In this episode…

According to Dr. Nik Money, an expert’s role as an educator is the most enjoyable part of the job. He says that it’s crucial to not “dumb down” the science for juries—with a proper explanation, jurors can grasp even the most complex topics, especially with high-quality demonstratives.

Check out the entire episode for our discussion on not underestimating the opposing counsel, working in teams with other experts, and preparing for an engagement through research.

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. Nik Money, Mycologist and Professor of Biology at Miami University

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Dr. Nicholas Money to the show. Dr. Money is a mycologist with expertise in fungal growth and development. He’s a professor of biology at Miami University and a published scholar. Dr. Money holds a PhD in Biological Sciences from the University of Exeter in the United Kingdom. Dr. Money, thank you for joining me here on Engaging Experts.

Dr. Nik Money: I’m looking forward to this conversation.

Noah Bolmer: You’re a mycologist of world renown. How did you first become involved in expert witnessing?

Dr. Nik Money: I became involved in expert witnessing after writing a book, almost 20 years ago, about indoor mold, which was a hot topic at that time. There was a lot of litigation associated with damage to homes caused by mold growth and the putative health impact of mold growth on homeowners. After that book was published, I began to get calls from attorneys representing both plaintiffs and defendants in the area of mold contamination in buildings. The first cases that I became involved with were specifically associated with water damage in homes, and mold growth. Many listeners will have heard of toxic mold and black mold. My role in those cases was to separate facts from fiction and talk about what the science tells us about the fungal contamination of buildings.

Noah Bolmer: That’s interesting. When you talk about separating fact from fiction, I perused some of your scholarly works, and you have a reputation for some controversial takes, at least when some were published. I wanted to hear what it’s like being a bit on the edge of new developments in your field. Is that something that you’re impeached about on the stand? Do people say, “Dr. Money has some crazy ideas. This isn’t what most mycologists think.” Is that something that you’ve had to contend with?

Dr. Nik Money: Briefly in a courtroom setting, but I’ll of course swiftly point out that I have a beat on the truth, and there are [many] contrarian voices with which I disagree. Throughout my career both as a scientist and as an expert witness, I adhere closely to reliable scientific evidence, which is sometimes difficult to get at. What we know and what we don’t know. Then, what is preposterous, and I must say, in a legal setting, sometimes the claims that are made are without scientific merit and are easy to dismiss. In other cases, it’s more nuanced. That’s where the jury has to make its decision in a jury case based on the available evidence. My role as a teacher is to get the truth as it’s known.

Noah Bolmer: Does your work as a professor influence how you explain these complicated topics to juries and judges during bench trials?

Dr. Nik Money: That’s what I enjoy most about this part of my professional life. My work as a professor, teacher, and researcher informs me what I might do in the courtroom in trying to distill often complicated facts in a way that a jury can grapple with these issues. That’s my job and that’s not for a second to suggest that I’m dumbing things down. That’s not the truth. Juries are tasked with a difficult charge. Hopefully, I can make my way through the available evidence and explain it to a broad audience. If I can’t, then I’ve failed as a teacher. Science should be accessible to the public and members of the jury that have no scientific training.

Noah Bolmer: What are some of the most effective techniques for explaining some of these complex topics to lay persons or people who you assume are laypersons vis-a-vis mycology?

Dr. Nik Money: That’s a good question. In a couple of the cases that I’ve been involved with recently, the attorneys that I worked with were good at using graphics in the courtroom. Putting up simple tables and pie charts, and showing, for example, the differences between- so one of the things I deal with is the level of mold contamination in a property so that might relate to the number of particulates, which are fungal spores, little seed like structures that are blowing around and exacerbate allergies and other health effects. Showing that in a graphical form is helpful. Sometimes there’s time available in the courtroom to present that evidence to the jury, but it helps to have it. We’re a visual species, and it helps to show things in a visual fashion. Otherwise, I try to break things down. There’s usually no need to get into the different Latin names of fungi present but getting at the number of particles in mold contamination is important. Using photographs showing the extent of mold growth or other fungal damage that we could talk about in a property, and then comparing the present case, the one that the jury is wrestling with, to some of the worst cases and sometimes that can be powerful.

