In this episode…

Expert witnesses can fall into the trap of using excessive technical language to appear intelligent, according to Professor Stanley Dubinsky. He recommends writing as plainly as possible and reading your expert reports aloud to ensure that the language you write is both precise and understandable.

Check out the full episode for our discussion on giving away too much during initial calls, becoming a virtuoso in your field, and billable rates.

Episode Transcript:

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Stanley Dubinsky, Co-Principal of ConflictAnalytiX, LLC and Professor of Linguistics at the University of South Carolina

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Professor Stanley Dubinsky to the show. Professor Dubinski is the Co-Principal of ConflictAnalytiX, LLC, and a professor of linguistics at the University of South Carolina. Through analyzing the meaning and structure of texts, he helps guide attorneys through the complexities arising out of structured grammar and normative usages of language. He holds a Ph.D. in Linguistics from Cornell. Professor Dubinsky, thank you for joining me today.

Stanley Dubinsky: You’re welcome. I’m delighted to be here.

Noah Bolmer: You’ve been in academia for over 30 years. How did you first become involved in expert witnessing?

Stanley Dubinsky: It goes back over 20 years, and it came out of an inquiry. [A] law firm in town was looking for someone to help adjudicate the interpretation of- at the time I think it was an insurance claim. They called me up and said, “Could you help?” I said, “I’ll do my best.” I’m not trained as a lawyer, but I’ve been told I ought to have been one by some. Sometimes that’s said in a friendly way, and sometimes it’s not, but you know how that works.

Noah Bolmer: Absolutely. Most experts aren’t attorneys, outside of the patent and IP field. [Many] of those guys are. What was that first phone call like? Was it out of the blue? Were you trying to court engagements?

Stanley Dubinsky: I wasn’t trying to court anything at the time. It did come out of the blue. It was a local inquiry. So many of these come up when someone calls the university, the department, the department chair, or somebody else and says, “Do you know anyone who can . . .?” Sometimes they’ll call a person like me, or put something out on an email list [saying], “We have an inquiry from so and so.” Sometimes it’s a reporter. Sometimes it’s a law firm. Sometimes it’s someone who wants help with something. I have a- I guess it’s a problem; I often respond to these things because I don’t know where it’s going to go, and I’m curious. Curiosity kills the cat, and it can also get business, I suppose.

Noah Bolmer: What sorts of questions did they ask to vet whether or not you were the right person for the engagement?

Stanley Dubinsky: This is an interesting thing. I was thinking about this before this call. Often, I’ve had situations, and I’ve only done fewer than ten of these, which have been law firms. My most recent one was with a public defender’s office that was reaching out. They very often want to say, “We have this problem. There’s an exclusion clause in the insurance policy, and there’s an argument over the wording or phrasing. Do you think you can help?” Sometimes they will send it to me [with] a text and say, “Do you think you could help with interpreting this?” More often than not, if someone gives me a problem, I can. If it has to do with language. I can’t be your psychologist or psychiatrist, but if it has to do with language, I can probably solve the problem. What I was going to say, and this goes back to the questions one would get, was a lesson learned. They say, “Don’t give away the milk because then they won’t want to buy the cow.” This is the case in this particular regard too. It’s something that is pertinent to language and linguistic expertise in the field. This is that experts in chemical processes, experts in patent law, experts in construction, or other kinds of things are recognized as experts, and no one questions their expertise. No one who needs an expert, let’s say for a drug case, a chemical case, or harm done by some pollutant, is going to second- guess the expert in that case. But I can assure you that one of the most common things a linguist faces is being second-guessed by the lawyers who engage him.

Noah Bolmer: That’s interesting. In what ways do they try and impeach your expertise?

Stanley Dubinsky: My experience is not that they try to impeach my expertise because if I get on a case and if I have something to say, I will say it in a way that is unimpeachable. I promise you. However, I have had at least one occasion, maybe two, where I had an attorney on the phone with me, and presented me with a problem that they had. They said, “How would you solve this problem?” I told them, off the cuff, “This would be my approach.” They said, “That’s great. That’s a good idea. Thank you very much.” I never heard from them again. Why? Because sometimes a language problem can be solved easily or relatively easily, and people who trade [in] languages, in general, that includes people in the law profession, who see themselves and rightly so, as experts in language, because that’s what lawyers do. They are experts in “language”. Now, I would say one caveat here is that the lawyer who basically picked my brain for an answer, got the answer, and never called me back again did not come to court with the best argument he could have made because I assure you that if I get my hands on a passage, I can do good things with it. That goes into the realm of what do you do? Can you do what needs to be done? And we can talk about that.

