting, manufacturer requirements, and multiple codes and standards. Instead of jumping to Who is the expert? Narrow the question to What do you need an opinion on? What is the technical question? The subject of the lawsuit and the subject of the expert opinion may overlap but they aren't necessarily the same thing.
Jason:And getting that distinction right can be the beginning of a productive relationship between counsel and a technical subject matter expert. When an attorney contacts an expert, there's an evaluation occurring in real time. Does the proposed expert have the appropriate experience? Are their qualifications germane to the issue? Do they communicate effectively?
Jason:Does their schedule permit the engagement? Do conflicts preclude the engagement? The evaluation should be mutual. The subject matter expert must also evaluate the assignment. Does the subject of the engagement align with my experience?
Jason:Do I understand what counsel is asking me to evaluate? Do I have enough information to do that responsibly? Are there portions of the matter that belong to another discipline? Are there conflicts that prevent me from accepting the engagement? In certain circumstances, the appropriate answer is I am not the person you need for this issue.
Jason:Rejection of the engagement does not, in itself, constitute failure. It may demonstrate the viability of the process. A productive expert relationship thrives on clearly defined boundaries. An expert who understands and respects the limits of their expertise can be considerably more useful than someone willing to offer an opinion on every technical issue that may arise in a swimming pool matter. That leads to another question: Does the case actually require only a single expert?
Jason:In certain circumstances, it does. Occasionally, one subject matter expert has the requisite background to address the technical questions presented. Conversely, what appears to be one swimming pool problem may encompass several distinct technical questions. Consider something as ordinary as a gas fired pool heater. There may be questions about the pool equipment itself.
Jason:Additional questions may involve fuel gas, combustion, ventilation, electrical installation, manufacturer requirements, or mechanical codes. The presence of a swimming pool does not automatically make every question a swimming pool question. The same is true elsewhere. A tile failure may involve much more than whether the tile fell off. An electrical issue may require analysis grounded in electrical principles.
Jason:A structural concern may require engineering analysis. The productive expert isn't diminished by recognizing those distinctions quite the opposite. One of the most useful things a subject matter expert can tell counsel is, That portion is outside my area of expertise. The objective shouldn't be to stretch one person's qualifications until they cover the entire dispute. The objective should be to identify the appropriate expertise for the questions that actually need to be answered.
Jason:A separate distinction exists between legal strategy and technical responsibility. Counsel determines legal strategy. The technical expert has a different responsibility. In concept, the distinction appears simple: Properly maintaining that separation holds increasing value as the matter develops. Litigation naturally has positions.
Jason:There are allegations and defenses. There are pleadings, motions, depositions, and strategic decisions. The technical evidence, however, does not necessarily arrive in that same order. New documents appear, additional photos become available, depositions may provide information not previously known or disclosed, manufacturer documentation may provide additional clarification, an inspection may reveal a condition that was not apparent from the original records. A productive expert relationship requires sufficient independence to accommodate these developments.
Jason:The expert must remain capable of saying, Based upon the information previously available, that was my assessment at that time. The addition of new information changes part of that assessment. That does not inherently demonstrate weakness. It may be precisely what careful technical analysis requires. The alternative outcome is more concerning, reaching an early conclusion and then requiring every subsequent fact to fit it.
Jason:The facts should inform the technical conclusion. The technical conclusion should not determine which facts are allowed to matter. That leads to one of the more consequential questions in this discussion: Can the relationship tolerate an answer that counsel or the client did not want to hear? The technical answer may be favorable. It may be mixed.
Jason:The available evidence may support a conclusion less strongly than initially anticipated. Additional information may be required. In some instances, the technical analysis may not support the original theory at all. A productive relationship must accommodate each of those possibilities. That does not prevent counsel and the expert from challenging each other's reasoning.
Jason:They should. Counsel may ask, I don't understand how you reached that conclusion. How does that fact affect your analysis? What about this alternative explanation? Can you explain that without the technical terminology?
Jason:Those questions can improve clarity. A material distinction exists, however, between challenging an expert's reasoning and requiring that reasoning to arrive at a pre determined conclusion. Counsel advocates. The expert evaluates. Those roles can function effectively together precisely because they remain distinct.
Jason:Expert selection can easily become focused on the individual. Who has the longest resume? Who presents with the greatest confidence? Who has testified most frequently? Who makes the strongest initial impression?
