In this episode 

Dr. Berkowitz uses a novel technique to lighten the mood during depositions, stating, “I find that injecting some humor when you can as an expert always helps when you are getting started.” She notes, “It just makes light of things, and it helps me relax.”

Additional topics include mentoring, avoiding chargebacks, and stalling. When Dr. Berkowitz needs a moment to collect her thoughts, she advises using these phrases,  “Could you repeat that again?” or  “I’m sorry, I don’t understand what you mean. Could you ask that again?” She continues, ” . . . I quickly learned that those were tools I could use.”

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. Alice Berkowitz, Clinical and Forensic Psychologist

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to welcome Dr. Alice Berkowitz. She is a clinical and forensic psychologist with numerous specialties, including. mental alienation and runs Families Reunited, an intensive reunification program. Additionally, Dr. Berkowitz is a member of the editorial board for the Journal of Psychology and Clinical Psychiatry. She has a robust nationwide consulting practice and is a sought-after expert witness. Dr. Berkowitz holds a Ph.D. from USC. Dr. Berkowitz, thank you for joining me here today on Discussions at the Round Table.

Dr. Alice Berkowitz: I am happy to be here, Noah.

Noah Bolmer: Let’s jump into it. You have built a significant practice spanning decades in psychology and advocacy. How did you get involved in expert witnessing?

Dr. Alice Berkowitz: It is funny. I think even before I finished my doctorate, I was licensed here at an LMFT. I was working with an attorney in family law, who asked me to do a custody evaluation. So, from about 1985-1986 when I became licensed as a psychologist, I did hundreds of custody evaluations and I have been an expert witness, probably 1,500 times, most on neuropsychologists. I do many traumatic brain injury cases that have to do with cognitive decline, sexual harassment cases, and stalking cases, it just depends. But much of it involves parental alienation and custody as well. I love my clinical practice, but there was something fun about being an expert. The law always interested me seeing how that works, and, learning as much as I could to be the best expert I could be.

Noah Bolmer: When you first got started, were you aware of expert witnessing as an income stream as something that people do?

Dr. Alice Berkowitz: When I was doing my doctorate. I worked for county mental health in the men’s jail with mentally disordered sex offenders. I was very young, had long blonde hair, and was not scared.  I knew being an expert was a field, but I always thought of myself as being more oriented to just being a psychotherapist. When this came up, it took off. Early on, I got some of the most severe parental alienation cases as a custody evaluator, and I started getting more and more of those. I learned a lot about that, and it has been my expertise for many years.

Noah Bolmer: When you started, you were aware of expert witnesses. Did you go into it feeling prepared your first time? Did the attorney reach out to you? Did they help you understand what was expected of you in court or how to write the report? Did you feel adequately prepared that first time? How has that changed throughout?

Dr. Alice Berkowitz: Did I feel adequately prepared? No, the first time I appeared as an expert was after a custody evaluation that I did. I was on the stand in front of two well-known attorneys who went after me like crazy which, no one told me that was going to happen. I was hired by both; I was young, and it was scary. At lunchtime, they both said to me, “Let’s go to lunch.” And I thought “I do not want to go to lunch with them.  I do not want to see either of them again.” I was injured, but I learned that was part of being an expert. Litigation is a game. The more confident you are in what you are doing, and the more research and background information you have to back up your findings, the better off you are. I learned how to not be thrown off. In other words, when you are an expert, and an attorney asks you a question and you are unsure, you could say, “Could you repeat that?” or “I’m sorry, I do not understand what you mean. Could you ask that again?” I learned those were tools I could use. I knew how to prepare. I knew how to research to back up my findings. I did not know early on the difference between Daubert and Frye states because I was in California, and California is a Frye state. A good friend of mine who is out of Michigan taught me the difference between Daubert and Frye. I learned the difference because in California you did not have to have all this research to back you. It was sort of what people were doing in your field, as opposed to having every research document ever filed in the case and you are testifying on. I think they like to intimidate young and older experts. A friend of mine who is a cardiologist said to me, “I am scared to do this.” He is around 50 years old. I said, “What are you scared of? You are the top cardiologist at Cedars.” He said, “I do not know what I would say.” I said, “You would learn quickly.” He said, “Would you teach me?” I said, “Sure. I have trained many people to be an expert.” I learned that you cannot take it that seriously. Did you present yourself well and know what you were talking about? There is so much that can challenge you. I have done several military cases. In 2014, I did a case for the Marines on Parris Island. It was a PTSD case. When you work with the Marines, it is a marine jury, a marine judge, and marine attorneys. Sometimes they are Naval attorneys on the other side because of the Navy. One of the testing services we used then was called Well, which is still used but has changed. One of the prosecutors said to me, “I see here that [so and so] did not renew his license.” I looked at her. Then she said, “Doesn’t make take the credibility out of your testing?” I said, “No. First, he probably forgot to pay for his license. He is 80-something. If you want to try and have my testimony thrown out. You must pick something better.” The judge and the jury laughed. I find that injecting some humor when you can as an expert always helps when you are getting started.