Noah Bolmer: How do you protect yourself from that occasion where the initial phone call can give them everything that they perceive they need to know anyway? It’s a matter of being proactive and saying, “I can’t answer that. I know how to do this, but I’m not going to do it until you engage me.” How do you deal with that?

Stanley Dubinsky: At this point, having had a number of cases and having done it … done this job a number of times, I can easily give somebody a sample of what I’ve done, which is not pertinent to their case. I say, “Here are a couple of affidavits that I’ve drawn up. You can see from what I’ve done how I do it, and if you like the quality of this work, I’d be happy to engage with you and we can go on with your problem.” That bypasses the issue of “How you would solve my problem?”

Noah Bolmer: I speak two languages, but not often. As a lay person, is linguistics a dynamic enough field that you feel the need to constantly stay on top to remain an expert? In other words, many medical and engineering professionals need to stay [up-to-date.] How about linguistics? How do you remain an expert in your field?

Stanley Dubinsky: Becoming an expert in language, linguistic interpretation of the law, and legal documents is something that you get to. Once you’ve done it, you have learned to do it well, I don’t think there is much to keep up with as a linguist, and method-wise, as a researcher. In terms of my research, experiments, and working with students, I would say it’s more akin to virtuosity with an instrument than it’s keeping up with the technicalities of a particular technical profession. Once you’ve learned to play the piano or the violin, and if you are a virtuoso, and if someone hands you music, you can play better than someone who’s only been doing it for two or three years.

Noah Bolmer: Right.

Stanley Dubinsky: The key thing is that it’s not the technical issues making your observations understandable to the layperson, the court, the witnesses, and the jury, because what I can’t do as an expert and I can’t do it- I mean, experts in physics, chemistry, and medicine tend to go off [using] their own professional jargon quite a bit. When you’re talking about language, you can’t do that. You have to render what you’re saying in a clear way. You must be able to back it up with examples. One of the things that comes with the territory, comes with the expertise, is being able to come up with, concoct, or otherwise find examples in real natural language of what you’re trying to tell people.

Noah Bolmer: So, you are learning by metaphor by some extent.

Stanley Dubinsky: Let me give you one quick and dirty example. This comes from a cartoon strip called Shoe. If you remember the cartoon strip Shoe. It was a long time ago. Marge, one of the characters in Shoe is saying to another one that she tried on the dress in the window of the department store, and-

Noah Bolmer: Yeah, I think I know where this is about to go.

Stanley Dubinsky: -the character says, “You know, Marge, they do have a dressing room.” That’s the joke. It’s based on what? It’s based on an ambiguous sentence.

Noah Bolmer: Right. Subject, object and agreement.

Stanley Dubinsky: Well, yeah. In other words, “try it on in the window” or “try on the dress that’s in the window”. There are various ways to phrase it. What happens is that there is a slippery slope between written language and spoken language. When people write, they often have the language in their heads. They know what they mean, and what happens is that we, as language users, extract a tremendous amount out of the oral recitation of the language.

You could say: She tried the dress in the window on. Or: She tried on the dress in the window. Or: She tried on the dress, pause, in the window. Right? And they mean two different things. Guess what? When you type or write a sentence, you don’t have the intonation. You don’t have the pauses. You can insert commas if you’re strategic, but sometimes even commas don’t help you.

So, I’m just giving one kind of example. One of the interesting things about language- and this is another oncoming right field for litigation, I think, is the difference between what we do verbally and what we do in digital devices texting. You can imagine the uncertainties and the misunderstandings that take place over text. We all know this. And the text world has not caught up with spoken language, because when we text somebody, we think we’re talking, but we’re not talking. We’re typing, and when we type what we think we said, we tend to make all kinds of errors. And we tend to propagate misunderstandings that often become memes. Many Internet memes are out of text. Does that make sense?

Noah Bolmer: It makes sense. It reminds me, I read an article a couple of years back that made the case that the way young people use emojis. They’re using it like punctuation-

Stanley Dubinsky: Absolutely.

Noah Bolmer: -to try and convey some of those long pauses and get more meaning across. Unfortunately, we can’t use a bunch of smiley faces in expert witness reports.

