In this episode…

Writing expert reports is distinct from academic writing, according to Dr. Anna Kirkland. While scholarly journals assume an audience is familiar with the topic, expert witness reports must be clear, concise, and free from jargon.

Check out the entire episode for our discussion on depositions vs. peer review, the meaning of expertise, and the boundaries of your niche.

 

Episode Transcript:

Note:   Transcript has been lightly edited for clarity

Host:   Noah Bolmer, Round Table Group

Guest: Anna Kirkland, Professor of Women’s and Gender Studies at the University of Michigan

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and  I’m excited to welcome Professor Anna Kirkland to the show. Professor Kirkland is the Kim Lane Shepley Collegiate professor of Women’s and Gender Studies at the University of Michigan. She is a published author, and her research focuses on the relationship between health and law, health insurance coverage for infertility, and the politics of health. Professor Kirkland holds a JD and a Ph D in jurisprudence and social policy from UC Berkeley. Professor Kirkland, thank you for joining me on Engaging Experts.

Anna Kirkland: Thanks so much for having me.

Noah Bolmer: You’ve made a career in academia for over 20 years. Tell me about your recent involvement in expert witnessing. How did you get there?

Anna Kirkland: I’ve only been an expert witness twice, separated in time by a number of years and on totally different topics. I was a newbie both times for different reasons, and I’m not totally sure how anyone found me. The first time, some years ago, it seemed like they wanted a Michigan expert to talk about the Michigan Same Sex Marriage litigation. There were some elements that they wanted an expert for going to the state flagship. They were looking for somebody more local, and that I was new was not an impediment. In the second case, I happened to have some original research that was relevant in the area of research, and data that’s tricky to get, so I can see that I was the person that had this research that they needed.

Noah Bolmer: I don’t know about you, but when I went to law school, we learned about expert witnesses academically but not what it’s like to be one. How did your education match your experience?

Anna Kirkland: I’m interested in the topic of expertise as a researcher. Who gets to be an expert? What does it look like? To be in this position was fascinating and somewhat intimidating because, as we can explore, different types of expertise from what you develop in academia and then what. It is being a witness. It was a multi-layered experience. You’re trying to be a thing that you’ve reflected on and critiqued. Then there’s what did I write 10 years ago that might come back, so there’s a lot to process.

Noah Bolmer: As an academic, tell me what it means to you to be an expert.

Anna Kirkland: In academia, the main way we go about that is by producing original research in an area that is finely focused. When we think about our own expertise, we’re getting in the weeds. Am I one of the top people in this particular area? To anyone else, that would sound like a small area. We think of our expertise as fairly narrowly focused. What research did we do ourselves, produce, and touch? For expert witnessing, one thing I learned was that my expertise was much broader than that. It included things that I would feel comfortable lecturing to undergraduates and teaching about. [Many] times, we’re reading and teaching the secondary literature that we know well, but we don’t think of that as our expertise. I know about what the conclusions are in this field. [Many] of us know about the research conclusions in multiple fields that we don’t consider ourselves to be experts in. That was a big thing that I learned as sort of where the boundaries are drawn, of where your expertise is. It varies by academic field, and that seemed different to the attorneys that I spoke with. They thought I was an expert in more things than I would have claimed to be an expert in.

Noah Bolmer: Sure. Do you think that it is important for potential expert witnesses to have a well-defined niche?

