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.  

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.  

Episode Transcript:

Note:   Transcript has been lightly edited for clarity.

Host:     Noah Bolmer, Round Table Group

Guest:  Professor Marom Bikson, Neural Engineering Professor at the City College of New York

Guest:  George Reis, Owner at Imaging Forensics

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome two distinguished panelists, both former guests, to the show, Doctor Maron Bikson and George Reis. Professor 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. His research has been published in numerous scientific journals. Additionally, Professor Bikson has been awarded multiple patents and holds a PhD in biomedical engineering from Case Western Reserve University, my own alma mater. Professor Bikson, welcome back.

Professor Marom Bikson: Thanks for having me back.

Noah Bolmer: Mr. Reis is the owner of Imaging Forensics, which provides forensic analysis for a wide range of media, including video, digital images, and photographs. He’s a sought-after expert witness in the US and abroad and is a published author. Mr. Reis, welcome back.

George Reis: Thanks, Noah. It’s great to be here.

Noah Bolmer: For today’s panel, I’d like to focus on the expert-attorney relationship. Let’s talk about getting off on the right foot with the attorney. Mr. Reis, how do you get started with a new attorney?

George Reis: 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 they have, and if I’m a suitable fit for that particular case. 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. And does he or she respect my expertise? I obviously respect their approach to the case and the way that they are presenting themselves.

Noah Bolmer: Professor Bikson, same question. 

Professor Marom Bikson: I like the way George framed it as a relationship. Every individual you’re interacting with professionally, every lawyer may have a different approach, [and] a different attitude. As part of those initial interactions, they’re gauging how they work with you. I try to be very sensitive to the fact that different lawyers can come in with very different styles. I try to be amenable to that while also making it clear that this is what they’re getting as far as interactions with me.

Noah Bolmer: When you say different styles, can you go through a couple of possible different styles that you’ve run into in your expert witnessing experience?

Professor Marom Bikson: Sure. Initially, lawyers are very sensitive to assessing how well you might serve under, let’s say a deposition or facing an antagonistic opposing counsel. You do find in some cases they might push you a little. They might challenge you on certain points, but I also realize they’re doing that in a friendly-fire kind of way. They’re not testing you here. They’re trying to identify things like, “You have a lot of expertise in domain A, but this is an A1, so how would you respond to the fact that you may have a deficiency in A1?” I think they’re listening as much to what you say and how you are able to sort of calmly respond and address what might sound like a challenge.

Noah Bolmer: Does that square with your experience, Mr. Reis? 

George Reis: Yes, I think so. It’s interesting, Noah, when they do ask those questions in somewhat of a maybe aggressive manner or assertive manner, it could be easy to take that wrong. 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. We need to realize during that conversation that it could be easy to misinterpret something, and we want to avoid doing that.

Noah Bolmer: Having said that, are there red flags that you look for at the beginning of a relationship? Things that you look for that make you realize maybe this engagement isn’t for me.

George Reis: They are for me. 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 and overly pushy, then I feel like I’m going to regret taking this time [for] them later, so that would be another.

Noah Bolmer: Professor Bikson, same question. Are there red flags that you look for?

Professor Marom Bikson: Those are always excellent points. On the one hand, as an expert witness in that kind of situation, we are hoping to be able to sell our services to them. We’re trying to be as accommodating as possible, but as just described, I think it’s in our interest to be as honest and 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. What I mean- they might have sent over some material, but it wouldn’t make any sense to spend 10 hours reviewing something in anticipation of a 15-minute call about my qualifications. Obviously, when they start talking about these issues, you’ve got to be very careful to say, “I don’t know. You sent me something, I certainly make a point of looking it over quickly because I wanted to be ready for this call. I’m in no way ready to give you any sort of technical opinion on it” and I think that’s quite appropriate.

Noah Bolmer: Is that in an issue that you run into where you 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 receive the full amount of information, then realize, “I wish I hadn’t taken this after all?”

