In this episode…

It’s important to know what your area of specialty is within your field, according to Captain Cox. Even if you have broad knowledge across many related areas, it’s best to take cases that are squarely within the bounds of your experience and expertise.

Check out the whole episode for our discussion on keeping your billing rates simple, two-way communication, and getting feedback after your engagement ends.

 

Note: Transcript has been lightly edited for clarity. 

Host: Noah Bolmer, Round Table Group

Guest: Captain John Cox, CEO of Safety Operating Systems

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Captain John Cox to the show. Captain Cox is the CEO of Safety Operating Systems, a full-service aviation consulting firm. He’s the recipient of the FAA’s Master Pilot Award, an analyst for numerous news media organizations, and a published author. Captain Cox holds an MBA in Aviation Management from Daniel Webster College. Captain Cox, thank you for joining me today on Engaging Experts.

Captain John Cox: My pleasure. Thanks for the invitation.

Noah Bolmer: You’ve been a pilot for many decades. What first got you involved in expert witnessing?

Captain John Cox: I had been doing a lot of aviation safety work in my last years with the airline. When I left the airline in 2005, I had some friends that were doing some legal expert work so, it was a natural progression. As we found Safety Operating Systems legal expert work was one of the things we made available.

Noah Bolmer: Did you get a call out of the blue for expert work or were you specifically advertising, “We do expert witnessing work.”

Captain John Cox: A bit of both. I had been involved in some aircraft accident investigations, so I had been deposed, a witness, and being involved in the legal system. I knew some of the attorneys and they turned around and were comfortable with me and so, it was—they asked me, On the other hand, I was also putting it out on the web page that we offered that service.

Noah Bolmer: Let’s talk about that initial phone call. You get a call from somebody, and they want to engage you or one of the other people at your company as an expert witness. What are the questions that they’re likely to pose to you and what are the ones that you ask them because it is a two-way vetting process?

Captain John Cox: It is a two-way vetting process, and if you are going to be an effective expert, you [must] know what cases to turn down. That’s as important as what cases to take. The first thing is I let the attorneys run the narrative of what the case is about. Oftentimes they’ll just try to read the complaint, and I want something more than that, so I understand what the issues of the case are and whether the case has merit. There are some cases where you feel like this is a stretch, and I don’t want to be associated with it. They’re looking—I get this question: “Is this something you can do”? You have to know your limitations and when to say no. If this is far too deep into meteorology for a pilot, you need a meteorologist. You must be able to make those determinations [during] that initial phone call.

Noah Bolmer: Any other red flags?

Captain John Cox: Ones where you look at the case and go “Are you kidding me?” I had one where they were trying to sue the government, saying the FAA was not doing the right kind of job, and I’m like, “Are you kidding me?” That went, “No thanks. Have a nice life” and you need to move on.

Noah Bolmer: When you were talking about getting enough information to make a determination on whether you should turn down a case, do you get that amount of information during the initial phone call, or is that kind—do you sometimes end up having to sign an NDA and get more documentation in?

Captain John Cox: I’ve seen it go both ways. What they’ll typically do is send you the complaint because it’s a public record. Or they’ll talk about the complaint. Is this something you’re interested in? And it moves on from there, and oftentimes there’s an NDA involved or a letter of retainment, in which case, I’m legally bound once I’m retained by them. In turn they pay me a retainer. Then you generally get a lot more information. They’ll send you what they have based on the evidence so far.

Noah Bolmer: Is that the point at which a consultation becomes a billable occurrence once you have signed something. Is it free up until that point?

Captain John Cox: It’s free until we agree that I’ll take the case and that they want me to take the case. In other words, I am retained. At that point, the first thing for me is, there is a retainer fee. I expect that to be paid and then, we’ll move forward from there. All that time is billable.

Noah Bolmer: Any other contract terms that you insert besides a non-refundable retainer? Do you do project rates? Do you do hourly rates? Do you change your rates for travel? What is your billing schedule?

