Engaging Experts
After 25 years helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On this podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Engaging Experts
Engaging with Panel Experts, Professor Marom Bikson and George Reis
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In this episode…
Today’s episode is a panel discussion on the Expert-Attorney relationship. Our panelists are Professor Marom Bikson and Mr. George Reis.
Professor Marom Bikson is a professor at the City College of New York, where he is the Co-Director of the Neural Engineering Group. He specializes in the effects of electricity on the human body, and his research has been published in numerous scientific journals. Additionally, Professor Bikson has been awarded multiple patents, and holds a Ph.D. in Biomedical Engineering from Case Western Reserve University.
George Reis, owner of Imaging Forensics, a forensic analysis firm specializing in media including video, digital images, and photographs. He is a sought-after expert that has testified approximately 90 times, including over 50 times in court. Additionally, Mr. Reis is the author of Photoshop for Forensics Experts.
Attorneys assess expert witnesses on several factors before hiring, and experts do the same. A great relationship is the intersection of compatible styles, mutual respect, and open, honest, and frequent communication. Each attorney and every case is different, making patience and flexibility key attributes for a successful engagement.
Check out the full episode for our discussion on spotting red flags, staying proactive during the case, and trial team dynamics.
Introduction to Expert Panelists
Speaker 1This episode is brought to you by Roundtable Group the experts on experts. We've been connecting attorneys with experts for over 25 years. Find out more at roundtablegroupcom.
Speaker 2Welcome to Discussions at the Roundtable. I'm your host, Noah Balmer, and today I'm excited to welcome two distinguished panelists, both former guests to the show, Dr Marome Bixson and George Reese. Now Professor Bixson is a professor at the City College of New York, where he is the co-director of the Neural Engineering Group. He specializes in the effects of electricity on the human body and his research has been published in numerous scientific journals. Additionally, Professor Bixson has been awarded multiple patents and holds a PhD in biomedical engineering from Case Western Reserve University, my own alma mater. Professor Bixson, welcome back, Thanks for having me back. And Mr Reese is the owner of Imaging Forensics, which provides forensic analysis for a wide range of media, including video, digital images, photographs. He's a sought-after expert witness in the US and abroad and is a published author. Mr Rees, welcome back, Thanks.
Speaker 3Noah, it's great to be here.
Starting the Attorney-Expert Relationship
Speaker 2For today's panel, I'd like to focus on the expert-attorney relationship. Let's talk about first getting off on the right foot with the attorney. Mr Reese, how do you get started with a new attorney?
Speaker 3Well, in that initial call I of course have a list of questions that I want to ask the attorney to find out about the case who's involved, if I have any conflicts, what kind of evidence that they have and if I'm a suitable fit for that particular case. But during that conversation, when I'm asking the attorney questions and they're asking me questions, I also like to see if there's a relationship that can be built there, that we seem to have a similar approach to the case, the case, and that he respects or she respects my expertise and I obviously respect their approach to the case and the way that they are presenting themselves.
Speaker 2Professor Bixson, same question.
Speaker 4I really liked the way George framed it as sort of a relationship. I think that every individual you're interacting with professionally, every lawyer may have a different approach, a different attitude, and so I think, as part of those initial interactions, they're gauging. They're gauging you know how they work with you and I try to be very sensitive to the fact that you know different lawyers can come in with very different styles, with very different styles, and I try to be amenable to that, while also making it clear that you know this is, this is what they're getting as far as interactions with me.
Speaker 2When you say different styles, can you go through a couple possible different styles that you've run into in your expert witnessing experience?
Speaker 4Sure, I mean, I think, especially initially, I think the lawyers are very sensitive to assessing how well you might, you might uh serve, you know, under, let's say, deposition or uh facing a, um, you know, an antagonistic opposing counsel. Uh, so you do find in some cases they they might push you a little bit initially, right, they might challenge you on certain points. Right, they might challenge you on certain points. But I also realize they're doing that in sort of like a friendly fire kind of way. Right, they're not testing you here. They're trying to identify things like okay, well, you know, you have a lot of expertise in domain A, you know, but this is an A1. So how would you respond to the fact that you may have a deficiency in A1? And I think they're listening as much to what you say as how you are able to sort of calmly respond and address what might sound like a challenge.
Speaker 2Does that square with your experience, Mr Reese?
Speaker 3Yes, I think so, and it's interesting though when they do ask those questions in somewhat of a maybe aggressive manner or assertive manner. It could be easy to take that wrong and I think we need to remember we're developing a relationship in there. I would say they're testing us in a way. They're wanting to see how we respond and that's important for them to understand. So we need to realize during that conversation that it could be easy to misinterpret something and we want to avoid doing that.
Speaker 2Having said that, are there actual red flags that you look for at the beginning of a relationship, things that you look out for that make you realize, hmm, maybe this engagement isn't for me?