Professor Marom Bikson: [Many] of the cases I’ve worked on, there’s a lot of materials. It could be hundreds of pages of materials. [There] might be depositions from other experts. You haven’t even seen anything by that initial interview. [They] might have sent you one document that you looked over briefly, so I’m not sure how to assess coming into the matter, whether I’m going to end up in a situation where I wished I hadn’t taken it on. Most of these types of matter tend to be intellectually stimulating. They do tend to be compelling. There [are] things on the line. There are stakes on the line that make it exciting to be part of the process.

Noah Bolmer: Mr. Reis, 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?

Professor Marom Bikson: I’ve had cases in which I wish I hadn’t taken them on, maybe not exactly for that reason, but I could think of a few examples. In one example, the attorney who retained me was certain that he knew the reason why the video had some problems. He was certain that somebody had manipulated and edited the video. Through my analysis, I discovered that it hadn’t. We met at the opposing attorney’s office in order to review the equipment that recorded the video originally. I was able to show him that there wasn’t intentional editing, and the information was very conclusive. He wouldn’t even talk to me on the way back out to our cars because he was determined that editing was done. Later on, he calmed down a little, but when he originally called I should have seen he had a definite opinion as to what the case was, how [he believed] it was done, and what he needed to prove. I’ve had other attorneys who have [had] something in mind and they know that’s the case. They’re incorrect in that knowledge [because] they don’t have that knowledge. Then they push you a little bit to try to come to their predetermined opinions, which is problematic. If you can avoid those at the beginning, it’s best.

Noah Bolmer: Professor Bikson have you had a similar experience where an attorney has maybe nudged you a little harder than you would prefer?

Professor Marom Bikson: I appreciate that concern. Obviously, a lot of attorneys are going to be very careful not to do that, one would hope. Many of them recognize that you’re going to be the most useful to them if you come at things objectively and are able to back up your conclusions. Right? To go [out] on a limb in a direction you’re not very comfortable with or can’t support may ultimately not make you a very good witness. I appreciate everything George was saying, but again, he recognizes, and I recognize, and many lawyers recognize, the best witness is someone who believes very strongly and has confidence in what they’re talking about. [They] have not been pushed into a corner that ultimately they can’t defend.

Noah Bolmer: That’s a good segue into bad news. How do you deliver bad news to the attorney? You come across something, and you realize this is not going to go the way that they want. Obviously, an expert witness’s duty is to 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. When those two things are at loggerheads, what is the best way to deliver that bad news to the attorney?

George Reis: 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. One of the things that I consider the role of the expert to be is like in the movies. Not the hero of the movie, but the guide. 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. If I find that the person in this video who is being accused of bank robbery is indeed their client, it’s good for them to know that as soon as possible. It may not be the news that they want to hear, but it’s news that’s valuable to them just the same.

Noah Bolmer: Professor Bikson, the same question.

Professor Marom Bikson: 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 or trying to help them understand the evidence at play. The lawyers are developing their own strategy. They’re trying to figure out what arguments they can make and what arguments they should not make. You’re not necessarily- it’s not necessarily good or bad news. You’re trying to help them understand the facts and where those facts may lead. That will help inform them [about] what kind of strategies they should take. [I’ll say], “This is a direction we should go on. This is a winning argument. This particular argument is going to be very hard to support.” [On many] of the situations that I’ve had a chance to work on, there are many decision points where the lawyers can choose the hill that they want to die on. To George’s point, you’re giving them the best possible information, so they come into it equipped to pick their battles.

Noah Bolmer: Let’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, and perhaps your testimony, if it’s been a jury trial, and then you might be finished. The case may precede the settlement. It may proceed to go all the way through to the verdict. Do you contact the attorney afterward to find out how it went? 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 or to get advice vis-à-vis your own performance?

Professor Marom Bikson: George, I’ll go first. You went first last time. It’s always harder to go first, isn’t it?

George Reis: I was hoping you were going to go first.

Professor Marom Bikson: It’s nice to hear the other opinion and be able to build upon it.