Stanley Dubinsky: You can’t. One of the interesting things about legal language is that it sometimes- legal language gets so kind of convoluted in an attempt to be clear and winds up being worse after it’s done. You get in a situation where someone falls all over themselves trying to be clear, and as they are trying to be more and more clear, their verbiage becomes ever more complex and harder and harder to unravel. It’s almost like when you’re weaving [knitting] a scarf or something like that, if you have enough loops, turns, curls, and stitches in it, you’re more likely to have some knots in the fabric.

Noah Bolmer: Sure.

Stanley Dubinsky: More than you want. The knots are sometimes hard to unravel. That’s kind of the language that lawyers and people who write laws get into. The most recent case I had was a public defender’s office trying to argue against people having to put up an inordinate sum of money to guarantee their bail. The law was clearly not intending. The way it was written by someone, in some office, who was trying to make things clearer, was not cognizant of the fact that when they said, “this one”, “that one”, “he”, “she”, or whatever, they’re using pronouns.

They’re using references to previous passages in the paragraph. It gets convoluted, and that’s where I come in and say, “Alright, let me unpack that for you.”

Noah Bolmer: Expert witnesses do a lot of writing. They write expert witness reports and affidavits. They write in their own day-to-day work. I’m sure that you’ve published in academia. Can expert witnesses who are not linguists make sure that they are being simultaneously precise but also understandable in the sense that people are picking up what they’re saying, the way that they meant it?

Stanley Dubinsky: Right. That’s a good question, and it’s an important one. It’s something I work on with my students in writing, and something I’ve worked on in my own writing. You have something complicated to say, but you have to be able to hear what you’re saying as you write. You have to be able to step outside your own writing and be your own audience. Have that internal editor in your head. I would say this, for the novice- and I was once a novice. I’m old now, but I used to be a novice. The interesting thing is that for the novice, there’s nothing better than getting yourself an audience, if you haven’t cultivated your own internal audience. Going back in time, and this is not as a legal linguistic expert, but as a linguist writing as a linguist, I was writing my dissertation. This goes back decades, and my girlfriend at the time was my audience. I would show her a page or a passage or something that I had written, and she’d read it, look up at me, and say, “I don’t get it. What are you trying to say here?” Then I would start to explain to her what the passage meant and what the page meant.

What I was trying to get across. She would look at me, and she’d say, “Well, write that.”

In the process of doing that, you learn to be clear, because you learn that you have to do certain things to make it clear to your audience what you’re talking about. I’m always- there are some critical things. Never introduce a term without telling people what it means. Don’t assume people know what- now, you can always use a term if you’ve made it clear, you don’t want to overpopulate your writing with terminology. You can certainly use a term if it’s needed, and you have to decide if it is needed? Is plain language better? And sometimes plain language can be better and sometimes plain language in itself is confounding and imprecise, you have to say, “No, I have to go with some terminology here.” When introducing the terminology, you always explain what you mean. It’s like acronyms. If you go into the military or anywhere near the military, people love acronyms. I tell my students all the time, “Do not ever, even if everyone knows it, use an acronym without first spelling it out.” Spell out what you mean, and then you can use the acronym. I would even take it so far as if someone were to say, “HIV, Human Immuno Virus” or whatever-

Noah Bolmer: Human Immunodeficiency Virus

Stanley Dubinsky: I don’t know what it is. If I were to use that acronym in a document, even though I know everyone knows it, I would spell it out. Then I would use it. These are tweaks or tricks that you want to be sensitive to, and as I said, virtuosity comes with advantages. I’ve gotten to a point where I can read back to myself what I write and hear it as an audience and know if it was clear or not. For years, I would always show someone what I had written, or better yet, read aloud what I had written. The best trick for good writing is to read it aloud. I catch so many of my own errors and missteps, even when I read what I’ve written aloud to myself. I’ll never send something off- even e- mail messages, without reading them out loud because you catch yourself.

Noah Bolmer: It’s interesting that, while you were saying you had to read it aloud, my mind was thinking, “I wonder if it would be useful to read it aloud and have it played back to you so you could hear what it sounds like.”

Stanley Dubinsky: That’s absolutely wonderful. Reading aloud to someone, reading aloud to yourself, or reading and recording it, then, playing it back to hear what it sounds like. The key thing here is clarity; whether it’s in testimony, in a courtroom, or whether it’s in an affidavit. It needs to be heard; it needs to be read aloud. One of the interesting things- because I teach my students this all the time.