Identifying Red Flags with Attorneys
Speaker 3There are for me. So some attorneys want a specific opinion. Maybe it's important to their case and they need that opinion. In my work in analyzing photographs and video, I don't know what my opinion is going to be when I initially look at the case. I don't know what the evidence is going to show and if they have a definite outcome that they want from me, that's a little bit of a red flag. If they're overly aggressive, that's a bit of a red flag as well. If I feel like there is not an equal relationship, if they're overly demanding, overly pushy, then I feel like I'm going to regret taking an assignment from them later. So that would be another.
Speaker 2Professor Bixson, same question Are there red flags that you look out for?
Speaker 4Again, those are always excellent points. On the one hand, as an expert witness in that kind of situation, we are hoping, right that to be able to sell our services to them, right, and so we're trying to be as accommodating as possible. But you know, but as just described, I think it's really in our interest to be as honest and as straightforward with them about what we feel comfortable saying and what we don't feel comfortable saying. Usually in those initial interviews it's not. You haven't even had a chance to review the facts yet. You know what I mean.
Speaker 4They might've sent over some material, but it doesn't. It doesn't. It wouldn't make any sense to spend 10 hours reviewing something in anticipation of a 15 minute call about my qualifications. And so obviously, when, when they start talking about these issues, you got to be very careful to say I don't know. Right, you sent me something. I certainly I made a point of looking it over quickly because I wanted to be ready for this call, but I'm in no way ready to give you any sort of technical opinion on it, and I think that's quite appropriate.
Speaker 2Is that an issue that you run into, where you really aren't able to answer questions during that initial interview because you don't have all of the facts? Are there times when you take an engagement only to then receive the full amount of information? Then realize, oh boy, I wish I hadn't taken this after all? I mean a lot of the cases I've worked on.
Speaker 4There's a lot of materials right. It could be hundreds of pages of materials. You might even be looking at a deposition from other experts. It's a lot of material. So you haven't even seen anything in that initial interview and most they might've sent you one document right that you looked over briefly. So I'm not sure how to assess, coming into a matter, whether I'm going to end up in a situation where I wish I hadn't taken it on. I mean, most of these types of matters they do tend to be intellectually stimulating, they do tend to be compelling. There's things on the line, there's stakes on the line that make it exciting to be part of the process.
Speaker 2Mr Reese, have you run into that situation where you've taken on an engagement only to find out that you wish you hadn't, upon reviewing the information from the attorney?
Speaker 3And one example is the attorney that retained me was certain that he knew the reason why the video had some problems and he was certain that it was somebody had manipulated it and edited the video. And through my analysis I discovered that it hadn't. We met at opposing attorney's office in order to review some equipment that recorded the video originally and looked, and I was able to show him there that there wasn't intentional editing and it was very concluding information that we got. And he wouldn't even talk to me on our way back out to our cars because he was determined that it was editing. That was done.
Delivering Unwelcome News to Attorneys
Speaker 3Later on he kind of calmed down a little bit, but I should have seen when he originally called that he had a definite opinion, asked me this is what the case was, this is how this was done, this is this, is this thing that I need to prove, and I've had had other attorneys in the same way. They they have something in mind, they know that's the case. They're incorrect in that knowledge, so they don't actually have that knowledge. And then they push you a little bit to try to come to their predetermined opinions, which is problematic, and if you could avoid those at the beginning, it's best is problematic, and if you could avoid those at the beginning, it's best.
Speaker 2Professor Bixson, have you had a similar experience where an attorney has maybe nudged you a little bit harder than you would?
Speaker 4prefer. I appreciate that concern. I think obviously a lot of attorneys are going to be very careful not to do that One would hope. I think a lot of them recognize that you're going to be the most useful to them if you come at things objectively and you're really able to back up your conclusions right and to go on a limb in a direction you're not very comfortable with or that you can't support may ultimately make you not a very good witness, right, and so I. I appreciate you know everything George was saying, but also I think he you know, he recognizes, I recognize I think many lawyers recognize that the best witness is someone who who believes very strongly and and has confidence in what they're talking about has not been pushed into a corner that ultimately they can't defend.
Speaker 2That's a good segue into bad news. How do you deliver bad news to the attorney? You come across something and you realize, wow, this is not going to go the way that they want. Now, obviously, expert witness's duty is to the neutral truth the unabridged neutral truth not to the end client. However, the attorney ostensibly is bringing on an expert witness because they believe that the expert witness's opinion is going to aid the end client. So when those two things butt heads or are at loggerheads, what is the best way to deliver that bad news to the attorney?