Captain John Cox: The billing schedule is an hourly rate, and I try to keep it simple. I know there are many consultants that have one rate if you’re testifying and one rate if you’re doing research. For a variety of reasons, I’ve always kept it at a single rate. [For] intercontinental travel business class is required. Travel days are typically one-half day, which is four hours of an 8-hour day. I have an Excel sheet, and the clock starts at whatever time I start reading documents or am on phone calls and it goes from there.

Noah Bolmer: You were talking about how important it is to occasionally turn down a potential engagement. Do you turn down significant number of potential engagements?

Captain John Cox: I wouldn’t say a significant number. I have turned down a few. Sometimes I’ll be asked about a case, particularly if it’s a plaintiff, that they think there’s a case there and we’ll go through some period or time where it’s like, “This isn’t going to work.” At that point, I may step back from the case. I’ve had a couple of plaintiffs that were adamant and wanted their retainer back. Retainers are non-refundable, and there was some heated discussion back and forth about that. But as I tell them, the evidence leads you where it leads you. You have to look at it that way and go down that road.

Noah Bolmer: You talk about plaintiffs potentially engaging you. Do you find that the split is even between plaintiffs and defendants?

Captain John Cox: I’m a little heavy on defense, but I do both. I’ll look at either one. It’s the merit and quality of the case to me.

Noah Bolmer: Do you worry about getting impeached on the stand? This guy is a hired gun. He only works for this side or only works for the other side. Do you actively manage that or is it something that works out that you’re working about 50/50?

Captain John Cox: I don’t actively manage it, and I’ve had that question. “Well, you do more defense work, so you’ve got a bias or a predisposition toward defense.” I can take that argument down quickly with the number of years I’ve been doing this, the caseload which I provide for them, and you can see that I’ve been on both sides of it. When I go back, I look at the merit of the case, not which side it’s on. That pretty much disarms them. I’ve only had one attorney that really came after me, and he ended up losing that case, which was poetic justice.

Noah Bolmer: You have certainly been at it for a while. What has changed throughout your career as an expert witness, expectations, or logistics? I know many people are [using] Zoom these days. What are some of the things you’ve seen change?

Captain John Cox: First, the variety of formats and ways that reports must be submitted to the court. It’s as though each court has its own way of doing things, whether it’s a federal court, a state court, or whatever. That has changed over the years. One of the questions I ask early on is, “What do you want me to do? Do you want me to write a report?” In some cases, the answer is, “Yes.” In other cases, it’s “No, we’ll do that at a later point.” The biggest single change post-pandemic, or during the pandemic, was more live depositions on either Zoom, Teams, or some other medium. I do a lot less in-person deposition than live.

Noah Bolmer: Do you prefer not having to travel and being able to do that from your home or from a workspace, or do you prefer being there in person?

Captain John Cox: It doesn’t matter to me. I’m glad to do it either way. You get a better feel for the attorneys in-person. Just body language and being around people. It’s not something what—either way is fine.

Noah Bolmer: Do you find there are differences in terms of demeanor, connecting with the jury, making eye contact by looking at the camera? Are there any other considerations for telepresence, or is it the same thing?

Captain John Cox: With telepresence, you try to look directly at the camera. You try to answer questions effectively and in sound bites that come easily. In person, it’s more of a personal dialogue between you and the attorney. You can read more body language from the attorney in-person than you can via a platform.

Noah Bolmer: Do you tend to use demonstratives in your work? Charts, graphs, models, and things of that nature?

Captain John Cox: Not a whole lot. Oftentimes, we’ll get into research where there might be graphs. In reports, I may screenshot something out of that and say, “As this graph shows you, there was a X percentage decrease over this period.” But that is more in the underpinning of opinion with fact and evidence to show how you arrived at the opinion.

