In this episode…  

Expertise is not an all-or-nothing proposition. There will be engagements where you have the necessary core of knowledge to form an opinion, but you may not be an expert on every facet of the case specifics. Professor Bikson notes that honest communication with the attorney during the initial call allows for a realistic assessment:  

I think that often, there is a specific matter at hand, [which] may be in your topic area, but you have not had a chance to research the details. [You] must be upfront; you have not begun the research. At that point, they interview you, and they assess whether you are a good fit. That is what you want to communicate to them to let them make that assessment [. . .] I think you want to have a certain core expertise [. . .] it is very important, at least for me, when I am being vetted to be very upfront with people about what my expertise is and what it is not. That is going to come into play, I am going to be represented as an expert and I am going to be challenged hard, potentially by the opposition on my expertise. I found it very useful to be upfront to let [the engaging attorney] know what I have done and what I have not done because that is going to become a factor if things escalate. 

Other topics include countering intimidation tactics during cross-examination, taking your time when answering questions, and remaining flexible with the dynamic, changing nature of an engagement. 

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Professor Marom Bikson, Professor at The City College of The City University of New York, and Co-Director, Neural Engineering Laboratory, The City College of New York

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to welcome Professor Marom Bikson to the show. Professor Bikson has taught at the City College of New York for over 20 years where he is the Co-Director of the Neural Engineering Group. He is an expert on the effects of electricity on the human body and is a published author of numerous scientific journals. He has been awarded several patents. Professor Bikson holds a Ph.D. in Biomedical Engineering from my own alma mater, Case Western Reserve University. Professor Bikson, thank you for joining me today.

Professor Marom Bikson: Thanks for having me.

Noah Bolmer: Of course, Let’s jump into it. Your work as a Biomedical Engineer and scientist is focused on electricity. What pardon the pun sparked your interest in this specific nation.

Professor Marom Bikson: I have always been interested in how the body generates electricity. For example, we can measure brain waves or waves from the heart. Then, I became interested in how you can use electricity to change how the body works. Maybe you could think of a defibrillator. Now there are more nuanced technologies that can be used, for example, in the brain to change how people think or how they feel. For me, being able to interface with the brain to read and write as we say is a fulfilling topic to work on.

Noah Bolmer: Sure. How did you transition that into a career? You have been doing expert witnessing for over a decade now. How did you first get started in expert witnessing? Were you actively pursuing it, or did you get a call out of the blue?

Professor Marom Bikson: It was out of the blue. I think that is how it happens to many professors who do not think of this as an alternative topic they could pursue. Another professor was contacted on a topic that he was not an expert, and he then deferred those lawyers to me, and that is something I have done to other colleagues now as well. It is a way to pay forward that referral and make sure that people who are reaching you are getting the best possible experts.

Noah Bolmer: Let’s talk about that first engagement or your first few, what was that phone call like? What kinds of questions did they ask you?

Professor Marom Bikson: I do not know how much I remember about that first phone call. Now I have more experience and understand what attorneys try to gain from that phone call. I understand they are partially assessing their ability to communicate. They want to make sure that you are articulate and precise. I think that often, there is a specific matter at hand, maybe in your topic area, but you have not had a chance to research the details. Let’s say it is a patent matter. They have sent you the patent and there is an understanding as well that you want to be able to demonstrate some insight into the topic. They must be upfront. You have not begun the research. At that point, they interview you, and they assess whether you are a good fit. That is what you want to communicate to them to let them make that assessment.

Noah Bolmer: During that vetting process, you mentioned that sometimes you might not know everything about a specific topic. Is that always an unsolvable problem? Can you clear that obstacle by doing some research into that or do you have to be an expert on every aspect of the engagement?

Professor Marom Bikson: You do not. You could be an expert in every aspect of it. I think you want to have a certain core expertise. I do work on medical devices now and there are many types of medical devices. However, I understand principles that are universal across medical device regulation, testing, and clinical trials. That gives me some breadth. I think it is very important, at least for me, when I am being vetted to be very upfront with people about what my expertise is and what it is not. That is going to come into play, I am going to be represented as an expert and I am going to be challenged. Hard, potentially right by the opposition on my expertise. I found it very useful to be upfront to let them know what I have done and what I have not done because that is going to become a factor if things escalate.

Noah Bolmer: As an expert, how do you maintain and augment your expertise? Are you always trying to learn new things and more about things, or do you focus on your specific niche?