Speaker 3So I'm going to start by saying I'm not sure that I would call providing the truth about the analysis as being bad news, and one of the things that I consider a role of the expert to be is kind of like in the movies not the hero of the movie, but the guide. So Yoda to Luke Skywalker the attorney can be Luke Skywalker. I want to provide the attorney with the information that I have in my field in order to help them understand it, so they know how it's going to work in their case. So if I find that the person in this video that's being accused of bank robbery is indeed their client, it's good for them to know that as soon as possible. So it may not be news that they want to hear, but it's news that's valuable to them just the same.
Speaker 2Professor Vixen same question.
Speaker 4Yeah, and I think often it's not a simple yes or no as far as the answers that they wanted to hear. You're trying to unpack the facts, you're trying to help them understand the evidence at play, and part of what the lawyers are doing is they're developing their own strategy. They're trying to figure out what arguments they can make and what arguments they should not make, and so, yeah, it's not necessarily good or bad news. You're trying to help them understand the facts and where those facts may lead and that will help them right, inform them what kind of strategies they should take.
Speaker 4Okay, this is a direction we should go on. This is a winning argument. This particular argument is going to be very hard to support and a lot of the situations that I've had a know had a chance to work on. There are many decision points right where you know the lawyers can. You know they choose the hill that they want to die on, and so you know exactly to George's point, you're giving them the best possible information so they come into it, you know, equipped to pick their battles.
Speaker 2Let's talk about wrapping up an engagement. One of the things that I've had a lot of differing opinions on from different expert witnesses is how involved they remain after their portion of the action is done. In other words, you've given your deposition, perhaps your testimony if it's been a jury trial, and then you might be finished, even though the case may proceed. It may proceed to settlement. It may proceed to go all the way through to a verdict. Do you uh contact the attorney afterwards to find out how it went? Um, do you maintain a relationship for networking purposes and do you do things like jury polls or anything like that to see how you did to get advice? Just vis-a-vis your own performance All?
Speaker 4right, George, you went first. I'll go first this time.
Speaker 3It's always harder to go first.
Speaker 4I was hoping you were going to go first, yeah, yeah, it's nice to hear the other opinion and be able to build up on it. I never even heard of this, the option of like somehow going and polling people independently. It has been my experience that once your contribution is done, the level of communication you get drops, maybe to zero, which can be a big contrast. So up to that point, maybe you're speaking for hours on a daily basis leading up to this particular moment and then, once your contribution is done, I think it's natural that the lawyers, who have a lot on their plate, are transitioning their focus to things that they need to be, you know, things in the case, or maybe just getting back to their family.
Speaker 4So I have not found in my experience that I get reports afterward about what necessarily the results will be, but I have found out that when I've emailed and I've asked I'm curious after this whole process what the resolution was they tend to be rather happy to sort of you know, share what information they can, and often that's interesting me to find out. Right, it's educational for me to find out what was the final decision and what was the rationale for it. Of course, there are other situations where the matter is settled. So you spent a long time developing whatever particular arguments you did and you provided your technical support, but the issue gets settled and at that point you know you get it's hard to know specifically what role you played. You hope, hopefully, you played a positive role right in your side, getting the best resolution they can.
Speaker 3Yeah, so we're actually in more agreement on this. This is an area I thought we might've had a little bit of disagreement or different views on. So I generally don't ask the attorneys what the resolution of the case was, unless I have a reason to want to do that. So maybe my role in it was more complex than usual, so I'm curious about it, or maybe it's a brand new client and I want to develop a long term relationship with that client.
Speaker 3So following up is nice, especially, to add and, as Marome said, the issue of when things are settled prior to going to court. One of the things that that is good to know is in a follow-up email or a call and say I hope that the information that I provided was valuable to the settlement of the case and that just helps, I think, establish that long-term relationship. For jury polls I've had a few cases in which attorneys have done jury polling and in those cases I haven't asked, they've just provided me information and it's usually good to hear when there's opposing experts and to hear how jurors viewed each expert. And you know, especially if you're against somebody that you had concerns about in the first place for various reasons, and this can either confirm it or you can say oh, I perceived that differently than what a juror would, so those have been very nice to get in the few times in which attorneys provided me with that juror feedback in the few times in which attorneys provided me with that juror feedback.
Speaker 2Mr Reese, do you believe that this is something that attorneys should be doing routinely giving their experts not just jury polls but feedback in general, because in my view it seems that ultimately it would help them as well, because the better you are at your job, ultimately the better you can at your job, ultimately the better you can do for their end client?
Declining Problematic Attorney Engagements
Speaker 3That's an interesting question. So for a new expert, absolutely and I think every attorney knows when they're hiring someone that's a new expert and giving them feedback it's essential to help them grow and get better. With a seasoned expert it's a mixed bag. Some seasoned experts obviously are good at their work. They hopefully know that they're good at their work and maybe don't really need that feedback. On the other hand, maybe we have bad self-perception. We think we're good and we have some areas we need to improve upon and that would be valuable as well. So I'd say it's up to the attorney, but if the attorney thinks that feedback would be helpful to the expert, I'd always love to get it.