Sometimes you’re given a certain amount of time to speak, and one of the difficult things is that people often exceed that time. You often see this in Congress. They say, “I’m reclaiming my time.” Or “The congresswoman is out of time.” It’s this kind of thing. It’s constant. One of the things, and this is a go-to guide, which I think is useful for anyone who’s writing or going to be speaking. How fast do you speak? About 120 words a minute, unless you’re an auctioneer. You’re going to be speaking about two words a second. Two words a second is about 120 to 125 words a minute. Now, if you have to plan to speak for 5 minutes, write 750 words. Don’t write more. You won’t be able to say them. If you want to know how many words that is, get yourself Times Roman, 12-point type. Put one-inch margins on the page, and you will find that 250 words or two minutes of text will go on a page. This is a guideline. I tell my students this all the time, because they have to present in class. I’ll say, “I’m going to give you a 10-minute presentation, and if you go over 10 minutes, I’m going to cut you off. So, write 1,200 words. Don’t write more, and you’ll get through your talk on time.” It’s a cheat that I’ve used for years. On average, ten lines of Times Roman 12-point type, with one-inch margins, is a minute. Six seconds a line.

Noah Bolmer: It’s a good hack.

Stanley Dubinsky: It’s a hack that works. I would often, when preparing for public talks where I had 20 minutes, I would not practice my talk because it would take too long to [repeat] the talk over and over. I would read them and count lines.

Noah Bolmer: If it works, it works.

Stanley Dubinsky: If it works, it works, and I promise it works.

Noah Bolmer: If I may extend the musician metaphor further in a case of sight reading- on other words, you’re in a deposition, and haven’t had time to prepare exactly what to say. How can you use some of these techniques to answer questions in real time, in a way that is specific, precise, but also understandable in the way that you intend?

Stanley Dubinsky: Yeah. Well, just a caveat here, I haven’t sat in front of a court and been deposed.

Noah Bolmer: Sure. But you’ve been peppered with questions from your students.

Stanley Dubinsky: I answer questions from students all the time, and I think one of – I mean, if there’s a hack there of any kind, the hack is to listen carefully to the question and make sure heard the question completely and clearly before you try to jump into an answer.

Sometimes, what that means is [saying], “Could you say that again?” Or “Could you repeat the question? I didn’t catch this word or that word in your question.” Asking someone to repeat their question is never perceived to be offensive. At least I’ve never found that to be the case. If anything, asking someone to repeat their question so you could, number one, you can make sure you heard it correctly and number two, give yourself another few seconds to figure out what you want to say. That’s also part of it. That’s never badly received.

Noah Bolmer: Sure.

Stanley Dubinsky: If you ask someone to repeat their question so you can clarify exactly what they mean, what it tells them is you’re listening to them carefully. You’re not jumping on their question with whatever pre-positioned answer you might have had. It’s both respectful and useful at the same time. You can’t beat that.

Noah Bolmer: When you talk about respectfulness and etiquette generally, what are the things that make a person seem relatable, but an expert not only in a courtroom setting, but even vis-à-vis your attorney, your trial team? And kind of a “Part B” to that question is, how does that change, or does it change in a telepresence or Zoom situation?

Stanley Dubinsky: First of all, there is a sweet spot where you don’t want to talk to your audience, to your questioner, to your court, to the attorney you’re dealing with. You don’t want to talk to them and sound as though you think they’re stupid. At the same time, you also don’t want to sound stupid. You don’t want to sound like a simpleton, and again, you’re looking for these sweet spots. In terms of job talks, when students of mine go out and audition for a professorship or try to get hired. I’ve always told them, “You go into a job talk and want to impress the audience. At the same time, if you confuse the audience and leave them scratching their heads not knowing what they’ve heard, you’ve lost the audience. If you make them feel like you think they’re idiots you’ve lost them.” One of the things to do is to make sure that you are clear. Don’t overburden your audience with terminology.

Noah Bolmer: Sure.

Stanley Dubinsky: That’s hard to follow. At the same time, if there’s terminology that is useful and meaningful, and you know how to use it, because you’re the expert, use it.

Noah Bolmer: Absolutely.