Noah Bolmer: You mentioned one instance in which an attorney was ruthless about trying to impeach you about working for the defense too often. How do you keep calm in tense situations? How do you keep cool? For instance, do you have a pre-trial or pre-deposition routine that gets you ready for the day? That gets you in the right headspace. Do you have coffee, make sure you have a full meal, or fast? What’s your pretrial routine and how do you keep it together during tense moments on the stand?

Captain John Cox: One of the things I’ve learned after doing a lot of public speaking over the years is that I tend to do better with fuel. Consequently, I’m going to have a good breakfast in the morning to have fuel to burn during that. Going in, I try to answer the original questions with a respectful demeanor, and I will maintain that. I can be respectful, absolutely challenge an attorney, and never raise my voice. I’ve had one attorney jump up and down making some accusations, and my voice inflections never changed. He didn’t do well. We got a summary judgment against him.

Noah Bolmer: Are there any cases that come to mind that were pivotal? Ones that changed something about the way that you go about expert witnessing or reinforced something that you were already doing as an expert witness?

Captain John Cox: Early on, I was involved in a case after an aircraft accident. It was a high-profile case and there were many attorneys both on the plaintiff and defense sides. My deposition was multiple days, and it was an arduous experience. After that—because it was early on before I got the company started. After that, it ain’t going to get any worse. You go in with the attitude of, “Okay, take your best shot.” I try carefully to underpin the opinions that I publish with good citations, so if you go right there, as it says in the report and that’s where I’m going to start pushing the attorneys back into a corner.

Noah Bolmer: As somebody who is published, do you ever worry that you said something 40 years ago that you changed your mind about, or the facts or times have changed, and getting impeached on those things.

Captain John Cox: I’ve had that come up a couple of times where they say, “You said this in a speech, or a presentation. Does that mean what you say in your report is in fact wrong?” “No, because look at the context.” What I’ll do is put it in a timeline and context. I’ve had that come up once or twice. I’m open with the attorneys about the depositions I’ve given and the legal work that I’ve done. If you Google my name, the presentations and the TV work will all come up. I haven’t had many problems with that. Just a few.

Noah Bolmer: Aviation is a broad area. It is subject to numerous laws at federal, state, and local levels. How do you remain an expert in your field? I notice you have a million certifications, so you’re doing something to keep up with it. What is it like in such a broad and dynamic field, not just being an expert but remaining one?

Captain John Cox: The most important part of that is to know where your area of specialty is going to be: aviation safety, accident investigation, flight operations, I’m good at those. I can do high-level maintenance because I’m an accredited maintenance auditor. I have more fixed wing time than rotor wing time and I have done helicopter work, but I’m not going to come in and say that I’m an expert on flying helicopters. I’m an expert on evaluating helicopter operations. You have to know where those lines of experience and expertise are.

Noah Bolmer: Let’s talk a bit about venue. Have you worked in venues in different states and levels? Have you worked both in criminal and tort? What are some of the different venues you’ve worked in and how, as an expert witness, is it different working in those venues?

Captain John Cox: I’ve worked in federal courts and multiple states. I haven’t worked in criminal. I came close on one case, but it went away, but the state laws are different than federal laws. The whole process is different. Do you want to file a report? Do you not want to file a report? I like to interview witnesses myself. Sometimes that’s doable and in other cases, the courts don’t want experts to do that. Each one of them—I’ll let the attorney guide me on that. I’ll put it out, that this will help our case in this way and list out those things out, and it’s like, “Nope, we can’t do that.” All right, fine. Then we’ll find another way to do it. I’m not a lawyer. I don’t claim to be a lawyer. I let the legal expertise reside with them, and obviously I take their guidance about how best to acquire the evidence necessary to make an opinion.

Noah Bolmer: Are engaging attorneys typically good about providing that guidance without prompting or do you have to take a proactive approach and say, “I haven’t worked in this venue before, I’m not sure what the report looks like. Can you give me some guidance on that?”