Speaker 2Professor Bixson, do you typically know the attorney when you get an engagement? In other words, are you being called by paralegals or other representatives, or do you typically speak one-on-one with the attorney during an engagement? In other words, are you being called by paralegals or other representatives, or do you typically speak one-on-one with the attorney during an engagement?
Speaker 4In my experience almost always with the attorney and it's often ends up being the attorney that I end up working with A lot of the stuff I do is sort of an intellectual property, so these would be specialized lawyers and maybe because they're very invested in their experts, so they're talking to me from the get-go.
Speaker 2Sure, Mr Reese. Same question Do you typically speak first with the actual attorney for the case or do you get a representative?
Speaker 3In at least 80% of the time I talk directly to the attorney that's involved. Sometimes it's to an associate attorney who's working with a partner on the case, and that's fine. Once in a while it is a legal secretary or a paralegal. In those particular cases I haven't asked who is the attorney because I think at that particular point my initial conversation with this paralegal let's just assume it's a paralegal is going to be where I'm going to build that relationship. So I want to know how that's going to work, and there might've been one or two times I regretted not finding out a little information about the attorney in those cases.
Speaker 2That actually brings me to my next question. Without naming names, are there attorneys that you wouldn't work with again? And a follow-up to that is if they call you or a representative calls you, how do you handle declining those engagements?
Speaker 4One of the obviously very disappointing or discouraging aspects of perhaps being an expert is, if the client is somehow hesitant or not compliant with um, compensating you for your time based on the agreed terms, um, and I don't know, there's different reasons why they might be doing that Right, um, and so I think that is an important relationship.
Speaker 4I think we're often asked to be extremely responsive.
Speaker 4We need to do something over the weekend, we need to be available, and I think we, you know, as expert witnesses, we try to be good team members and we do that um and um in a similar way.
Speaker 4You know, um, you don't want to be in a relationship where it you know it takes months of follow-up to to have an invoice paid or you know where you, where you, where you feel that that's not being followed up on.
Speaker 4So I think I haven't had many of those situations, but in situations where that does happen, that certainly becomes usually the lawyers will suggest that it's the client rather than them, but in any case, that's a situation where there's a lot of frustration and where, if you were to go back into a relationship with that client or with those lawyers, you may ask for a retainer and you may do other things in order to make sure that you're not backed up into that situation. Obviously, as long as the case is ongoing, you have a little bit of leverage because they need you to keep supporting them, but once the case is over, you're it's, you're expecting them just to ask response, you know responsibly, uh, and to clear out any remaining invoices and expenses mr reese, attorneys that you would know that you would never work with again, with again, without naming names.
Speaker 2Is this something that's happened?
Speaker 3I have a list. Let me let me actually read those names. All right, yeah, there are definitely a handful of attorneys who I would not work for again, and in a couple of cases they have called and I just refer them to someone else. If it's to somebody who and when I refer them to someone else, I like to let that other person know. When I worked on a case with this attorney in the past, I had this particular issue. I want to make sure you're aware of that going in, and then they can deal with it how they wish.
Speaker 2Beyond billing problems, have there been other categories of issues that you've come against that would prevent you from wanting to work with a specific attorney again?
Speaker 3Well, and those would be the cases for me. I generally don't have billing issues, and of course. So I'll just give one example. I had an attorney who wanted me to give a certain opinion, did not indicate that in the initial call. I had a call with him letting him know verbally what my results were. He said yes, I need a report on that. I said, great, I wrote a report. He called me and said I can't use this report because you didn't say X. And I said well, we had a phone call and I explained to you what my findings were. You had no issue with it on the call. Now you're saying something else. He said well, let me send you a deposition that you can read, and then I'm sure that will change your opinion.
Speaker 3And it was a traffic accident and the person didn't recall being in the accident or pressing on the brakes. And the issue was in the video Did the brakes show or not? And so I called back the attorney. I said you know, you're right, I'm going to completely change my report. I'm going to write that there was no accident because the person didn't remember being in one. So he wasn't happy with me. I wasn't happy with me, I wasn't happy with him End of relationship. Except two weeks later he sent me a LinkedIn request to connect on LinkedIn, which I just didn't ignore and if he were to call, obviously I would refer him to somebody else.
Building Successful Expert-Attorney Relationships
Speaker 2Yeah, it's interesting. I try and usually keep the show fairly positive, but it is the. Those negative experiences can sometimes be the learning experiences. Those are the things that newer expert witnesses need to hear so they know what to do when they find themselves in those sorts of situations. That said, I'd like to shift gears a little bit and talk a little bit more generally about the attorney-expert relationship. What, in general, mr Reese, makes for a good expert-attorney relationship? What are the main factors that you look for and that the attorney should be looking for in making a positive engagement?