Noah Bolmer: Do you produce the demonstratives that you use yourself?

Dr. Nik Money: In some cases, I have done that will be a part of a report that I provide to the attorneys that have engaged me, and I’m good at doing that because I do the same thing in the classroom for students. [I try] to explain complicated things to students eager for information. Graphics are important.

Noah Bolmer: I’d like to go back to when you got started. Were you actively advertising or trying to become an expert witness, or did that fall on your lap after you published your book?

Dr. Nik Money: It just came. The book was part of it and published popular articles. I got invited to a meeting that dealt with mold litigation early on. That’s how this started. I’ve found- I would say one of the biggest challenges is advertising ones where it’s putting out a shingle. I’ve tried different techniques. I have my own website and hopefully people searching through keywords will find me, but that’s difficult. It’s interesting the number of companies that say they market the credentials of expert witnesses as these are expensive services. I don’t find LinkedIn helpful. I use LinkedIn, but I get [many] queries that are unrelated to the specifics of what I do. That’s the issue with me, and other expert witnesses. The cases that we deal with are usually quite limited. There are not [many] people out there that are expert witnesses in the fungal growth area. In the few cases where that does become important in a legal setting, I’m one of the people that should be contacted. If anybody has any suggestions there, I’m up for it.

Noah Bolmer: Have you had any luck through expert witness referral agencies?

Dr. Nik Money: Yes. Round Table Group is one that’s contacted me when its owners are interested. That can be helpful. Again, in the cases in which I can play a useful role, it’s feast or famine. Some years there are a lot of litigation going on nationally that interests me and at other times not so much.

Noah Bolmer: Let’s talk about those phone calls. You receive a phone call from somebody, what is the vetting process like? Of course, it’s not only the attorney vetting the expert witness for their experience, expertise, how they are on the stand, and their demeanor, but it’s also the expert witness vetting the engagement? Is this something that I want to be a part of? What are the questions that you like to ask and what are the questions you like attorneys to ask?

Dr. Nik Money: That’s a great question. Yours is a great question. We’re usually trying to figure out what both sides are trying to figure out, if there’s a good fit. For me, I don’t want to waste anybody’s time. I certainly wouldn’t charge anything for an initial consultation, Zoom call or whatever for an hour to discuss the case to see if there’s something that I might add. Sometimes there isn’t any—If for example, they haven’t been measurements- when no indoor air quality measurements have been and the plaintiffs are claiming, perhaps, damaging health effects related to mold exposure. Sometimes there’s not much that I can do. And saying that up front saves everybody’s time. The attorneys for their side are also looking for this. What is it that this individual can do to aid us in this research phase, this discovery phase? That’s helpful and often you can get at that information without learning [many] details of the case, which protects both sides. What are we doing here? What are your expectations? Then, do they mesh with the expertise that I can offer?

Noah Bolmer: Earlier you mentioned that you were receiving calls from both plaintiff and defendant attorneys. Do you find that you work roughly half and half, or do you tend to work more for one or the other side? Do you have a preference?

Dr. Nik Money: I actually totted that up recently. Over the years that I’ve been doing this and it’s roughly 50/50, which is interesting. I’m happy working for either side. I follow the evidence. Show me the evidence and that’s what I’ll follow. I can’t possibly support something, and I won’t support something for which there’s no evidence, but it’s up to the attorneys to figure out what is legally supportable. That’s not my job. I’m not going to make an extreme case where the evidence is lacking. I know a little about the law, about Daubert, and the supreme importance of scientific evidence. What do we know?

Noah Bolmer: Have you been subject to a Daubert proceeding?

Dr. Nik Money: A little bit about that. How far can we— here’s an example of this. I’m going to go back to this indoor mold contamination because that’s often what I deal with and there’s the issue of what level of mold growth and what level of particulates in the air represents a threat to someone’s health. That’s a complicated issue because for a while it looked like we were moving toward- all the experts were moving toward, not me, but others in the field were moving towards some sort of federal standards for this, so that if we got a measurement above a certain level that is something that is of concern. It’s something that would trigger some kind of significant response and then obviously some legal issues associated with that, but we’ve—the indoor air quality communities, moved away from that and there are some general guidelines that we can use now, but that’s a perfect example there of a reasonable degree of scientific certainty. I don’t know if we can apply that, but we can show other cases in which high levels of mold growth, or similar levels of mold growth, have represented a concern. I point this out to a jury that we don’t have federal standards. In this case, we’ve got them for lead in drinking water. We don’t have any fungal growth. That would be an example.