Noah Bolmer: You got a little shaken and I have heard that many times. Was it more because of what they were asking in your field that you were unsure of? If you were an expert in a specific matter or did, they keep rephrasing or reframing the question to throw you off? Were they trying to impeach you as a witness? Were they trying to say this person is not qualified as an expert or something to that effect? Which of those is worse and how do you deal with it?

Dr. Alice Berkowitz: I think the issue is back then, neither one of them wanted to impeach me as a witness. Maybe one did, but they were both very aggressive litigators, so they were asking me things and I knew these people very well. But given that they were being so aggressive with me, that is what kind of threw me off. Attorneys can be extremely aggressive. It was not that I was afraid, or that I did not know what I was talking about. But when you hear people kind of use aggressive language and they are objecting and fighting in the courtroom, and they are like, “Well, Dr. Berkowitz, since you say this, didn’t you say this too?” There was a lot of aggression and that is what threw me off the most. I have when people have attempted to impeach my testimony, I kind of laugh that off because what they go for are ridiculous things. Like [in one case], “Didn’t you know, he had not paid his licensing fees?” I mean, it does not make him any more reliable or valid source. I have had people try to impeach me with “How much did you get paid on this case? Don’t you think that was a lot? Too much?” No. The best one was, “Do you think you deserve this?”

Noah Bolmer: I have not heard that come up before.

Dr. Alice Berkowitz: I said yes. If you do not get thrown off and you know what they are doing, you could joke about it. Recently, I was deposed for a case with USC. It was a 7-hour deposition, and the case is going to trial next week. The attorney for USC was funny. She kept asking me every question on the MPI-2. She did not know what they meant, and I looked at her and said, “Are you going to go through every scale on the MPI-2 when I did many other tests because, if you are, we are going to be here for 10 hours.” It made everyone laugh. She backed off a little, and the attorneys that hired me thought that was hysterical. It just makes light of things, and it helps me relax. If I can make humor, not nasty humor, but humor to lighten the mood a little.

Noah Bolmer: You are exposing the situation for how ridiculous it might be.

Dr. Alice Berkowitz: Yeah, like every single scale on the MPI-2 when you have 8 different tests. It was interesting. There but there are times when someone will try to impeach me. “Well, did you see this person at all?” I am here as an objective expert. My job was not to see this person. My job is to talk about it as an expert on the issue at hand. Whether it is domestic violence or whatever. I am not going to speak about the individuals because I did not interview them. There has been a big change over the last 10-15 years from being able to interview people and then be their expert to being a general expert or a subject expert and I do not like that much, but they are trying to keep things as objective as possible.

Noah Bolmer: One of the things that you mentioned before is that you have been helping mentor people. You have shown them the ropes. Tell me about that. What are the things that you like to inculcate a new expert witness with so that they do not make any obvious mistakes or go into some of the situations that you found yourself in before and wish that you had known something that you know now?

Dr. Alice Berkowitz: I have had many psychological systems over the years, and I have a lot of licensed people that want to be experts and between myself and attorneys I work with, we set up like a moot court where they are being examined now, I will teach them what they have to look at, the books they have to read, and how they have to present themselves. They will go through everything over many sessions to get them ready and to make sure they know what they need to cover. Then we do kind of a moot court so they get a flavor of what the worst and the best can be.

Noah Bolmer: When you are preparing for something like the cross-examinations you have been speaking about, are there some specific strategies that you find helpful? Humor is a great one. Are there other strategies that you employ to keep your cool? These depositions can go 8 hours to 10 hours. I have heard from other experts that one of the tactics that the opposing counsel will use is to starve you, so you start getting cranky and hungry. They said, “I eat a big breakfast before I do a deposition.” Do you have any specific strategies that you have found helpful across different types of cases?