Speaker 3I think there's two things at least two that come to mind One that's great in any relationship and that's good communication, and I think so many things can be resolved if communication is good. And then the second thing is being competent at your work, delivering more than you promise to deliver and never exceeding beyond your area of expertise so knowing where your limits are as well as being competent.
Speaker 2Staying in your proverbial lane.
Speaker 4Those were, I think, the excellent points. I guess I would add that sometimes you may be working in a case and it's rather complicated. Right Again, you're dealing with hundreds of documents, many potential arguments and so on, and the lawyers may be asking you to answer a very specific question, but there's a thousand directions you can go with it, and so sometimes a good relationship is where you start working on these problems and you're having discussions with the lawyers and they identify areas that they think are a bit of dead ends. They identify areas that they are excited about because these things are legally actionable and therefore you as an expert witness can sort of continue to focus in those directions. I think I've learned that those kind of iterative discussions are useful. They're not changing how you look at the facts. They're not going to change the conclusions you reach. But when there's so many documents at play and so many kind of ways you could approach the problem right. Like, let's say, there's a IP case and there's 10 patents and each patent has 10 claims, you have a hundred claims you could be looking at, depending depending on you know what the goals are. Where you place your attention is something that I think you can learn.
Speaker 4The other thing is, you know, as far as questions we asked the lawyer, you know you asked before about when the matter is done, but I do find that sometimes, when the matter is ongoing, I do want them to explain to me the legal process a little bit, the kind of motions that they're going through, and again, it doesn't necessarily directly affect how you're going to look at the facts, but it gives you a little bit of perspective you know what I mean of what kind of arguments are being made and what is the type of product that they're looking for you to deliver at each stage.
Speaker 4Right, they'll tell you. You know, obviously usually they'll say this is the question we want you to answer. But I found that process has been educational to me. It's useful both just on that case but also in future cases when you're working on similar matters and you understand now okay, now this is this motion and this is the question that I need to answer at this part in the case. Later on I'm going to have to answer that question in a slightly different way, and so that, I think, is an educational process that carries through even to new cases.
Speaker 2That's an interesting point regarding strategy. How proactive should expert witnesses be in assisting their attorneys with strategy If they think that it might be best to say X during the deposition but say Y during the trial, for instance, or if there's a better way to communicate something? Should the experts be proactive with their attorneys, or should they basically stand back and let the attorney steer the?
Speaker 3ship. That's actually a great question and complex, because there's a lot of ways to look at this and one of the things I would just say in a difference between the type of work Barone does and the type of work I do, he works complex patent cases. I work cases in which I'm clarifying video or determining whether or not a video or photographs have been altered, and so my cases are much, much simpler. But, at the same time, strategy is essential in my cases that are less complex as well. One of the things that Marom is working with is our attorneys that know his field well. Also, in my case, I deal with attorneys who don't know my field well, knowing about video or knowing about authenticating photographs something they might have in a handful of cases, so they're not going to be well-versed in it.
Speaker 3So knowing the strategy they want me to take in that position is always valuable. Do you prefer me to answer yes or no, or do you want me to take in? That position is always valuable. Do you prefer me to answer yes or no, or do you want me to go ahead and provide narratives, for example? So that's essential. Educating the attorneys in my case is valuable, because they generally call and say I don't know anything about this, and then so, therefore, they're looking for me to provide them with the information, with an understanding of the technology that's that's behind the evidence that we're looking at, and with an understanding of what questions they should ask in depositions and in trial. So, from the standpoint of providing them with the information it's essential and understanding the strategies they want me to take during deposition and trial, that's an excellent point, professor Bixson.
Speaker 2When you are working with attorneys who, as Mr Reese said, ostensibly understand their field, are in the same field as you aren't laypersons vis-a-vis the subject matter, do you find it makes them more or less receptive to your strategic suggestions during the case?
Speaker 4That's interesting. I like answering after George because I dream of what he said and then it lets me I can build on from there. You know, on IP matters, on technical matters, it is often the case that you're working with lawyers who have some domain technical expertise, like maybe they had an undergraduate degree in engineering, or maybe they have previously worked on similar matters, or one of the lawyers on the team is brought in to have that level of it, and so that is one aspect of it. But, by its very nature, obviously you're going to have a level of depth of expertise that they don't, which you would hope so, even when they come in and they have some technical background, there is a space with which they may not have the same kind of clarity that you do.
Speaker 4I think it's very useful to sometimes say, okay, let's, rather than just focus on exactly the facts of this case, right, the particular image or whatever claim that we're looking at.
Speaker 4I want to take a little bit of time and I want to explain to you how this particular technical field works in very simplistic terms, in terms that might even translate to the way you would speak to a judge, right?