Professor Marom Bikson: I enjoy consulting because in some ways it lets you expand your breadth. I think as a research professor at university, you have a few projects or areas that you tend to juggle often when you are consulting. You get to move into maybe a slightly adjacent domain, and you do stretch yourself a little. Another way that you stretch yourself is the way you may be providing expert support not the way you would typically conduct research or the way you develop technology. You are learning from the lawyers and their language. You are learning from the lawyers and the legal process that you are engaging with. You are learning from the lawyers and the type of documents and the style of documents that you should be producing. There is an educational process there and as you know, depending on the matter, those rules may be changing. You are never going to know as much as the lawyers. When you are being deposed or something they say, “You know I am not a lawyer, so I cannot answer legal questions, but the lawyers did tell me this.” “The lawyers did tell me that and that is guiding how I am providing my expertise.”

Noah Bolmer: So, it is not being an expert in your field, but it is being an expert on being an expert.

Professor Marom Bikson: I think having been through the process several times, I could have provided more value had I just been sort of a technical blank slate. Again, the day you are a technical expert and that is what you are being asked to do, but I think there is the aspect of communication. There is the aspect of being an A-Team member, and that all comes into play.

Noah Bolmer: Let’s talk a little about preparation. When you have a new engagement, what are the techniques that you feel work best for preparing you for a deposition, a case, or even a report? Do you like, for example, mock cross-examinations?

Professor Marom Bikson: If I am going to be deposed, my experience has been that the lawyers will work to prepare you. The amount of preparation may depend on the stakes of the matter, so it may be a matter one day where they walk you through some questions with you or I have been involved in a matter where it was almost, but not all the time, but regular preparation. They trust in your expertise and your technical domain, but they want to make sure that you understand that the process you are about to be engaged in can be adversarial. That may be a style that we are not, particularly as scientists or technologists used to. Frankly, I think it makes us a little uncomfortable sometimes to be engaged with someone who, nothing against them, thrusts us into an adversarial role with them. They are thinking as an adversary about what I should say. The preparation for that is to speak clearly and not speak beyond your report to avoid being led in a direction that you cannot defend later. So, sorry for their positions. There is preparation and in preparing reports I have never had the experience where I have been left off in the wind by myself and I come back a month later with some documents. The lawyers are responsible, but I am also responsible for understanding the goals, the deliverables, and what the facts are even though I am commenting on a particular technical aspect. That is in the context of some strategy that they have, and so I am just randomly talking about some technical things that I find very interesting. Usually, they are certain. I think it is always useful for me to ask them, “What is the question that you want me to answer?” That is the guiding thing. Even at the interview stage, they are saying they want me to do this and I will say, “Okay, but what is the question that you want me to answer?” That helps, at least in my mind, find tune between what I should be working on, and what I should not be working on.

Noah Bolmer: Do you find you were talking about the adversarial position that you were put in? Do you find that the other side is trying to impeach your experience in a way that you must remember every detail of everything you have ever said in your entire career, or do you accidentally contradict something that you may have said or change the amount?

Professor Marom Bikson: That is a great point. You cannot remember everything you tracked. You want the report that you provided in this matter to be fresh and physically in front of you so you can refer to it. I have learned that if you are asked about something. Even if you do not have a full recollection of it or you have not looked at it recently. You can look at it and ask them, “You are saying I said this. I want to see the full document, not just the sentence that you are saying. I want to see the full document context.” I have learned that you can take your time. Normally, I would say, “Okay, there are all these lawyers looking at me. I should try to be knocking off responses as quickly as possible like I am doing now.” But what you need to do is pause and think carefully about what they are challenging me on like, “Didn’t you in 1993 say not ‘A’?” and then you need to try to answer that question as honestly and simply as possible without elaboration. I have had a few cases where they have pulled up stuff for bypass. For example, I was on a patent matter and they pulled up my patents. They are hundreds of pages, and they are trying to ask me questions about specific lines. I tried to answer as clearly as I could. The other thing is sometimes you will get asked the same question again and again because they do not like the answer. If you ask me the same question again and again, I think what I would do is be responsive to that. I would try to answer differently. “You are saying? Well, no.” Again, it is not a normal conversation. You answer, and you get asked the same question. You give the same answer.

Noah Bolmer: Okay.

Professor Marom Bikson: Yeah, even if they ask you ten times because they do not like your answer, that is 10 times.

Noah Bolmer: That is one of the techniques they use to try and trip you up. How do you keep your cool on the stand?

Professor Marom Bikson: I do not take it personally. I am sure there is no reason to. I am there as a technical expert. I stick to the truth and the facts as I understand them. I feel that puts me on firm ground. If there is ever a situation where they seem to make it seem like I have been inconsistent. Again, I always try to be truthful. Therefore, that inconsistency probably derived from context, or maybe I misspoke at one point. I think that point keeps me comfortable. I stick to what I know and do not talk about what I do not know. You know what that is. It is like that expression, “If you only tell what you know, you always tell the truth.” You do not have to remember anything. If you are lying, you need to keep going straight, but as long as you call it like it is to the extent you are within the limitations of this adversarial relationship with the other lawyer. I have not had an issue keeping my cool. I have issues with the other lawyers. They seem to start losing their patience with me, you know. But I…

Noah Bolmer: Well, that is good for your side, right?