Captain John Cox: I will typically put it in a format as a draft and I’ll send it to them and say, “If you want to reformat this in a different way, that’s fine.” Over the years I’ve built up a number of different formats depending on whether it’s a federal case or a state case. Sometimes, the complexity of the case does need extensive reports. In other complex cases, you’re talking about a small book.

Noah Bolmer: Shifting gears, what in general makes for a positive expert attorney relationship? How do you get off on the right foot and what are the things that both parties should be doing to maintain that quality, effective, efficient expert attorney relationship?

Captain John Cox: Be a good listener and that works on both sides. If you’re talking all the time, you’re not listening and it it’s a one-sided conversation. As an expert, I want to hear how they’re trying to put the case together and if I can give an opinion that helps that, then great. If not, then let’s talk about what I can do, but it needs to be a two-way conversation and if I’m asking for additional evidence that they need to gain through an additional discovery request, here’s why. Here’s where I’m trying to go with it, so I try to be very open with them once I have the framework in my head about where the opinion is likely to go, where the reports likely to go. Then it’s what evidence do we need to underpin it, and I’ll put all that out in discussions with the attorney. This is why I’m asking for this. We need to make sure that this is acknowledged industry best practice or that this is consistent with a federal regulation. Anything like that, but it’s open communication and good listening.

Noah Bolmer: Expert witnesses are one part of a larger trial team and in some cases a quite large trial team, ranging from paralegals, assistants, other expert witnesses, and a group of attorneys. When you are working in a larger trial group or trial team, to what extent do you interact with the other members or is it just a dialogue between you and the main attorney and the other parts are independent?

Captain John Cox: It can vary depending on the case. One of the things you have to realize as an expert is they only want you to have a given amount of information. You’re not going to see the big picture. You may be curious about it, and it can be frustrating because you don’t know what you don’t know. But what you’ve been asked to do is take evidence that has been supplied to you. evaluate it and provide an opinion. I’ve had cases where I never knew that the case was settled or quit hearing from the attorneys. They paid the invoices, and I never heard anything one way or the other. That doesn’t generally happen. Usually there’ll be a “This one settled.” Or a “We’re going to go to trial.” The last one that went to trial was on the West Coast, so I flew out there. We did that and I had no idea that the trial went on for several more days. Finally, they called and said, “By the way, we won.” That was good. I was glad to hear it, but you do live in a bit of isolation and that’s by the attorney’s design. You have to recognize that.

Noah Bolmer: When it winds up, do you prefer when an attorney lets you know what happened, gives you a few pointers, and lets you know what they thought of your performance or are you ready to move on to the next thing?

Captain John Cox: I always want feedback. That’s a continuous improvement and I ask for it from the attorneys every time at the end, “Is there anything I could have done better for you?” I want that from the first phone call to the last one. That open dialogue and exchange of information. I do everything I can to make that happen.

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses or attorneys working with expert witnesses?

Captain John Cox: To pending experts, it’s oftentimes feast or famine. You won’t have a case for a period of time, and then there’ll be three that pop up. Maintaining that balance is about providing high quality work and making sure that you’re not overloading yourself when those multiple cases roll in. Two, is to do high-quality work and give the attorneys a hundred percent. If you don’t know something, tell them that you don’t know. You don’t need to be an expert in everything. There are areas that each of us don’t know nearly as well as we might like. Be open with the attorneys about what you do know and what you don’t know. Where your expertise is. Attorneys, listen to your experts. Give them the data to help them help you. Maintaining that open dialogue that will serve both parties better than just about anything else.

Noah Bolmer: Sage advice. Captain Cox, thank you for joining me today.

Captain John Cox: My pleasure.

Noah Bolmer: And thank you as always to our listeners for joining us for another edition of Engaging Experts.

Captain John Cox, CEO, Safety Operating Systems

Captain John Cox, is the CEO of Safety Operating Systems, a full-service aviation consulting firm. He is the recipient of the FAA’s Master Pilot Award, an analyst for numerous news media organizations, and a published author. Captain Cox holds an MBA in Aviation Management from Daniel Webster College.