In this episode…

Don’t start working until you have a signed contract, according to Dr. David Stephens. It can be tempting to try and be overly helpful on initial calls and conversations, but it is important to get paid for any work you do in service of the end client.

Check out the entire episode for our discussion on making it through slow periods, good communication, and staying current.

 

Note:  Transcript has been lightly edited for clarity

Host:  Noah Bolmer, Round Table Group

Guest: Dr. David Stephens, Biochemist and Health Physicist

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Dr. David Stevens to the show. Now, Dr. Stevens is a biochemist, health physicist, and environmental and forensic consultant. He has worked with the health department on numerous matters, including radioactive materials licensing, and he has served as an expert in cases ranging from clandestine drug lab analysis to environmental risk factors. Dr. Stevens holds a Ph.D. in Biochemistry from UT Austin. Dr. Stevens, thank you for joining me here today.

Dr. David Stephens: Thank you.

Noah Bolmer: You’ve made a career as a biochemist. How did you first become involved in expert witnessing?

Dr. David Stephens: The first half of my life was academic. I was entirely in the college environment. That was when I was getting my degree. And after I finished that, I was rather tired of the ivory tower thing, and I wanted to get into something that was more active in the world and environmental concerns were paramount in my mind. I went looking for that and ended up getting involved with some attorneys over the years who put me on to doing expert witnessing and forensic consulting. I loved it and have kept with it.

Noah Bolmer: Tell me about that first phone call. Was it out of the blue? Was expert witnessing even something that you had heard of?

Dr. David Stephens: No. Maybe watching court shows or something, [where] you see an occasional person brought on, but in real life, I hadn’t thought about it. I advertised in the Yellow Pages, which takes us back a ways. A local attorney called me and asked me if I could do some work on clandestine drug lab cases. I said, “Sure, I’d love to look at them.” That started a relationship between us that lasted about a year to a year and a half, where I looked at four cases. Unfortunately, in most of them, I couldn’t help his client because they were doing everything they were supposedly doing. I was able to give him a chemical analysis of that.

Noah Bolmer: How do you make that determination when you get a call from an attorney and they need X, Y, and Z? How do you know that you are the right person, and that your expertise is in that wheelhouse?

Dr. David Stephens: Obviously, the attorney has to give you some information about what he’s looking at. Usually, they’re limited because they have to sign a non-disclosure agreement before they can give you any specific information. But with the information he’s able to give you in a general sense, you look at your experience and education and say, “Yeah, I can do that.” I have enough information and experience in that to be able to render him a useful opinion.

Noah Bolmer: Is that something that’s a billable occurrence?

Dr. David Stephens: Like most people, I give an initial consultation for free, but after that we must sign a contract because that information is what you work for. Early on, I would get suckered into it because I love to answer questions and they’d ask me things on the phone, and I’d answer [them]. Then, I’d think to myself that I went a little too far. But you learn.

Noah Bolmer: Let’s talk about those contracts. Are there any specific terms that you like to have in there? Do you take a retainer, a project rate, or a travel fee? Are there any specific terms that you like to have in your contracts?

Dr. David Stephens: All you mentioned. I charge a retainer, usually one eight-hour billable session. [As far as] travel, you can charge the IRS per mile rate for automobile travel and an hourly rate for travel time. Definitely in your contract, you want something about lodging and traveling. I’m getting up in years and I can’t fly coach anymore. I need to have more leg room. Those are the things you need to think about. Down the road, what is going to be entailed if I’m called to court and have to travel to another city and stay there for a while. You might want to get that down in writing.

Noah Bolmer: Is that a special rate, a travel rate, or is that your regular rate applied across the time of travel?

Dr. David Stephens: No. I charge less for travel because I’ll be working on the case while I’m sitting there on the plane anyway, but I charge less for that.

Noah Bolmer: Let’s discuss expert witness reports. What are the things that you’ve been brought on to write about in, in your consulting and expert witness work?

Dr. David Stephens: In my case, the summary of the case research that I did in each case. In the last case I worked on, I found one attorney who told me specifically not to keep any written records whatsoever because they could always be subpoenaed by the other side and brought into court. I said, “So, I should make little notes on scratch paper and tear them up or burn them?” That was the only time I’ve encountered that.

Noah Bolmer: That’s an interesting situation. I haven’t heard of that happening. One of the things that you had mentioned prior to our call is that sometimes there is a bit of a gap between engagements. How do you prepare yourself for those sorts of eventualities? Do you have other work or are you primarily an expert witness?

Dr. David Stephens: I retired from the health department in 2019, so I have a retirement and Social Security and when I don’t have anything else going on, I basically just make do with that. I’ve got my lifestyle toned down to the bare necessities. I get along until I get another job.

Noah Bolmer: Are there any techniques that you use to try and get yourself out there and get more engagements? We had spoken about round Table Group. Have you found luck with expert witness referral agencies or do you do any other sorts of advertising? I’m assuming that you’re still not doing the Yellow Pages.

Dr. David Stephens: No, I had to give up the Yellow Page ads some years ago it just didn’t seem to be- I don’t think anybody looks at it anymore. I had a web page for a while and I didn’t get any hits on that. I’ve listed myself with a couple of other expert witness services, but Round Table Group is the only one that has brought me any success, so I stuck with them. I got one nibble from one of the other ones. In all of these cases, if you get a nibble, something happens. They either settle or drop the case. I had one where the guy dropped the case for some reason. I guess he decided it wasn’t worth pursuing. You can’t control any of those things, so you have to keep a tight rein on your excitement that you’re going to get one because until you sign the contract, you don’t [have] one. You can do preliminary research, which I always do because the minute they tell me about it, I’m out looking up papers and stuff. You have to wait until you have that contract in hand before anything’s going on.