Stanley Dubinsky: I’m talking about parts of speech. I’m talking about verbs, adjectives, and prepositions. They’re not just words. There are ways to talk about things that betray that you kind of know what you’re talking about. And if you do know what you’re talking about, it’s not hard to sound like an expert. What it’s hard to do more often is to keep from being impenetrable and inscrutable. Right? I mean some people- and it is the case, I mean this is unfortunately the case in academia, and one of the burdens of academia, is that people go in, and think that by sounding more technical, more confounding, and more theoretical, that they’re impressing people. I’m used to going to talks that other people give. Listening carefully to their overly technical, and overly convoluted talks and realizing after 20 minutes that they could have said what they said in about two minutes, and we could all of have had coffee earlier.

Noah Bolmer: To that end, does levity play a role in relatability in a professional situation.

Stanley Dubinsky: In some sense, I mean tempered. Not, let’s all sit around and tell jokes, but lightness, relatability, and being a little humorous is certainly helpful. We’re talking now. We’re enjoying this talk. I’m enjoying talking to you, and hopefully I’m saying things that are relatable and are somewhat on the edge of being entertaining.

Noah Bolmer: They are absolutely.

Stanley Dubinsky: If you can do that without beclowning yourself, which is what’s going to happen if it’s gone too far, That’s absolutely useful. Because that’s part of being relatable. People want to know that you’re human. They want to know that you’re not just curt and rude. People don’t want to feel when they’re being talked to that way. When someone thinks you know more than everyone else in the room, that’s not the person at the party who you go back to talk to after you’ve got another glass of wine. You know that person. You encountered them in the reception. They started talking to you and you know that they’re talking to you just to prove to themselves that everyone else in the room is stupid. You never come back to them. You get your second glass of wine or your second beer and go find someone else to talk to.

Noah Bolmer: Absolutely. Let’s move to a couple more general topics. Why is expert witnessing important? What does it mean to you as a linguist? Why is it important to have someone there to interpret these things?

Stanley Dubinsky: Right? I’m going to give you a two-phased answer to that. One, why is it important to me? Why do I even want to do this or why do I like doing it? Part of my desire or my urge to do this, separate from any fees, because I don’t do it enough that I could earn a living at it.

Noah Bolmer: Sure.

Stanley Dubinsky: I do actually charge for my expertise because I have some expertise and if I’m going to spend my time on something, I’d like to be compensated. More important than that is the challenge of can I take what I know, which is at its foundation technical and theoretical. When I look at a text or hear testimony, do I have ways of rendering what I know about language legible, and understandable to someone who has never taken a linguistics course? Most haven’t. This is a challenge for me. Now, the other side of the coin, why is what I’m doing important to the whole process?

I’ll take the last case that I dealt with as an example. This was a public defender’s office. They found me out, I guess through my department. Maybe somebody said, “Call Dubinsky.” They figured out that I do this stuff. I talked to the public defender, who was a new guy in town. He said, “Look, we’re having a problem. They’ve drafted a new law and they’re interpreting the law in this way, and we think the interpretation is wrong. We have people who are getting caught in this bind because they shouldn’t have to be paying inordinate sums for a deposit on their bail.” There was some sort of arrangement that they make with the bailiff. What was happening was that it was hurting people who should not be sitting in jail based on their interpretation of the law. But the district attorney’s interpretation of it was the other way, and it was keeping people locked up. I walked in and said, “I think I can help. Let me take a look at this.” I unpacked it in ways that I know others would not have been able to do because I know my way around the field. I know where to look for and create examples as a linguistic expert. What I can do well is create parallel examples to what is in the text, that are clearer than what the text has. I can look at the text and say, “See this text. Well, if I change these words into these words over here, now you have a very clear transparent sentence. It doesn’t mean what you think it means.” You can unpack that and that is expertise.

The importance of this, let’s say, is that. In the case of the insurance claims that I’ve dealt with- if one knows law and is trained in law, is that in an insurance policy, if an insurance policy is ambiguous, vague, or indeterminant, then the tie goes to the runner. In other words, the tie goes to the insured, not the insurer. Why is that? The insurer wrote the policy. If they wrote the policy, they had every opportunity to make it clear, and if they didn’t make it clear, I couldn’t rewrite the policy, give it back to them, and say, “Here are my edits of your policy. I signed the policy that you wrote. If you didn’t write the policy well, I’m not going to be made to suffer for your inability to write a clear policy.” In many cases, making it clear that a particular passage is ambiguous is not so easy to do. You have to be able to show, “Well, if you change these words to those words, it will mean this. If you change the [those] words to these words, it will mean that. So, therefore it’s ambiguous.” The virtuosity piece comes into play when you have to, on the fly or not on the fly, but in the course of sitting at your desk, and coming up with examples of how you would unpack it for a non-linguist. That’s where it becomes important.