I never even heard of the option of going in 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 could be a big contrast. Up to that point, maybe you’re speaking for hours on a daily basis leading up to this particular moment. 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- on the other things on the case or maybe just getting back to their families. I have not found in my experience that I get reports afterward about what necessarily the results will be. I have found out that when I’ve emailed and asked, “I’m curious after this whole process what the resolution was?” they tend to be rather happy to share what information they can. Often, it’s interesting and educational for me to find out what the final decision was and the rationale for it. Of course, there are other situations where the matter is settled. You spent a long time on whatever particular arguments you did, and you provided your technical support, but the issue gets settled, and at that point, you don’t get- it’s hard to know specifically what role you played. Hopefully, you played a positive role in your side getting the best resolution they can.

George Reis: We’re actually in agreement on this. This is an area I thought we might have had a little bit of disagreement or different views. I generally don’t ask the attorneys what the resolution of the case was unless I have a reason to want to do that. Maybe my role in it was more complex than usual, so I’m curious about that. Maybe it’s a new client and I want to develop a long-term relationship with that client, so following up is nice, especially as Marom said, when things are settled prior to going to court. One of the things that is good is a follow-up e-mail or a call to say, “I hope that the information that I provided was valuable to the settlement of the case.” That helps establish that long-term relationship. As 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 the information, and it’s usually good to hear when there are opposing experts to hear how jurors view each expert. Especially if you’re against somebody that you had concerns about in the first place for various reasons. This can either confirm it, or you can say, “I perceived that differently than what a juror would.” Those have been nice to get in the few times in which attorneys provided me with that juror feedback.

Noah Bolmer: Mr. Reis, do you believe that this is something attorneys should be doing routinely, giving their experts not just jury polls but feedback in general? In my view, it seems that ultimately you would help them as well, because the better you are at your job, the better you can do for their end client.

George Reis: That’s an interesting question. For a new expert, absolutely. Every attorney knows when they’re hiring someone who’s a new expert, giving them feedback is essential to help them grow and get better. With a seasoned expert, it’s a mixed bag. Obviously, some seasoned experts are good at their work. Hopefully, they 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. It’s up to the attorney if they think that feedback would be helpful to the expert. I always love to get it.

Noah Bolmer: Professor Bikson, do you typically know the attorney when you get an engagement? In other words, are you called by paralegals or other representatives, or do you typically speak one-on-one with the attorney during an engagement?

Professor Marom Bikson: In my experience, it’s almost always with the attorney, and it often ends up being the attorney that I end up working with. [Everything] I do is in intellectual property, so these would be specialized lawyers, and maybe because they’re very invested in their experts, they’re talking to me from the get-go.

Noah Bolmer: Mr. Reis, the same question. Do you typically speak first with the actual attorney for the case, or do you get a representative?

George Reis: 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 the attorney is 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. I want to know how that’s going to work. There might have been one or two times I’ve regretted not finding out a little information about the attorney in those cases.

Noah Bolmer: That brings me to my next question. Without naming names, are there attorneys that you wouldn’t work with again? A follow-up to that is, if they call you or a representative calls you, how do you handle declining those engagements?

Professor Marom Bikson: One of the obviously disappointing or discouraging aspects of perhaps being an expert witness, is if the client is somehow hesitant or not compliant with compensating you for your time based on the agreed terms. There are different reasons why they might be doing that, so it’s important in a relationship. I think we’re often asked to be extremely responsive if we need to do something over the weekend. As expert witnesses, we try to be good team members and do that. In a similar way, you don’t want to be in a relationship where it takes months of follow-up to have an invoice paid or where you feel that it’s not being followed up on. I haven’t had many of those situations, but in situations where that does happen, that certainly becomes- usually, the lawyers will suggest it is the client rather than them, but in any case, that’s the situation. There’s a lot of frustration, and if you were to go back into a relationship with that client or with those lawyers, you may ask for a retainer. 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 leverage because they need you to keep supporting them. But once the case is over, you’re expecting them just to act responsibly and to clear out any remaining invoices and expenses.

Noah Bolmer: Mr. Reis, without naming names, are there attorneys that you would never work with again with again? Is this something that’s happened?

George Reis: I have a list. Let me read those names [laughter]. 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. When I refer them to someone else, I like to let that other person know that “When I worked with this attorney in the past, I had this particular issue, and I want to make sure you’re aware of that going in.” Then they can deal with it how they wish.