Dr. Alice Berkowitz: I have been in depositions all over the country. No one has tried to starve me. We all got lunch breaks. Depositions usually go for seven hours or longer, depending on the length of the lunch break. To prepare myself for cross-examination I write out questions that might be part of the cross-examination and make sure I can answer them. If I am having an issue. I will go back to what I think is valuable. “Can you please repeat your question?” “I am sorry, I do not understand. Can you be a little clearer?” or “I’m sorry, I need to take a bathroom break.” If it is getting to the point where I need to amend it alone and those things work well, I think the biggest issue is not to be afraid. There is nothing that is going to happen to you. You may feel like a fool initially, but usually not. There is respect for witnesses unless they are unethical or incompetent. You are going to see judges respect witnesses. The largest thing is to not be scared and know your subject area.

Noah Bolmer: On the topic of knowing your subject area, what does it mean to you to remain an expert in your field? Your field is vast, and you have numerous specialties, how do you know what you are an expert on for a specific case? It must be difficult when you receive a call to decide whether this case fits within your specialty or your area.

Dr. Alice Berkowitz: Well, once I know if this fits within my area, I stay up on all the current research and case law. I mean, I have W law that I’m on all the time, so I can look at case law and all of the current research I get every journal that’s imaginable I work on a lot of research projects and so I have it at hand. And so it doesn’t take that long. You know, the American Psychological Association has journals you could get into it anytime. And I belong to something called the parental alienation study group that that really has in anything. That’s on parental alienation, it’s going to have the latest, just literature on there, so it’s actually pretty easy. What’s a little more difficult is when I’m testifying as a neuropsychologist and an expert witness in traumatic brain injuries. Sometimes I have to look over things. That are more recent. I checked the recent work that’s been done. I’ll take a course when you’ve done this for so long. Basics are really there.

Noah Bolmer: Do you find it helpful, and would you recommend that newer experts find a specific niche and become an expert in that niche? Is it better to remain a generalist?

Dr. Alice Berkowitz: No, I think they should find an easier specialty today. Once you find an issue, you can broaden it, but you need to be well-known in that niche. You have got to feel very confident in that niche before you take on other cases. I was a neuropsychologist, and I started doing custody cases, alienation cases, parenting cases, and domestic violence cases. From there, I could branch out, but I developed my skills in family and dependency court. Now, I testify in civil court, federal court, and arbitration military court. Once you get the skills down, then you can broaden your specialties. I think it is hard to learn all the information that it is better to have a niche that you start in.

Noah Bolmer: Do you find that once you have a niche and you are hired it leads to more work? Does that work as a form of advertising?

Dr. Alice Berkowitz: Yes, I get at least ten e-mails every week for different cases all over the country, besides the telephone calls we get. I cannot take on everything that comes in, so I refer many of these requests to others, but yes, since I started this, I am shocked at how much comes in. You must stay centered on yourself. If I am not working out and not doing things for myself, I am not as good of an expert. I must feel centered and strong. Then, I can feel more on top of the literature and the subject area. I think when you feel more comfortable, you can talk off the top of your head at times.

Noah Bolmer: These days one of the main factors is time. You can only take so many cases, but earlier in your career when you have enough time to take the cases that come at you what determines whether you decide to take a case? How did you vet cases then and how do you vet them now? How do you decide that you are the correct expert? Is it a financial decision? Is it a timing decision? What are the main factors?

Dr. Alice Berkowitz: It is partially a financial decision because it takes much more, but more than that is whether I can answer the questions being asked and if it fits into my schedule. What is the reputation of the attorneys? What has been out there in the press? I have done many celebrity cases, and I must be careful of those because I want to know what is there in the news. I want to know what the real issues are. If it is something that I do not ethically agree with, I never take it. I would be a hired gun. I do not believe in that. If they hire me to do something, I usually say, “Look, I am willing to come in as a consultant first, look over the materials, and then if I think I can help you. I will do that.” I do not want them to be at a loss, but also if I do not agree with what they are doing ethically or even morally, I will not take the case.

Noah Bolmer: Have you found yourself in a position where you have taken a case only to find an attorney has been pushy after a fashion and tried to get you to say something or tried to get you to fudge the numbers in your client’s favor as an expert? How do you deal with that I have?

Dr. Alice Berkowitz: I just say no, I am not comfortable with this. If you want to find another expert, be my guest. But if I am not comfortable with what they are saying, I am not going to be pushed in any direction. I think that is where many experts get themselves in trouble. They will not let themselves get pushed beyond what their comfort zone is, and then they will say things that they do not believe in. They are usually scared at that point, and they will say, “Oh, my God, this person hired me. What are they going to do?” I think you have to stay close to your own heart, ethics, and morals when you are taking on any of these cases because there are so many hired guns that will say anything.