Anna Kirkland: I thought about that coming into this. I was thinking about if you’re in a well-defined disciplinary field and you have- I’ve been running a lab studying this particular thing for decades. That’s great. There’s going to be a clear, precise boundary around that. Attorneys could think about interdisciplinary scholars as maybe having a range that they would need, like in the first case that I worked on. They needed someone who could talk about the application of the legal standard of strict scrutiny, how that had evolved, and how that matched political outcomes. What sort of representation and political wins had different groups, like African Americans and women, achieve at the time historically, that they got a heightened level of scrutiny applied and equal protection. It was an interdisciplinary legal studies question. I was like, you’re asking me to talk about political science and what we know from studies of ballot initiative outcomes. At the same time, you need me to understand where the law was at a particular time and blend that story together. I went from thinking, “I’m not sure I’m the right person for this.” They had fancier experts in other parts of the national litigation going on. Then I thought, you need a Michigan person. You need someone who can pull all this together. I can do this. Interdisciplinary scholars- people in- I’m in women’s and gender studies, but there [are many] different, newer, and more interdisciplinary fields where people- if someone is looking for an expert with a bit of range or in something new, that could be a great place to look.

Noah Bolmer: That’s interesting because you are in quite a dynamic field, or at least the political application is quite dynamic right now. How do you stay abreast of everything? How do you not only become an expert but maintain that expertise in the changing political environment?

Anna Kirkland: That was something I’ve been confronting recently because I feel overwhelmed at the moment trying to keep up with things. Over the years, there have been ebbs and flows. I finished a book on healthcare civil rights. I’ve been focused on that. My book on the Vaccine Injury Compensation Court came out in 2016, so I’m a bit behind in that. Now, I’m catching up on a lot of research. There are going to be a lot of things that are coming down the pike with that. It’s always a matter of trying to read what’s going on. Is what I might be able to bring going to be helpful or necessary? Is there a bit of a lull in scholarship? Sometimes things move slower, and there’s an opening, so I try to be there when I think there’s going to be an opening and anticipate that and maybe let another area of my expertise go into the background. Then sometimes a reporter will call me, and then I accept the interview, put it off for a few hours, and then frantically research it. In the meantime, it is hard to try and keep up with all the things that we try to keep up with, and sometimes you have to prioritize because it’s too much.

Noah Bolmer: With a lot of academic expertise, as you say, there’s a lot of publication. There’s writing books. There’s publishing in journals. [Much] of that is paywall and not easily searchable. [For] attorneys and somebody with a JD, like yourself, what are the strategies that attorneys should be doing to locate people in these niche, nebulous fields, when a lot of their work isn’t immediately available?

Anna Kirkland: Oh, that’s a great question. It’s a shame that a lot of our work is behind paywalls. If you find a person and you would like their scholarship, anyone can just e-mail us and ask us to send them their copies of our papers, and we will do that. We aren’t prohibited by our copyright agreements from sharing our own copies with anyone who asks.

Noah Bolmer: Oh, interesting. I didn’t know that.

Anna Kirkland: We can. As an individual, I can send the PDF if someone wants to read my paper; I could certainly do that. That’s one way, but you have to have found that person already. Then you’re in faculty web pages or Google Scholar, and you can’t get behind the paywall. Some people will have personal websites, or you can tell enough from the faculty website conference proceedings. Conference bulletins are often published. The American Political Science Association often publishes who gave a talk, and the title of the talk was. Sometimes, perusing those could be a good way to find people. Then, Google, and then e-mail the person. That’s tedious.

Noah Bolmer: Let’s go back to those first phone calls. Walk me through a phone call with an engaging attorney. What are the things that they ask? How do they vet you, and how do you vet them to decide whether or not it’s an engagement that you want to accept?

Anna Kirkland: I start with an e-mail. Would you be interested in this? It’s one of the more interesting emails you’re going to get. This is different. I always would want to know what exactly you want from me, and can I give this? Is this something I can do? Does my expertise match? What do you want and when do you want it? We should talk a little bit about academic scheduling versus attorney scheduling. Sometimes, the academic work deadline doesn’t match well with what attorneys need. The main conversation would be what exactly do you need and can I conceivably do this. Am I a good fit for this, and what’s your deadline?