Noah Bolmer: Beyond billing problems, have there been other categories of issues that you’ve come up against that would prevent you from wanting to work with a specific attorney again?

George Reis: Those would be the cases for me. I generally don’t have billing issues. I’ll give one example. I had an attorney who wanted me to give a certain opinion but did not indicate that in the initial call. I had a call with him letting him know my results verbally. He said, “Yes, I need a report on that.” I said, “Great.” Then, I wrote the report. He called [me later] and said, “I can’t use this report because you didn’t say ‘X’.” I said, “I called you and explained what my findings were, and you had no issue with it on that call. You had no issue with it on the call. Now you’re saying something else.” He said, “Let me send you a deposition that you can read, and I’m sure that will change your opinion.” It was a traffic accident, and the person didn’t recall being in the accident or pressing on the brakes. The issue was whether in the video did the brakes show or not. I called the attorney back and said, “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.” [The attorney] wasn’t happy with me and I wasn’t happy with him, and the relationship. Two weeks later, he sent me a request to connect on LinkedIn, which I ignored. If he were to call, obviously I would refer him to somebody else.

Noah Bolmer: I usually try and keep the show positive, but those negative experiences can sometimes be learning experiences. They are the things that newer expert witnesses need to hear so they know what to do when they find themselves in those situations. That said, I’d like to shift gears a bit and talk more about the attorney-expert relationship. Mr. Reis, what makes for a good attorney-expert relationship? What are the main factors you look for and the attorney should be looking for to make a positive engagement?

George Reis: There are two things, at least two, that come to mind. One is good communication, which is great in any relationship. Many things can be resolved if the communication is good. The second thing is being competent at your work. Delivering more than you promised to deliver and never exceeding your area of expertise. Knowing your limits, as well as being competent in what you’re doing.

Noah Bolmer: Staying in your proverbial lane.

Professor Marom Bikson: Those were excellent points. I would add that sometimes you may be working on a case and it’s complicated. You’re dealing with hundreds of documents and many potential arguments, and the lawyers ask you to answer a specific question but there are 1000 directions you can go with it. A good relationship is when you start working on these problems and discuss them with the lawyers, and they identify areas they are excited about. They think these things are legally actionable, and therefore, you, as an expert witness, can focus on those directions. I’ve learned that those editor 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 are so many documents at play and so many ways you could approach the problem. Let’s say there’s an IP case where there are ten patients, and each patient has ten claims. You have a hundred claims you could be looking at depending on what the goals are. Where you place your attention is something I think you can learn. The other thing is as far as questions we ask the lawyer, you asked before about when the matter is done. I do find that when the matter is ongoing, I do want them to explain the legal process and the motions they’re going through. It doesn’t necessarily directly affect how you’re going to look at the facts, but it gives you a little perspective. What kind of arguments are being made and what is the type of product they’re looking for you to deliver at each stage? Usually, I’ll say, “This is the question I want you to answer.” I have found that that process has been educational to me. It’s useful for that case, but also for future cases when you’re working on similar matters. Now, you understand this is the motion and the question I need to answer in this part of the case. Later on, I’m going to have to answer that question in a different way. It’s an educational process that carries through to new cases.

Noah Bolmer: That’s an interesting point regarding a strategy. How proactive should expert witnesses be in assisting their attorneys with strategy? For instance, if they think it might be best to say “X” during the deposition but say “Y” during the trial. If there’s a better way to communicate something, should the experts be proactive with their attorneys, or should they stand back and let the attorney steer the ship?

George Reis: That’s a great and complex question because there are a lot of ways to look at this. One of the things I would say is the difference between the type of work Marom does, and the type of work I do is he works on complex patent cases. I work on cases in which I’m clarifying a video or determining whether or not a video or photograph has been altered. My cases are 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 attorneys who know his field well. In my case, I deal with attorneys who don’t know my field well. They do not know about video or about authenticating photographs. It’s something they might have in a handful of cases, so they’re not going to be well-versed in it. Knowing the strategy, they want me to take in a deposition is always valuable. “Do you prefer me to answer yes or no? Do you want me to go ahead and provide narratives, for example?” That’s essential. Educating the attorneys in my case is valuable because they generally call and say, “I don’t know anything about this, but-.” They’re looking for me to provide them with the information and an understanding of the technology that’s behind the evidence that we’re looking at. An understanding of what questions they should ask in depositions and in trials. From the standpoint of providing them with information, it’s essential to understand the strategies they want me to take during deposition and trial at this point.