Noah Bolmer: Does the winnability of a case factor into whether you take it or continue it? In other words, I understand the ethical side obviously, but is it important that your side has a decent chance of prevailing, or is it more that you can give your honest opinion and let the chips be where they were?

Dr. Alice Berkowitz: If I agree with the side trying to hire me, then I want that side to prevail, so it is a big piece of it to know I am a part of that. If I do not agree I do not take it. Once you get a case and start to read everything, you have dialogues with the attorney to get a sense of who they are and what is going on behind the scenes. I take on many difficult cases. Some are emotional, especially allegation and domestic violence cases. I think when you feel like you are, or at least when I feel like I am part of a team. I feel more comfortable if it is for a good cause. Sometimes you win, sometimes you do not. I have rarely been an expert where they have not found in our side’s favor. It has been rare, and I feel lucky about that.

Noah Bolmer: Do you usually stay abreast of the case or know where it is in the process? Do you know if your side prevailed? These actions can go on for a long time after you are done. I have heard different things from different experts. Some have said, “No, I do not know what happened after I left.” Others say, “I am deeply invested in every case.”

Dr. Alice Berkowitz: I am deeply invested in every case, and I do stay in touch with the attorneys. I want to know the outcome. It becomes a bond, and you get more referrals from that attorney. I like to follow it because once I am invested, I do not think I can be a good expert if you are not invested.

Noah Bolmer: One thing I would like to pivot back to that you touched on briefly was report writing. I have heard different things on this matter too. Do you typically get a skeleton of a report that you are filling in, or are you typically writing reports whole cloth?

Dr. Alice Berkowitz: No, some parts are a little bit of a skeleton in terms of the introductions and the documents you reviewed. You fill in what the complaint was or what the case is. Now, I write the reports from the beginning. It depends if it is in a family or civil court. it is going to be very different. Luckily, I can write and type at the same time, so it is an easy, but long process. Custody evaluations can take between 30 to 40 hours to write them. Other expert witness reports, especially IMEs, take maybe 10-15 hours at the most, depending on their length. I write them from there. I analyze the testing data myself. I have a well-trained assistant, who has not finished his doctorate, who helps with certain things.

Noah Bolmer: I have heard from some experts that attorneys can sometimes use the skeleton as a tool to fill in things that they are not experts on. I was just wondering if that was something that you have seen. Ultimately, that makes up part of the record, right? I assume that those reports can serve as advertising. What are the main ways people find you? Referrals, but what before you were well-known as an expert witness? What are the main ways experts can get their name out there?

Dr. Alice Berkowitz: Juris Pro is a group I belong. In other cases, I think you are transitioning from custody alone to other things, you need to have an organization like Juris Pro, or I am part of the American College of Forensic Examiners. Those are good things to be involved with. I think also speaking for a new expert, once they have the knowledge and know what they want to go into they can reach out, and there are groups like Provisors, but they are more for attorneys.

Noah Bolmer: So, industry groups are a good path.

Dr. Alice Berkowitz: Absolutely.

Noah Bolmer: One final thing before I let you go. When you wrap up a case how do you bill for a project? Do you bill for hours? Do you take a retainer? What do you recommend is the best way to get paid?

Dr. Alice Berkowitz: I initially take a retainer and then we bill hourly based on every 15 minutes of work. So, if it goes for 35 or 45 minutes it gets billed out. We bill monthly and it always goes to the attorney. They get us paid. There have not been issues with that. Especially, when it goes through an attorney.

Noah Bolmer: Do you have any advice for newer expert witnesses or for attorneys who are working with newer expert witnesses?

Dr. Alice Berkowitz: If it is a great field and it is fun, and if you go into it looking at it that way, it is going to be much better. I think you must trust your gut when you meet with an attorney or an attorney when they meet with you, whether they feel comfortable with each other. I think you need to be certain that the case you are taking on is something you can stand behind.

Dr. Alice Berkowitz, Clinical and Forensic Psychologist

Dr. Alice Berkowitz is a clinical and forensic psychologist specializing in Parental Alienation. She runs Families Reunited, an intensive reunification program, and is a member of the editorial board for the Journal of Psychology and Clinical Psychiatry. She is a sought-after expert witness and holds a PhD from USC.