Noah Bolmer: Let’s back up to those initial phone calls. It’s a two-way process. They’re vetting you, but you’re also vetting them. What are the things that you think makes for a positive expert witness attorney relationship?

Dr. David Stephens: Frequent and good communication. The last case I had, we had a conference call every two or three days. I was brought in at the last minute on that one. He told me I was just out-of-the-box. A guy that he wanted to look at. He had already had some experts that had turned in some various reports. He had the reports from the experts on the other side and he just wanted me to go over everything and see what I could find. I found a number of interesting points. Obviously, being open and trying to fulfill what they’re ask for, and in some cases helping them clarify what it is that they are wanting to find. With an expert in a science, many they know what they want, but you have to sharpen the request to the point where it’s something you can answer. Those are important points to me.

Noah Bolmer: In such a technical field, how do you remain an expert? You’re dealing with what I imagine is quite dynamic. How do you stay on top of things so that you still continue to get phone calls and can still consult or be an expert in a case that might deal with some new discovery or some new methodology?

Dr. David Stephens: You have to stay dynamically aware of what’s going on. You look at publications, and you read things. There’s been a recent trend in regulatory health physics, so regulation of radiation towards this thing called hormesis which means a little is good for you. The standard policy has been what’s called the linear no threshold theory, which means radiation is bad down to an infinitely small degree. The new regulatory posture that has been looked at would say that  down below a certain level we don’t have to worry about it. The thing there is that would save a lot of money for the people being regulated if they didn’t have to insure radiation shielding or whatever below a certain point. That’s been one trend, but  there are other things and you have to keep on top of it. You go to different websites and different postings. You look at colleagues, you stay in touch with people, and you watch the trend.

Noah Bolmer: Do you find that trade events or maintaining any licensure is important in your field?

Dr. David Stephens: I used to have a hazardous material certification, but I let that lapse because I wasn’t going to go out on any responses. In general, I haven’t found that to be true, although other people might have other experiences.

Noah Bolmer: Have you ever been in a matter that has either changed the way you go about doing something as an expert witness, or reinforced something that you do as an expert witness?

Dr. David Stephens: There’s a tendency for someone like me to perhaps overelaborate when answering the question in court. You have to repeatedly remind yourself to answer the question and stop. Don’t give them any more detail that opens the door for them to pursue and question you. I’m talking, of course, about cross-examination and you drill extensively with the attorney before for cross-examination because the other side has ways they’re going to try to upset you or get you to say something.

Noah Bolmer: Are there any specific preparation techniques that work for you? You mentioned things like mock cross-examination. Are there any other getting ready techniques that are effective in a courtroom situation, or even in a deposition?

Dr. David Stephens: Reviewing their claims and your information. The cross arguments of the case. Making sure all of your supporting information and stuff is absolutely crystal in your mind. If you’re challenged, you’re right there with, “No, this happened. This has been published and these people found this to be true and they’re all very accredited.” You have to be solid when you walk in there because again there are going to be people who try to rattle you.

Noah Bolmer: You have been a biochemist much longer than you’ve been an expert witness. Over the years, I imagine you have opined and written down your opinions. Do you ever worry about contradicting that at some point, either during cross-examination or in a rebuttal expert witness report that somebody says, “Thirty years ago you said X, but now you’re saying Y.” How do you keep track of the opinions that you’ve made public over the years?

Dr. David Stephens: I guess if someone were to come to me with a more recent piece of information I would check that out and say, “I guess I was wrong.” In the case of something happening that’s changed the state of affairs in that particular subject. I don’t have a problem with that. I have a professional ethic where I’m not going to say something that’s not true either way in court. I’ll tell my client, “No, I’m sorry. I can’t say that because in my opinion, that’s not true, and you’re asking me to bend things a little too far.”

Noah Bolmer: Along those lines, how should an expert witness go about giving bad news, quote-unquote bad news to their engaging attorneys? Something that they don’t necessarily want to hear.

Dr. David Stephens: No, I don’t think you can embellish that, send flowers or anything. You’re going to have to be straight up with them. They don’t want to waste any more time than necessary. They’re paying you a lot of money, and if something comes back and you say, “I’m sorry, I can’t.”

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

Dr. David Stephens: Other than what we’ve already discussed in terms of communication and being able to hang in there during the dry spells, because there will be dry spells. If you’re independently employed, or a contract worker. All professions go through ups and downs where it’s hot for a while and then there could be a dearth of it for a long time. I thought the pandemic cut into my business among other factors. Maybe the political environment or something. I work with environmental cases, so if the EPA or one of those other agencies has a change in regulation that could affect things. I got into it because I love puzzle solving and this is one of the best places for that. Just hang in there.

Noah Bolmer: Sage advice. Dr. Stephens, thank you for joining me today.

Dr. David Stephens: Thank you for having me.

Noah Bolmer: Of course, and as always thank you to our listeners for joining me for another episode of Engaging Experts.

Dr. David Stephens, Biochemist and Health Physicist

Dr. David Stephens, is a biochemist, health physicist, and environmental and forensic consultant. He has worked with the Health Department on numerous matters, including radioactive materials licensing, and he has served as an expert on cases ranging from clandestine drug lab analysis to environmental risk factors. Dr. Stephens holds a PhD in Biochemistry from UT Austin.