Professor Marom Bikson: Yeah, I would imagine that. Again, one example would be where the lawyer just kept asking the same question again and again and I was just like I am not going to give you another answer. You can ask me. I understand how this works, and I am not going to keep giving you different answers until you get the answer that you want. I have given you what I think is the correct answer.

Noah Bolmer: Do you have a story or two about a time when your role as an expert was somehow pivotal to the case or changed the way you approach expert witnessing in general?

Professor Marom Bikson: I think I have learned stuff from every situation. I was in one situation where I was required to sit down for a video deposition. I was required to sit down for seven hours, and this was a nasty matter between two parties. You could tell they were pretending to be aggressive with one another, and one of the instructions I was given was to take my time and that you are basically on the clock for seven hours. It is not about rattling off responses as quickly as possible. It is listening to the question carefully, asking to see the materials that you need to see. They were asking about a 10-page document that had not been seen in a decade. I would ask to see the document and it is going to take me at least 15 minutes to read it. As an expert, you must not feel bad. This is not in front of a judge. As far as taking this deposition, you must take the time that you need and go through it. Even though everyone is staring at you, you can take the time you need and not rush into something and give an answer. That is sort of a lesson that you learned. However, I was involved in another matter where I guess you could say the stakes were smaller. I think the lawyers knew each other and came into this deposition with much less training and again I was being asked questions. I was trying to be as slow and steady as possible, but then I quickly understood that I think everyone just wanted to go home. They just wanted to get certain answers on the record so they could be home in time. I do not know…. to play ball with their kids. I guess what I learned is there are situational cues, and as an expert witness, you need to understand the expectations for each situation.

Noah Bolmer: Right. Read the room as it were.

Professor Marom Bikson: Yeah, read the room.

Noah Bolmer: Let’s pivot to ethics for a moment. Have you ever felt any amount of undue pressure to express your view as an expert in a way that you do not necessarily agree with or word something in a way that you would not word it?

Professor Marom Bikson: At least in the matters I worked with, I felt, the lawyers knew I was the most useful to them when I was speaking from a position of strength and a position which I was comfortable with. So, at least that is universal. I have been in cases where they are working with me, and they do not want me to say something I do not believe. They do not want me to say something that I cannot adamantly support, so at least in the matters that I have worked on and expectations that I have had on me. They want me to be ethical and to stick to the facts. I think that people who are hiring you will tell you what the questions are they want you to work on. So, you are not investigating everything or writing a book on the topic, so they will ask you to address specific questions. In that sense, you are working for and trying to provide an answer to those particular questions. Of course, they often hope for a certain answer, but what you can do, you can do the work and give them an honest opinion. I feel like sometimes you want to give them an answer that is not what they want to hear but help them. We will find their strategy. We will find their strategy. I said, “I do not know. I think it is not clear in this case.” It is not exactly the way you said it and I think in those situations, they took it well. They revised their strategy slightly and allowed me to answer a slightly different question from a position of higher strength. Again, my experience is the words they want to hear the facts from the expert witness. They want to hear the truth so that they can build on it. They do not want to be blindsided because their expert told them what they wanted to hear, and the other expert is saying that it is completely wrong. I do not have that situation.

Noah Bolmer: I suppose that comes down to preparation, right? You want to find out these things before you end up saying it in the courtroom. They might think that you are going to say A, but you end up saying B in front of a judge or a jury when they could have worked out during the preparation process to as you said, put you in a position of strength.

Professor Marom Bikson: Now that you have mentioned it, my experience has been that usually with the kind of preparation I have gone through you see the questions coming for the most part. You know the topics they are going to be asking you. They are going to be prepping you on the wedge issues. So, with preparation, you tend to understand why they are asking you something. Often there have been situations where there have been prior experts. You review that, and you know those generate new issues and again you see those questions coming. So, I agree there is a level of preparation, which again is not coaching you in what to say. It is coaching you to know these questions are coming and to determine what they mean when they ask you that question. Based on that you can determine what is the correct and truthful answer.

Noah Bolmer: Before we wrap up, there are a couple of questions that I ask my interviewees. First, how important is winning to you? Is it important that your side prevails?

Professor Marom Bikson: I guess I do want to provide value like I want to be good. I have been in situations where I have worked on something, and it settles. I do not know what the settlement was at the end of the day. I am not necessarily privy to how the matter was settled. Did I win or did I lose? I like to think that it is the right fit for me. I can be good at it and provide them with value and strengthen their case. It is interesting. You do not see the end of it. You are an expert witness involved, but you are not in the room. You know what I mean? When the judge makes the final decision, you are not around. When lawyers negotiate the settlement in the backroom. Sometimes you hear intermediary decisions. There was an argument that they wanted you to support, and the judge has not accepted that argument. There is now a setback but even then, what can you do? You are an expert. You speak to the facts of the matter. You know you what a judge or an arbitrator. decides at the end of the day. I guess I would not necessarily feel bad, but I want to be good at what I do.