Noah Bolmer: Let’s talk a little about preparation. Do you have a routine pre-trial or pre deposition ritual that gets you in the right headspace and prepares you to get ready to go? For instance, I’ve had expert witnesses who like to have coffee, a full meal, exercise, or fast. They all have different ideas of what gets them ready to go for potentially contentious action. Do you have any pretrial routines?

Dr. Nik Money: Yes and no. It’s not like I’m taking any particular mushroom supplements to prepare myself. It’s the cut and thrust in the courtroom or as you say during a deposition. The best preparation is to reread all the documents and make sure as an expert witness, you have a command of those materials. I’ll say here self-deprecating, but for good reason. I have made the mistake in the past of amazing the other side. Many attorneys intellectually impress me even though they don’t have an understanding of the science. When I was younger, I thought, I’ve got this covered. Nobody can attack this argument. Attorneys are obviously good in finding weaknesses in arguments, so on certain occasions I don’t know that any preparation would have helped me. I suppose that it’s important trying to look at where the weaknesses are in one’s argument or deposition. Are there areas where this issue of scientific certainty well-being clear about what the evidence shows and where the limits of the Information are intimidating. I don’t think there’s any other ritual other than reading everything carefully, especially before you go in the courtroom because that’s a potentially fitting place for anyone other than attorneys, and I suppose, judges. Even then, preparation.

Noah Bolmer: Are there ways that attorneys can assist in allaying some of those potential sources of nervousness or fears going in? In other words, things like mock-depositions, mock cross-examinations.

Dr. Nik Money: That’s a good question. I’ve had one or maybe two cases where the attorney before a deposition or before trial has done that. They’re cross questioning me and they’re asking me questions. Obviously, you see this play out in our national political sphere that before a presidential or candidate’s debate. That preparation can be very useful. Often, there’s a time crunch when things go to trial, and there isn’t the opportunity to go here, but that can be helpful, especially if an attorney has read the expert witnesses report and identified some weaknesses in there. “Let’s go back and look at this. How can we explain this more clearly and argue this in a more compelling fashion?”

Noah Bolmer: Let’s talk about those time crunches. Do you feel that when you are called for an engagement, there’s sufficient time for you to do your best work?

Dr. Nik Money: In most cases that has been true. There have been exceptions where—some cases will run on for an extraordinary length of time. Years before it finally gets to the courtroom and then it’s a rush at the last moment. There might be many expert witnesses that are involved and that can certainly be problematic again and having to go back over one’s deposition, maybe from years ago, before this thing gets to the courtroom. It always amazes people that are not involved in legal action or not in the legal profession themselves, how long some cases can drag out.

Noah Bolmer: I’ve seen them go months and even years at times. With those unforeseen eventualities which do occur. For somebody like you, who’s also a professor with a full schedule, how do you manage your schedule when all of a sudden you get called and the trial starts moving at a rapid clip? How do you organize your schedule to make sure you have enough time for everything when it wasn’t something that you could have foreseen upon accepting the engagement?

Dr. Nik Money: That can be a be a challenge. I teach for a state university and we’re good as colleagues in covering one another’s classes when personal issues arise. Exactly the same thing applies to needing to be out of state for a trial, for example. I’m fairly good at multitasking, which is an overused term and compartmentalizing things. I’m going to spend this number of hours working on a report on this case and then I’m good at separating those tasks.

Noah Bolmer: Do you use any scheduling software or spreadsheets to keep your life organized?

Dr. Nik Money: Nope, nothing whatsoever. I’m terrible. I’ve got a Google Calendar. People will look at my Google Calendar and say, “He doesn’t do anything.” I still keep a paper diary, and I write everything in that. I remember years ago [while] traveling, I lost that diary in an airport before a series of meetings. I don’t know what happened. Maybe it was stolen. I was absolutely floored. There was so much information written down. I shouldn’t be such a Luddite, and I should begin to use some online calendaring or get a personal whatever they call a person that organizes my life for me.