Noah Bolmer: “Counselor, you’ve opened the door to scheduling.” Let’s talk about scheduling. Obviously, as an academic, you’ve got courses, you’ve got research, and you’ve got publication. You’ve got a lot of things going on. A lot of plates spinning, and then somebody calls you and says, “I need- I don’t know how many hours. It might go to a deposition. It might be settled tomorrow. I don’t know.” How do you handle accepting an engagement and making sure that you have enough time to give that engagement everything that it requires?

Anna Kirkland: Yeah, both times, it was a significant challenge. When I was thinking about doing this, I [thought] back to my schedule, and what happened is I [took] vacation time and work[ed] through holidays. I had otherwise planned to relax. Making time at night. Forcing the time into my schedule where I had it, and I was lucky that I had some breaks. As an academic, I had the winter break for one of these, which I might have otherwise spent relaxing, [but] I spent on this. One difference in our jobs is that we’re [constantly] doing a lot of different stuff all the time, but the actual deadlines are not drop-dead. It’s not like we have to turn this in to the judge at this time. The journal would like my review on this date, but anytime two weeks later is also fine. Academics have this flexible [schedule]. That’s the deadline, but there are not that many deadlines for us that are monitored as much as attorneys. We’re always managing the ebb and flow. Something attorneys should be aware of is that sometimes academics have fairly flexible chunks of time, but there are times when we’ve got one hundred papers to grade or the book deadline from the publisher is there, or we’re swamped with other things. It is harder to manage that.

Noah Bolmer: You’ve done an expert witness report. Tell me about how that went. Did the attorney advise you about format, or did they give you some kind of a template?

Anna Kirkland: I didn’t get a template. They explained what it should look like, and then I worked up a draft. Then, they gave some feedback. I’ve done two, and looking back on one, they wanted it in numbered paragraphs and discreetly written. The other one was sort of a report. I just wrote it in my voice and format.

Noah Bolmer: How different is academic writing versus writing an expert report? Is it any different?

Anna Kirkland: When I was writing the report, I was trying to be flatter and be more descriptive. Nothing fancy. The tone was of matter of fact, whereas in sometimes in our scholarship, we are a little polemical or we’re making an argument or we’re trying to make it more interesting. I did get the message that that’s not what we want here. Go through the presentation of your opinion. One contrast is in our academic work. We don’t necessarily think of ourselves as first and foremost, as giving our opinion. We’re doing a whole bunch of other things, and it’s not just giving your opinion to the judge. It was a little flatter with a little bit of the voice taken out.

Noah Bolmer: It has to be tailored for laypersons, right?

Anna Kirkland:  No flowery sentences. No jargon. Just opinion. Straightforward opinions. Nothing inflammatory.

Noah Bolmer: Absolutely. You have not undergone the deposition process or the trial process. What is your impression of going to a deposition and being questioned for hours on end? Do you feel that you would be ready should that occur? Have your engaging attorneys started preparing you for that?

Anna Kirkland: I was deposed once.

Noah Bolmer: Oh, I’m sorry.

Anna Kirkland: Yep, I did go through a few hours of deposition in the second case. I was a witness, but it didn’t go any further than that.

Noah Bolmer: How did that deposition go?

Anna Kirkland: It was interesting. Academics are used to being challenged and having to defend our work, except it happens in the peer review process where you send it off in paper and then three months later you get some comments. Then you have a few weeks to respond. Everything moves slowly. Having to answer a series of specific questions. It’s not how we roll.

Noah Bolmer: How does that process compare with, say, the peer review process?

Anna Kirkland: The peer review process, where often the person accepts our account of things, has questions, and has some doubts. Sometimes, peer review can be aggressive and unpleasant, but generally, they’re thinking, I would like to see more discussion of this. You’re trying to figure out how to please them and work with what the peer reviewer wants without making your paper seem too weird in the end or having too many voices in it. At its best, it’s very collaborative. It’s not necessarily adversarial. It’s point by point.

Noah Bolmer: Oh, that’s interesting.