Noah Bolmer: Sure. Does that calculus enter into deciding whether you take on a case or not? In other words, when a lawyer or a lawyer’s representative calls you and tells you about a case that you could potentially be an expert on, do you think about it in terms of will I be able to add something that makes it more likely that they will prevail? Is that important?

Professor Marom Bikson: That is a great question. You could also ask it like am I driving? Agreeing with them right, and they say, “We want to make this argument, you know what I mean?” and you are saying, “I do not agree with that argument.” I guess we started this initial sort of vetting process. Maybe not at that initial vetting process, but early in the process you know they are going to want to evaluate your hot take on the matter to get your initial tell of what’s going on. Based on that they may, if they do not like what you say, change their strategy, or as far as I know, they may drop you and not use you further on the matter. So, I would say the ball is in their court. I guess I am saying you are calling it as you see it and just like their decision whether you have the right expertise or not, the ball is in their court as far as how they want to proceed.

I am with you, and I have had situations where maybe my role has been diminished. I have had other situations where the case was large, and I took on additional roles, so I was working on one aspect of it and they said, “There is something else. Can you look at it?” and as I was looking into it, they realized I could provide value there as well. I cannot read their minds, but I certainly have not been in a situation where I was at odds with the lawyers. I am working on arguing with them. They decide to engage me, and they can stop at any point.

Noah Bolmer: Do you turn down a significant number of engagements?

Professor Marom Bikson: I think there have been a few. I think I have been turned down myself. I would say that perhaps that is where the vetting process happens. First, they ask me what my level of expertise is and if it is clearly out of bounds, I do not need to be the one to tell them. I think that becomes clear or if they want to take the matter in a direction that I do not think makes logical sense, then again, I would be disqualifying myself. It is their decision not to move. It sounds like a dating thing. But it is them, it is not me. They are the ones who walked away. It is usually not me at all.

Noah Bolmer: One other thing that I

Professor Marom Bikson: That is something that they are paying for.

Noah Bolmer: Like to ask.

Professor Marom Bikson: Their time, right? They are paying for my time. If you want to spend a certain amount of time on something, I will tell them what I think. Then they compensate me for my time. It is not necessarily something that seems why would I not want to do that? I know if it is worthwhile for me. They are the ones who must consider the bigger picture of the value I bring.

Noah Bolmer: That is a perfect segue into compensation. Do you take a retainer? Do you use a project-based approach? How do you prefer to bill?

Professor Marom Bikson: I bill for most matters on an hourly basis, simply because it might be 5 hours or it might be 100 hours. This is fair, and if they ask you for one thing but then start asking you for something else, it is also fine because you are paying by the hour, so it is project-based. There has to be clearly defined and deliverable with well-defined borders on it upfront. I think hours are almost always how I work on projects. I can sell more on things related to product development and there may but so much on legal matters. As far as a retainer, I will usually not. If you are dealing with a large well-known law firm. I have not had issues with getting paid. We want to take the retainer because we are worried about payment. I think if someone is working with a smaller or an independent lawyer and they have some concerns. I think it is very reasonable to ask for a retainer, which is conventionally less than how much they think you are going to be charging them. So, there is a reason for them to hesitate to give it to you. Experts should know for payment you are often dealing with the lawyers, but it is coming from the client, so there is that barrier that can introduce some delays. I would pay attention to your agreements whether it is the lawyers or the client who is ultimately responsible for paying you, If it is the lawyers, and they are saying what they must pay you in 30 days, then even if the client is not paying them, they must come through. If it is a client who is responsible, they are essentially forwarding your invoice to the client. There is usually a vague understanding that it is 30 to 60 days, but you are not interfacing directly with the client. There is that extra gap. but again, I have never seen that be an issue when I am dealing with established law firms.

Noah Bolmer: Do you have any last advice for experts, in particular new newer experts or attorneys.

Professor Marom Bikson: I would say to the academics who have heard this and have not had the opportunity to work in a sport or have had limited experience, and I am unsure if they want to expand on it. It is an opportunity to expand your horizon from let’s say your academic bubble working with different people on challenging problems, to challenge your health in different ways, and I have found the process intellectually rewarding and enjoyable. I guess it would encourage people to look for those opportunities and to make themselves available.

Noah Bolmer: That is excellent advice. Thank you, Professor Bikson, for joining me today.

Professor Marom Bikson: Thanks for having me.

Professor Marom Bikson, Professor at The City College of The City University of New York

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.