Noah Bolmer: That’s an excellent point.

Professor Bikson, when you are working with attorneys who, as Mr. Reis said, ostensibly understand their field. They’re in the same field as you and aren’t laypersons vis-à-vis the subject matter, do you find it makes them more or less receptive to your strategic suggestions during the case?

Professor Marom Bikson: I like answering after George because I remember what he said and then it lets me- I can build on from there. On IP matters and 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 was brought in to have that level of it. That is one aspect of it. Obviously, you’re going to have a level of adaptive expertise that they don’t. You would hope so. Even when they come in and have some technical background, there is a space with which they may not have the same kind of clarity that you do. It’s very useful to sometimes say, “Rather than just focus on exactly the facts of this case, a particular image, or whatever claim that we’re looking at, I want to take a little bit of time, 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, or to a jury. I want to walk you through that so that I can-” and they appreciate that. That empowers them to then understand how you’re reaching your conclusions. I did like the way George broke it down. There is the aspect of how they will advise you to present yourself. Qualitatively, whether you should be giving long answers or short answers in this particular situation, or what the expectations are of you. That’s one level of strategy where they’re telling you what to do.

The other level of strategy is where you’re telling them how to approach things at a high level. That rarely happens in that sense. That’s supposedly their job. They’re deciding on what arguments and motions to make. You’re doing everything you can to provide them with facts and analysis to help them make that decision. As we’re trained to say on the expert witness stand, “I’m not a lawyer.”

Noah Bolmer: The way you answer questions, as you stated, matters a lot. Not just the content. Let’s talk about demeanor in depositions and courtroom and the preparation for demeanor that your attorneys give you. Professor Bikson, does your attorney typically give you advice on how to present yourself? How to answer questions, not just the content, but your mannerisms, even down to the way that you dress? Is this something that comes up in terms of strategizing with your attorney?

Professor Marom Bikson: There will certainly be preparation. How much preparation will depend on how confident they are in your experience, which is a judgment they will make, [based on] the stakes of the case and where you are in it. I have been in situations where over extended periods of time, we’ve sort of gone through a sort of mock back and forth, and in that context, they’ll certainly pause and say, “In this case, I would prefer you go in this direction.” or I might even say, “Let’s step outside of this role-playing. I want to ask you a question. I don’t really understand in this case what the expectations are from me.” Those processes have been educational because I think the way you speak and the precision that you need to speak with as an expert witness is not day-to-day communication. You need to be careful in your choice of words, as George was saying before, to “stay in your lane” and not get into areas that are either not your domain of expertise or not things that you were asked to look at. Don’t go in those directions. Those are all things that you get from the lawyers.

As far as your demeanor, you want to be very even. I don’t think anybody wants to see a hysterical expert witness or to lose your their cool. Even in situations where you may be very pressed. I also find it’s useful to kind of find your pace which may vary from situation to situation, and not change your pace. If someone is coming at you very quickly, like I had a deposition where within the first second, just like out of the gate, let’s go very rapid-fire questions came at me. I just took a breath, and I thought about it and I made sure that I answered when I was ready. Make sure that, depending on the situation, you keep a pace that you’re comfortable with and that you’re able to think through each one of your answers to make sure that you speak in the most accurate way that’s useful.

Noah Bolmer: Mr. Reis, do you agree? Have you done mock examinations- mock cross-examinations, or mock depositions to prepare for these cases? Do you find the advice of your attorneys vis-a-vis demeanor to be useful?