Jason:Those considerations may have relevance. The process warrants equal scrutiny. Look at the process, not merely the person. Does the process clearly define the technical question? Does it provide the information necessary to evaluate that question?
Jason:Does it permit the expert to identify missing information? Does it allow the expert to recognize and respect the limits of their expertise? Can additional evidence appropriately refine the analysis? Most importantly, does the process continue to function when counsel and the expert disagree? That is a materially different measure of an expert relationship than whether everyone agrees.
Jason:A productive relationship does not require counsel and the expert to reach the same view at every stage. It requires a process in which disagreement can improve the clarity of the analysis without compromising the independence of the person performing it. Technical knowledge is fundamental. Expert work, however, requires more than possession of information. The subject matter expert may need to listen carefully, understand an evolving record, communicate technical concepts outside the discipline, recognize uncertainty, distinguish material facts from merely interesting facts, and explain both a conclusion and its limitations.
Jason:That requires more than confidence. It requires professional judgment. A highly knowledgeable person who cannot explain why something matters may be difficult to use effectively. Likewise, an expert who cannot acknowledge uncertainty may create difficulties unrelated to the underlying technical issue. There is nothing inherently deficient about saying I don't know or I need additional information before I can answer that, or, That question belongs to another discipline.
Jason:Those statements do not necessarily diminish credibility. When appropriate, they may help define it. Expert engagements may begin under significant time pressure. A deadline approaches, discovery advances, an inspection must occur, a report is due, an answer is needed. Those circumstances are real.
Jason:Urgency, however, presents an important question. What, if anything, are we asking urgency to compromise? Availability matters. Availability with qualifications are not synonymous. The first person to respond is not necessarily the person whose expertise best aligns with the technical question.
Jason:Likewise, a deadline does not alter the information reasonably necessary to reach a supportable technical conclusion. In certain circumstances, an expert can work quickly. The scope may appropriately be narrowed. A preliminary assessment may be precisely what counsel requires. Those should remain conscious decisions rather than consequences of urgency.
Jason:The underlying question remains, What do you need an opinion on? Once that question is clearly defined, expertise, scope, timing, and information become considerably easier to evaluate. Independence does not require the expert to work in isolation. A productive relationship may involve substantial communication between counsel and the subject matter expert. Questions have value.
Jason:Clarification has value. Discussion has value. Professional disagreement can have value. The important distinction is that counsel and the expert can collaborate extensively on the quality of the analysis without collaborating on what the answer should be. That distinction preserves both roles.
Jason:Counsel determines what the technical findings mean for litigation strategy. The expert remains responsible for technical conclusions they are prepared to support. Perhaps the most useful inquiry is not whether counsel has found a good expert. The better question may be whether the engagement supports a productive process. Is the technical question clearly defined?
Jason:Does the expert's actual experience align with that question? Can the expert identify and respect the boundaries of that expertise? Is relevant information being provided? Can additional evidence refine or change the analysis when appropriate? Can counsel challenge the reasoning?
Jason:Can the expert disagree with counsel? Can the expert say, I don't know? Can the expert say, I need more information? Can the expert say, You need someone else for that question? Ultimately, can this relationship tolerate an answer that nobody expected?
Jason:If it can, the foundation may exist for something considerably more valuable than an expert who merely agrees with the retaining party. It may provide counsel with an independent technical professional capable of explaining what the evidence actually supports. Counsel and that expert carry different responsibilities within the same matter. Counsel determines strategy. The expert develops and communicates technical opinions within the appropriate scope.
Jason:A productive expert relationship respects both. That may be the distinction worth remembering. The quality of an expert relationship is not measured by how often the expert agrees with counsel. It is measured by whether the process allows technical conclusions to develop independently, clearly, and within the appropriate scope, so counsel can make informed, strategic decisions. This is not advocacy.
Jason:This is the value of expertise. Before searching for the next swimming pool expert witness, perhaps the first question should not be, Who should I hire? It should be, what do I actually need an opinion on? I'm Jason Davies with Pool Envy. Standards, not suggestions.
Jason:Thanks for listening.
Spyder:This podcast is for educational informational purposes only. It is not legal advice, and it is not site specific engineering, code, or safety determination. All field conditions should be evaluated in context. Thanks for listening to the Pool Envy Podcast where licensed pool professionals speak up. Hosted by Jason Davies, licensed across Wisconsin, Florida, and Texas.
Spyder:For more insights, subscribe and join us next time.