Noah Bolmer: Very astute. One of the things you briefly mentioned was getting paid. I wanted to ask you if you have any specific terms that you like to have in engagement contracts. Do you like to, for example, take a retainer or do you prefer a project rate? How do you like to bill?

Stanley Dubinsky: I’ve got a rate schedule, and it’s constructed in a fair way. I’ll explain it. If someone wants my time and my expertise, they should at least want it for a day. In other words, if you call me up, get me engaged in your project, want me to do something for you, and hire me for 30 minutes. That’s like a short-term motel. I’m not checking into the motel with you by the hour. I’m not doing that. If we’re going to have a date, we’re going to have a date, and it’ll be at least one day. I do ask for a refundable retainer. If you work for a business, you get paid about half the labor cost. If you work for McDonald’s and get paid $15.00 an hour, McDonald’s has to lay out $30.00 for every hour you work for overhead and everything else that they have to do. If I’m hiring myself out, then I am the proprietor and the employee and I will double my university hourly wage. What I don’t do is, I don’t charge that same rate when I’m traveling. If you want to fly me up to Washington for something, I’m going through airports, and flying on a plane for five hours, you should be paying that, but not the rate that you would pay for testimony, a deposition, or writing an affidavit because while I’m on a plane, I can be doing other work on the plane, which I’m doing, I assure you. That’s the way I frame things for myself. I’m not sure that’s fair, but I think it is. I’ve never received squawks about it. With the public defender’s office, I gave them a pro bono rate because the public defender’s office is not a private firm.

Noah Bolmer: Right.

Stanley Dubinsky: But I shouldn’t be donating my effort to the public defender’s office for nothing, because it diminishes what I am doing, so I cut my rate by fifty percent. If I do anything pro bono, I will do a fifty percent rate without question.

Noah Bolmer: For travel expenses, do they prepay, or do you typically get reimbursed for those?

Stanley Dubinsky: I wouldn’t ask anyone to prepay travel expenses because I’m used to it. My university won’t prepay anything. If I go to a conference, they’ll guarantee me funding, but I have to come home and present them with all the receipts and invoices. In fact, one of the things that the university is careful about is that it will not pay for an air ticket until you’ve proven that you’ve taken the flight. There’s a lot of shenanigans that can occur when people buy a ticket but do not take the flight and get credit for it. They’re careful about it and don’t mind that. In a sense, one of the things about travel and travel expenses is that you don’t know what you’re going to encounter.

Noah Bolmer: You get your engagement letter. You’ve signed and agreed on a rate. How do you get off on the right foot with an attorney? What are the aspects of a good attorney, consultant, or expert witness relationship?

Stanley Dubinsky: I think you want to get to know each other before you start to do things. You don’t want somebody to send you something, then you deliver a response. First of all, you don’t know what they want. You need to learn what they need from you before you can even begin to do it. If somebody were to say to you, “This insurance policy is somehow deficient or we’re arguing about this issue.” I’d want to have a conversation with the person I was trying to help to know what had come before and what they think the pitfalls are. I need to know what they expect the counters to be, because obviously they’re more familiar with the case than I am. By the time they come to me, or an expert witness, they’ve already been doing some things and gotten to the point where they realize we need to get an expert witness in here to help us. In any case I’ve ever come into has never been in a vacuum. It’s never been the case that, “We’re going to go to court and the first thing we’re going to do is get our expert witnesses in line.” That doesn’t ordinarily happen. Maybe in some cases where there’s some chemical process or drug case you can line up your expertise. In the case of the kind of expertise that I bring to a court case, they have found themselves in a corner in a little bit of a jam and are searching and saying, “If we have a linguistics expert witness, we could make our case stronger.”

Noah Bolmer: While you have not been to testimony, do you feel that you have had sufficient time to put together the affidavit, the demonstrative, or whatever it is that the attorney needs? That they come to you with sufficient information and time. Are you able to do your job in the schedule that they set?