George Reis: Yes, in both cases. Now it’s my turn to say, “I love coming after Marom” 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 attorney prep has been very useful. 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. Opposing counsel earlier in the case was actually exhibiting psychological problems and the judge in that case recommended that he see a counselor. The prep on that case was, “Be aware this attorney might start yelling. They might go way off on completely different topics, so be aware of that so you can be ready for it and not react. Instead, be ready to answer relevant questions.” Another case was when I was testifying in London on a matter last year; the attorneys that prepped me in that case, and 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.” 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 helpful because it would be a very different aspect. However, in that case, it turned out that the attorney on the opposing side that was questioning was from Texas, was very laid back, and didn’t ask the rapid-fire questions, but boy, I sure was prepared if he did.

Noah Bolmer: Professor Bikson, 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?

Professor Marom Bikson: You certainly hope you have ample time. You know what’s coming. Usually, at that point, you have a 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. You have identified some key wedge issues that are very important to either side. They’re going to want to push you on those issues that may be the critical ones. Hopefully, you are prepared. It is a very unusual form of interaction, and it has this adversarial quantity- quality to it. For me, there’s a little bit of anxiety in the sense that you want to do well and you want to speak clearly and truthfully to the facts. There could also be a little bit of anxiety that you’re not used to being in a situation where you may be interrogated by someone who is trying to discredit you and trying to show that you’re inconsistent. First of all, that requires starting from a position where you’re speaking about things that you are confident in and which are true. As the saying goes, “If you always tell the truth, you don’t have to remember anything, because it’s only with the lies that you get caught up.” You’re speaking from a position of confidence where you think the facts are on your side.

I’ve been in situations where they will find quotes and things you’ve said in the past that, if they’re taken out of context, appear to be the exact opposite of what you’re saying now, in a different context. They will challenge you and say, “Is it true?” You’ll say, “Yes, it is true.” Then they’ll pull something up from a completely different context and say, “Did you say A is not true?” In those situations, you want to respond as clearly as possible to say, “Yes, in that context, ‘A’ was not true, and in this context ‘A’ is true.” Those are situations that the more experience I’ve had, the more comfortable I’ve been, and if you’re not experienced in that kind of situation, you might be caught off guard. Especially, if you come from a more “technical, nerdy” background. That’s not how you’re used to interacting with people, and all of a sudden, here comes someone with this barrage of inquiries. That is, again, intended to try to discredit you.

Noah Bolmer: Mr. Reis, you’re a published author. Has this happened to you, where people will try and either take the things that you’ve said or written out of context or try to impeach you on something that you said forty years ago.

George Reis: Surprisingly rare. So yes, it has happened. I’ve had quotes from articles I’ve written. I wrote a book, which I don’t think anybody ever read, so nobody has quoted that. One time I was asked about my political views, which I found quite shocking. I had run for state office once and was asked if I was the same George Reis. Then they started to ask, “Do you hold the opinion that-” and obviously, the retaining 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 were not going to like it.” But you just don’t know what’s going to be asked.

Noah Bolmer: Absolutely. One of the things I’d like to ask about that I’ve had a few experts mention is the utility of visual aids in reports to juries. When have you used visual aids as an expert witness? If so, have you found that it’s useful in explaining something difficult?

George Reis: That’s an easy one for me, so I’ll jump in. All of my evidence is visual. I analyze photographs and videos so in every 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. In that case, I actually had to describe them verbally, which was a little awkward, but it ended up working out. With that one exception, I always have visual evidence.

Noah Bolmer: Professor Bikson, visual aids?

Professor Marom Bikson: 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. Since you want to explain a concept, the best way to explain that concept is to create a cartoon or some kind of block diagram that helps to see what you’re talking about. Again, in the situations I’ve worked in, it doesn’t come up so often. I mentioned that example where sometimes I’d come up with a visual tool for the purpose of my discussions with the lawyer. In some cases, they will like that, and they’ll say, “We’re not going to ask you to bring that into the report unless it’s specifically asked for.” In the kind of stuff that I do, you don’t generate new imagery. Sometimes, there may be a particular figure that is very important or is being contested in some way, and you might annotate it. In those cases, I might add some markings. This arrow right here is what I’m referring to, but not more than that, typically.