Expert Demeanor and Trial Preparation
Speaker 4Or to a jury, and I want to walk you through that and so that I can and I think that they appreciate that, I think that empowers them to then understand how you're reaching your conclusions. So I did really like that point and I also liked the point that was raised around strategy the way George broke it down that there is. There's an aspect of it of how they will advise you to present yourself right, just like qualitatively, whether you should be giving long answers or short answers in this particular situation, or what the expectations are of you, and so that's one level of strategy where they're kind of telling you what to do. The other level of strategy where sort of you're telling them how to approach things at a high level I find that that rarely happens in that sense, right when that's supposedly their job right, and so they're deciding on what arguments to make and what motions to, and you're doing everything you can to provide them with facts and analysis to help them make that decision.
Speaker 4As we're trained to say right on the expert witness stand, I'm not a lawyer, right, Sure?
Speaker 2Absolutely. The way that you answer questions, as you stated, matters a lot, not just the content. Let's talk about demeanor a little bit in depositions in the courtroom and the preparation for Demeter that your attorneys give you. Professor Bixson, do you typically, does your attorney typically give you advice on how to present yourself, how to answer questions, both not just the content but kind of your mannerisms, even down to the way that you dress? Is this something that comes up in terms of strategizing with your attorney?
Speaker 4There will certainly be preparation right, and how much preparation will depend on how confident they are in your experience, which is an adjustment they will take and also, obviously, the stakes of the case and where you are in it. So I have been in situations where over very extended periods of time we've sort of gone through sort of a mock back and forth and in that context they'll certainly pause and say, okay, in this case, you know, I would prefer you go in this direction, or I might even say I'm not. You know, let's step outside of this role playing. I want to ask you a question. I don't really understand in this case, what, what would be the expectation from me?
Speaker 4I think those, those, those processes have been, have been very educational, because I think the way you speak, the precision you know that you need to speak with as as an expert witness, is not day-to-day communication. You need to be very careful in your choice of words. You know, as George was saying before, to really stay in your lane and not get into areas that you are either not your domain of expertise or not, things that you were asked to look at and not to go in those directions, and so those are all things that you do get from the lawyers. I mean, I think, generally as far as your demeanor, I think you want to be very even. I don't think anybody wants to see a hysterical expert witness right or to lose your cool, even in situations where you may be very pressed.
Speaker 4I also find it's very useful to kind of find your pace, which may vary from situation to situation, and not change your pace. So if someone is coming at you very quickly, like I had a deposition, where within the first second, just like out of the gate, right, let's go, a very rapid fire question came to me and I just took a breath, you know, and I thought about it and I made sure that I answered it when I was ready. So, making sure that, depending on the situation, you also keep a pace that you're comfortable with and that you're able to think, really think, through each one of your answers to make sure that you you speak in the most accurate way, that's useful.
Speaker 2Mr Reese, do you agree? Have you done mock cross-examinations or mock depositions to kind of prepare for these cases, and do you find the advice of your attorneys vis-a-vis demeanor to be useful?
Speaker 3my turn to say well, I love coming after Moran because he makes great points that I agree with and I can, instead of building upon it, maybe give a couple of examples of when that attorney prep has been very useful. So one example is I was in a federal case and when I met with the attorneys prior to trial they did not talk to me at all about the facts of the case or about my evidence, but instead about opposing counsel. And opposing counsel earlier in the case was actually exhibiting psychological problems and the judge actually in that case recommended that he see a counselor. And so the prep on that case was be aware this attorney might start yelling, they might go way off on completely different topics, and so be aware of that so that you can be ready for it and not react, but instead be ready to answer relevant questions.
Speaker 3Another case was when I was testifying in London on a matter last year. The attorneys that prepped me in that case I was retained by said in arbitrations in the UK we generally have rapid fire questions and that's probably not what you're used to in the US, and so they spent a day and a half with me, asking me rapid fire questions so that I would be ready for that, which was very, very helpful, because it would be a very different aspect. However, in that case it turned out the attorney on opposing side that was questioning me was from Texas and was very laid back and didn't ask the rapid fire questions. But boy, I sure was prepared to be dead.
Speaker 2Professor Bixson, given these preparation methods, do you feel that you typically have ample opportunity to properly prepare for a case before your portion, be it a deposition, trial or what have you?
Speaker 4You certainly hope you have ample time, right. You know what's coming. Usually at that point you have a very good understanding of what the issues in the case are. You have a good understanding of what you're going to be asked about and you have a good understanding of what you're going to be challenged on, right, Because you've sort of identified there's certain, there's some sort of key wedge issues perhaps that are very important to either side to clarify, you know, and and they're going to want to push you on those opinions, you know, on those, on those issues that may be the really the really critical ones. So, hopefully, you know, you are prepared.