Stanley Dubinsky: Pretty much. In any case where there’s a document involved, it takes a while for you to get the background. It takes a little bit of time to read the document and focus your mind on what the issue is. Then once you’ve done that, you’ve got to go out and say, “How am I going to unpack this linguistic puzzle, and solve it?” And very often what that involves is going to some resources, like published papers- because I’m not the only expert in the world on linguistics. There are many other people who came before me, and will come after me, who know as much about language as I do, and sometimes more. Part of my job is to go out and to find citation-worthy evidence and arguments that have been made by others. Not necessarily on this particular point, but arguments about the same sort of issue or argument, and you can find these. I’m not going to find my citation-worthy evidence in court cases or legal documents. I’m going to find it by looking online at linguistic explanation[s] sometimes done for courses, sometimes in textbooks, sometimes in blogs, and published papers on things.

I recently had an experience where I had to go into the use of the word, “however”. Now, “however” has two uses. Sometimes it’s followed by a comma, sometimes it’s not. And sometimes the fact of whether they put in punctuation or not belies what they meant. You can say, “However you do the job, make sure you do it well.” Then, there is “However, I don’t think you’re going to do it well.” There are two uses of “however” in those two sentences. Right? They mean different things. So, yes, there have been blog posts and articles written about those different interpretations. I know my way around and can find those. I can glue them to the table and insert them into an affidavit, which is going to be court-worthy.

Noah Bolmer: Absolutely fascinating stuff. Before we wrap up, do you have any last advice for expert witnesses or for attorneys working with expert witnesses, and newer expert witnesses in particular?

Stanley Dubinsky: There are two audiences. One is the attorneys, and the other is the experts. What I would say to attorneys is, I understand that legal minds are legal minds, and they’re sharp. You don’t become an attorney unless you are good with language. You cannot do it. At the same time, you’re trained to be good with language, you’re not trained to unpack and analyze language. I would use this analogy. Everyone knows what time it is. Everyone who has a digital watch with buttons, except for me, knows how to reset, change the settings, and adjust it for Daylight Saving Time. I don’t. So, I beg off on that one. My watch is set to the same time throughout the year; I adjust it in my head. The point is that everyone who owns a watch, a TV remote, or a clock knows how to operate it. When it comes to language, as a linguist, I can open up the back of the watch, show you the springs, and you won’t know how- what it’s doing, but I can show you what it’s doing. Think of the language expert as the person who can use language, play with language, expert in creating language. The linguist is the person who is the watchmaker. The person who can open up the back of the device, and tell you why it’s not working, how it needs to work, or what the confusion stems from. Right? So, I would ask lawyers who might be listening to this not to think less of themselves or that they have a language problem, but to acknowledge that sometimes you walk into a language conundrum, which needs to be analyzed properly. That’s when you find yourself in a kind of cul-de-sac, that’s the time that you want a person who’s an expert. It’s no shame or embarrassment to acknowledge, “I need somebody who can analyze this.” That’s what the linguist can do for you.

To answer the second part of your question, as far as expert witnesses, number one is that you need to rely on your knowledge. You can think of being an expert witness as a challenge and a learning opportunity. I look at every case I’ve ever taken has been a learning opportunity and a challenge. Can I do this? Do I have the chops to do this properly? Can I make it work really well? As an expert witness, if you successfully produce an affidavit, sit in court and give testimony, or if you give consultation to a lawyer, that is worthy and that then

they can use and win with, then that is testimony to your abilities/ And you want to revel in that a little bit. You want to say, “Look what I can do. I can win court cases.” There’s a big difference between having the expertise and the chops to help somebody win a court case and having the expertise to convince your students that you’re right. Your students will be convinced you’re right because their “A” depends on it.

Noah Bolmer: Right.

Stanley Dubinsky: The court does not care about getting a grade from you, and you have to be better than that.

Noah Bolmer: Sage advice. Professor Dubinsky, thank you for joining me today.

Stanley Dubinsky: You’re welcome. It was a pleasure to be here.

Noah Bolmer: And thank you to our listeners for joining us for another episode of Engaging Experts. Cheers.

Stanley Dubinsky, Co-Principal of ConflictAnalytiX, LLC and Professor of Linguistics at the University of South Carolina

Stanley Dubinsky, is the Co-Principal of ConflictAnalytiX, LLC, and Professor of Linguistics at the University of South Carolina. Through analyzing the meaning and structure of texts, he helps guide attorneys through the complexities arising from structured grammar and normative usages of language. Professor Dubinsky holds a PhD in Linguistics from Cornell.