Noah Bolmer: These days, 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. Reis, the expert witness fit in? Overall, on 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 funnel through the attorney first?

George Reis: That’s depending upon the case. I work on 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 that impact was in an accident. what the damage was, and what the injuries could be. In that case, I’m working directly with the other experts in order to provide them with the information they need. In most of my cases I’m working directly with the attorney. Maybe my evidence doesn’t affect other experts’ work. I’ve worked on a couple of military cases, and in the military cases, the JAGS (Judge Advocate General’s Corps), bring in the entire team for the entire trial. Where there are for opening arguments, and where they are at sentencing. Those have proven to be 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 and how they answer questions. It’s educational from that standpoint, but also surprisingly, pieces of information can come in, and completely unrelated expert testimony then becomes valuable to something that you were analyzed. I’ve found that when we can work with teams and interact with each other, there can be an added value that could be unexpected.

Professor Marom Bikson: 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 work with me or under me. Maybe be the main expert that this legal team was referring to, but I’m telling them there’s some dimensions here and you’re going to want to bring in other people. In that case, I’m going to be working directly with the lawyers but hand in hand with these other experts that I have recruited. What my experience has been, at least when there were other experts working with me on the same side, often my traction was very compartmentalized. I think sometimes, at least my experience has been that the words are actually very sensitive to the nature of that communication because it’s not just casual discussion. In that case, they control that communication, and usually when you have those interactions, there’s a specific goal in mind. They want you to exchange information on a particular topic and they would like to leave it at that. For example, that expert is writing a report, and that report relies on something that I need an opinion on. I’m speaking to them to convey that information, so they can move on ahead. Or there’s an engineer who works in the company, and they’re speaking to me to relate very specific information I need about a particular product that is critical for me to write the report. Again, the discussion is limited to that sense. When you asked that question, it made me think that 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, some cases are very large, and I will only talk to one lawyer. There won’t be anybody else on the call, but I know there are other people around, but the way they could compartmentalize it. This went on for months, and I only spoke to one person, and that’s how everything and the emails were conveyed. Then there are other situations where there are multiple people involved or where depending on the matter of being moved from one person to another, so it’s very interesting to me that different law firms have different cultures about how they approach who the expert is communicating with.

Noah Bolmer: Do you have a style? Do you have a stylistic preference there?

Professor Marom Bikson: No, not at all. It’s very different. I would say when you’re dealing with it, it’s a different thing. When they have 4 or 5 lawyers on the call with you versus just one. Knowing that person is in communicating that information to the other ones. I guess that it must be a strategic decision of how they want to go about doing things. So, no, I wouldn’t. For me, I don’t think it necessarily affects things one way or the other. You develop a closer relationship when you’re talking to just one person, and maybe that’s part of it. It’s always you and that person, it’s not just you and four others.

Noah Bolmer: Before 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 Bikson.

Professor Marom Bikson: If you’re new, regardless of how strong you are technically, you’re not going to have the same experience as writing reports. As far as the depositions, that is something that they’re going to be sensitive to. We talked about your communication and your demeanor, what George was emphasizing, that communication aspect of it. That’s going to be very important; you pay very close attention to your ability to project and be very clear in your discussions with the lawyers because they will be assessing that. That is something I think always matters, but perhaps that has extra weight when you have less experience to lean on as far as records, writing reports, or being deposed.

Noah Bolmer: Last advice, Mr. Reis.

George Reis: Two things come to mind. One is to meet other experts and form relationships. That way you could get an idea of how they approach report writing. How they approach communications with attorneys. How do they testify. Then secondly, I would say go to courtrooms and watch experts testify. That’s incredibly valuable. I’ve gone to the local courthouse and walked in on trials for the purpose of seeing what kind of questions get asked and how the experts respond to those questions.

Noah Bolmer: Sage advice from both of you. Professor Bikson and Mr. Reis, thank you for joining me for today’s panel.

Professor Marom Bikson: Pleasure

George Reis: It’s been a lot of fun. Thanks.

Noah Bolmer: And thank you, as always to our listeners, for joining us for another Discussion at the Round Table.

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.