Speaker 4It is a very unusual form of interaction, right, and it has this adversarial quantity quality to it, right, and so, at least for me, there's a little bit. Obviously, there's a little bit of anxiety in the sense that you want to do well and you want to be, you want to speak clearly and truthfully to the facts. There could also be a little bit of anxiety that we're not used to being in a situation where we may be being interrogated by someone, um, um, who is trying to discredit you, right? Who? Who's trying to show so, uh, who's trying to show that you're inconsistent, uh, and again, that just requires you know, um, first of all, starting from a position where you're speaking about things that you are confident in and which are true, right and those, and you know, as the saying goes, if you, if you, what's the saying like? If you always tell the truth, you don't have to remember anything, right, Because it's only you know with the lies that you get caught up. So you know you're speaking from a position of confidence where you think the facts are on your side.
Speaker 4And you know, I've been in situations where they will find quotes of things you've said in the past, right, that if they're taken out of context, appear to be the exact opposite of what you're saying now in a different context, right. And so they will challenge you. They'll say, okay, is A true? And you'll say, yes, A is true. And then they'll pull something up from a completely different context and you say, well, is this, did you say A is not true?
Speaker 4From a completely different context, and you say, well, is this, did you say A is not true? And again, in those kinds of situations, you want to respond as clearly as possible to say, yeah, in that context, right, A was not true and in this context A is true. So those are kind of the situations that I think, especially the more experience I've had, the more comfortable I've been. And I think if you're not experienced in that kind of situation you might be caught very off guard, especially if you're sort of come from more sort of technical, nerdy background that's not how you're used to interacting with people and all of a sudden you know here's someone who is coming at you, you know, with this sort of barrage of inquiry that is again intended to almost try to make you seem like trying to discredit you.
Speaker 2Mr Reese, you're a published author. Have you had this happen to you where people will try and either take the things that you've said or written out of context, or try and impeach you on something that you said 40 years ago, or try and impeach you on something?
Speaker 3that you said 40 years ago Surprisingly rarely. So yes, it has happened. I've had quotes from articles I've written. I wrote a book which actually I don't think anybody ever read. Nobody's quoted that. And I actually in court one time got asked about my political views, which I found quite shocking. But I had run for state office once and was asked if I was the same George Reese. And then they started to ask and do you hold the opinion that? And of course, obviously the attorney objected and later on told me it's great that the jurors saw that you take civic responsibility and run for office. But no matter what your view is that they were going to ask you about half. We're not going to like it, but you just don't know sometimes what's going to be asked.
Speaker 2Absolutely. One of the things I'd like to ask, about that I've had a few experts mention, are the utility of visual aids in reports to juries, and when have you have you ever used visual aids as an expert witness and, if so, have you found that it's useful in either explaining something difficult?
Speaker 3Well, that's an easy one for me, so I'll jump in. All of my evidence is visual. I analyze photographs and video, so in every single case my reports are illustrated, and in my testimony I always provide illustrative evidence. There actually was one time in which the judge did not allow me to publish to the jury my visual exhibits, and so in that case I actually had to describe them verbally, which was a little bit awkward, but I think that it ended up working out. But with that one exception, yeah, I always have visual evidence.
Speaker 2Professor Bixson visualates.
Visual Aids and Team Dynamics
Speaker 4I think for me they come up more rarely, but I think, probably for the same reason that George might use it, which is that they're serving an explanatory process, and so you want to explain a concept, and the best way to explain that concept is to create a cartoon or some kind of block diagram that helps them see what you're talking about, though, again, in the situations I've worked in it doesn't come up so often.
Speaker 4I mentioned that example where sometimes I'll come up with a visual tool in order to for the purpose of, in my discussions with the lawyers and in some cases they will, they will really like that and they'll say, okay, we're not going to ask you to bring that into the report, but unless it's specifically asked for, at least in the, in the kind of stuff that I would do, you don't generate sort of new imagery. Sometimes there may be a particular figure which is, you know, it's very important, or is being contested in some way, and you might annotate it, and so in those cases I might add some marking. You know, this arrow right here is what you know I'm referring to, but not more than that typically.
Speaker 2These days a lot of larger trials tend to have teams and sometimes they can be quite large with a number of experts, several attorneys and a host of staff helping with the case. Where does Mr Reese, where does the expert witness fit in overall in a trial team and to what extent do they work with the other members of the trial team? Does one type of expert work with another type of expert or does everything go through funnel through the attorney first?
Speaker 3That's really depending upon the case. So I work many cases in which other experts are going to rely on the evidence that I provide. So they want to know certain things about the video in order to determine what the speed at impact was in an accident and what the damage was and what the injuries could be. So in that case I'm working directly with the other experts in order to provide them with the information they need information they need but in most of my cases I'm working directly with the attorney. Maybe my evidence doesn't affect other experts' work, but at a time I've worked a couple of military cases and in the military cases I've worked.