Anna Kirkland: What helped me in the deposition was to keep focused on the report. Narrow the focus to the exact conclusions, observations, and data that I had presented in the report. I knew that we had done a good job in our study and our research. I knew that data better than anyone. Trying to stay focused on that. Now, the opposing attorney, who was good, did pull out a sentence from one of my papers that I had published 10 years ago, “Dr. Kirkland, do you stand by this sentence?” I was like, “Let me pause, look it up, and see what you found.” The attorneys had coached me not to respond quickly. To consult the report and think it through, that’s what I did. I went back and said, “Let me take a minute and look it up to make sure I know exactly what you’re referring to.” It was fine, but I wasn’t expecting that.

Noah Bolmer: You say the peer review process isn’t necessarily as adversarial, which is interesting. Do they ever try and impeach you during the peer review process as they would during something like a deposition or Daubert hearing? Do they ever try and impeach your credibility as an expert?

Anna Kirkland: Not really, no.

Noah Bolmer: Let’s talk about trials. You’ve done deposition. You haven’t been in a jury trial, and a lot of people haven’t because so many are not getting to the trial process for one reason or another, usually because they go towards settlement. Do you feel that you would be properly prepared for a jury trial? Have you been given any preparation techniques or anything like that for a jury trial?

Anna Kirkland: No, and I would definitely need some preparation. One thing I’ll say, though, is that undergraduate teaching is a good way to explain yourself to people relatively clearly. Folks should remember we get anonymous reviews from a bunch of 18 and 20-year-olds every semester.

Noah Bolmer: Right.

Anna Kirkland: You want to talk about brutal reviews. Some of those can be brutal. People who teach undergraduates get continual feedback from them about whether you’re clear enough and your explanations are good. If you talk too much, not enough, or aren’t clear enough. That is one thing with professors: we have been through the wringer. One strength one might bring is the ability to craft an explanation that a jury might be able to understand because I had to do it to a bunch of 18-year-olds who don’t always do the reading.

Noah Bolmer: Absolutely. You have done a deposition; I get to ask you one of my favorite questions, which is, do you have any pre-deposition or pre-trial kind of ritual, something that you do to get yourself ready to go? I’ve had people who say, “I don’t need anything.” People who say, “I need a huge breakfast and a nap.” I have people who meditate and everything in between. Is there anything that gets you ready to go into that sort of tense situation?

Anna Kirkland: I’ll tell you I drink some coffee and banish the family from the basement because this was during COVID. I had other people in the house, and I had to be able to concentrate generally in COVID. I had set up a whole alternate workstation in my basement. I was thinking, how will I be able to do this in a way that I can focus?

Noah Bolmer: Sure.

Anna Kirkland: Besides reviewing all my materials and making sure I was adequately caffeinated, I don’t.

Noah Bolmer: Adequate caffeination is important.

Anna Kirkland: Which might not have totally helped. I probably needed to come down rather than up.

Noah Bolmer: Absolutely. Before we wrap up, do you have any final advice for academic professionals who are interested in getting into expert witnessing or attorneys who are seeking academic professionals as expert witnesses?

Anna Kirkland: I’ve hit some of the main things, which is to think about your expertise differently and, for attorneys, to coach professors, knowing that they probably think about their expertise differently than the attorney does. People may have different levels of confidence where they are in the academic hierarchy, and going down a bit in the academic hierarchy will get you a great expert witness, but that person may not be quite used to having that bully pulpit. That may be the person who has the expertise that you need.

Noah Bolmer: Sage advice, Professor Kirkland. Thank you for joining me here today.

Anna Kirkland: Thanks.

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

Anna Kirkland, JD, PhD, Professor of Women’s and Gender Studies, University of Michigan

Our guest, Professor Anna Kirkland, is the Kim Lane Scheppele Collegiate Professor of Women’s and Gender Studies at the University of Michigan. She is a published author with research focusing on the relationship between health and law, health insurance coverage for infertility, and the politics of health. Professor Kirkland holds a JD and a PhD in Jurisprudence and Social Policy.