Speaker 3The JAGs bring in all the entire team for the entire trial where they're actually opening arguments and where they're at sentencing, and those have proven to be, of course, interesting, because watching the other experts in different fields can be valuable Just from getting an idea of your disposition when testifying, the way to phrase things, how they answer questions, disposition when testifying the way to phrase things, how they answer questions. So it's educational from that standpoint. But also, surprisingly, pieces of information can come in and completely unrelated experts testimony that then becomes valuable to something that you were analyzing. So I found that when we can work with teams and interact with each other, there can be an added value to that that could be unexpected.
Speaker 4Yeah, it's an interesting question. One thing I've done more and more on cases I've been working on is that I may bring in other experts to sort of work, let's say, with me or under me, so I would actually maybe be the main expert that this legal team is referring to. But I'm telling them look, there's some dimensions here and you're going to want to bring in other people, and so again, in that case I'm going to be working directly with the lawyers, but hand in hand with these other experts that I may have. I've my experience has been at least, that when there's other experts you know on on the same side, right that that I'm working on, often my interaction is very compartmentalized, I think some sometimes, at least, my experience has been that the lawyers are actually very sensitive to the nature of that communication because it has um, it's not just casual discussion sure that so and so, in that case, that they, they, um, they control that communication.
Speaker 4You know I mean and and and, um, and usually when you have those interactions there's a specific goal in mind. They want to, they want, they want you to exchange information on a particular topic and, and they would like to leave it at that. You, you know what I mean. And so, for example, that expert is writing a report and that report relies on something that I need to opinion on, and so I'm speaking to them to convey that information to them so they can move on ahead. Or there's an engineer who works in a company and they're speaking to me to relay to me very specific information that I need about a particular product that is critical for me to write the report. And again, the discussion is limited to that sense.
Speaker 4Another interesting thing that made me think about when you asked that question is I've had a lot of differences in the size of the number of representatives of the legal team that I'm working with, where I've had cases and in some cases are very large and I will only talk to one lawyer. There won't even be anybody else on the call, but it's very pretty, it's one. I know there's other people around, but the way they could compartmentalize it is that the entire time this went on for months, I only ever spoke to one person, and that's how I was conveying all, and the emails were only. And then there's other situations where there's multiple people involved or where where, depending on the matter, I'm being moved from one person to another, and so it's very interesting to me that different law firms have different cultures about how they approach, um, the way the expert is is is, uh, who the expert is communicating with?
Speaker 2do you have a style, do you have a stylistic preference there?
Speaker 4No, not at all, but it's very different. I would say it's a different thing. You'll have four lawyers on the call with you, five lawyers they're all there versus just one, knowing that that person is then communicating that information to the other ones. I guess it must be a strategic decision of how they want to go about doing things. And so, no, I wouldn't. For me, I don't think it necessarily affects things one way or the other, it's. I mean, I guess you develop a closer relationship when you're just talking to one person and maybe that's part of it, right, that it's always you and that person. It's not you and four others.
Final Advice for New Experts
Speaker 2Before we wrap up, I'd like to ask each of you for any last advice that you have for expert witnesses and, in particular, newer expert witnesses. This time you get to go first, professor Bixson.
Speaker 4I think, especially if you're new, regardless how strong you are technically, you're not going to have the same experience as far as writing reports, as far as depositions, and that is something that they're going to be sensitive to. And so I think we talked about your communication and your demeanor right, that was something that George was emphasizing that that communication aspect of it that's really going to be very important, that you pay very, very close attention to your ability to project and be very clear in your discussions with the lawyers, because they will be assessing that. So that is certainly something I think it always matters. But perhaps that has extra weight when you have less experience to lean on as far as records or, you know again, writing reports or being deposed.
Speaker 2Last advice, Mr Reese.
Speaker 3Two things come to mind.
Speaker 3Last advice, mr Reese. Two things come to mind. One is meet other experts and form relationships so in that way you could get an idea of how they approach report writing, how they approach communications with attorneys, how they testify. And then, secondly, I would say, go to courtrooms and watch experts testify. That's incredibly value. I've done that. Rooms and watch experts testify, that's incredibly value. I've done that. I've come to a local courthouse and just walked in on trials for the purpose of seeing what kind of questions get asked and how the experts respond to those questions.
Speaker 2Sage advice from both of you, Professor Bix and Mr Reese. Thank you so much for joining me for today's panel Pleasure.
Speaker 3Yeah, it was a lot of fun, thanks.
Speaker 2And thank you, as always, to our listeners for joining us for another discussion at the Roundtable Cheers.
Speaker 1Thank you for listening to our podcast discussions at Roundtable. Our show notes are available on our website, roundtablegroupcom. Subscribe today on Apple Podcasts or your favorite listening apps.