Noah Bolmer: Speaking of traveling, let’s talk about billing schedules. For instance, do you use a non-refundable retainer? Do you have a specific travel rate? Do you do project rates hourly? How do you structure your billing?

Dr. Nik Money: Good question. I’ve got a fee schedule that I provide to potential clients, and it has an hourly rate for different activities: reviewing, documentation, writing a report, travel, and daily rate for an engagement where travel is involved. All of that I would specify for a potential client and in some cases that’s negotiable. I have found most law firms are good to deal with. There’s been some exceptions where they haven’t followed through and paid me. Then, I’m on the phone or emailing frequently to make sure that I’m compensated for the time that I’ve invested in a case. That seems reasonable. In some cases, I’ve agreed to a retainer or something like when you’re paying the upfront bill for 10 hours’ work and then if more work is required then I begin billing on an hourly basis. I like to think that I’m flexible.

Noah Bolmer: What are the things that lead to a quality, productive engagement that’s efficient and enjoyable for all parties? How do you get off on the right foot to ensure a quality engagement?

Dr. Nik Money: Understanding what the law firm’s expectations are is significant for their part. Then understanding what my expectations would be if they engaged me. I expect—they’ll see the fee schedule, for example. What do they want from me? What kind of analysis do they require of the situation? Is a site visit necessary? So, a lot of this, I’ve mentioned, mold contamination, but I’ve also looked at fungal contamination of products, for example, during storage. In some cases, it’s useful for me, as I imagined it is for other expert witnesses to visit the site, but that can be time-consuming and costly. Is that really necessary? In some cases, it isn’t, so I’ll make the case that if you ever expect to have me as an expert witness in the courtroom, I don’t want to be asked the question, “Did you ever actually examine this product yourself?” If I’ve just based it on looking at photographs, then that can be helpful in some cases. But let’s look at how limiting that can also be. Even though it’s expensive to get someone like me to go on a two-day trip to look at a site that can be a good investment on the part of the law firm.

Noah Bolmer: The end client, of course.

Dr. Nik Money: The insurance company. The insurance company. I’ve worked for insurance companies too. The most important thing is what are your expectations? The other thing for me that’s important is understanding where the data is being collected beforehand. Do you have information that you can share with me? I can’t possibly write a report based upon hearsay. I need to see some data and so in some cases, we’ve had an hour consultation for which I haven’t billed the attorney and said, “If you can’t provide me with data, there’s not much that I can do as a scientist.” That’s not always the case. Sometimes my opinion is based upon, looking—in general looking at the health effects of mold contamination. I’m not a medical doctor, but I’ve been engaged in a number of cases where I’ve provided information on what the scientific evidence is related to fungal to mold exposure related to allergy and so forth. Those have been some of the most rewarding cases for me because they have also engaged a medical doctor as an expert witness. Providing my information, totally separately from their information and objective opinion, separate from that provided by a medical doctor that can provide a powerful case.

Noah Bolmer: To what extent are you able to collaborate with other experts that are on the trial team?

Dr. Nik Money: That’s certainly happened in a number of cases. I mean with building damage too, I’ve worked with indoor air quality experts that collect data within the building, but they have to be doing this again. I can’t be driving the—I can’t be driving their work. We’ve have to get this separation of witnesses, forensic architects too, that I’ve worked with. That can be- but that often is powerful rather than just having us. There are a few cases in which I’d be the only expert witness involved in a case, but there have been a couple.

Noah Bolmer: Are there any cases that stand out in your mind as being the tentpole cases of your career as an expert witness? That either changed something about the way that you go about expert witnessing or reinforced something that you are already doing?

Dr. Nik Money: There have been cases where expert witnesses or supposed witnesses that are supposed experts have been engaged, and then it comes down to a fight between these expert witnesses. Not that we’re ever seeing each other in the courtroom, but it’s these radically different readings of the same data, the same information. And that’s been interesting. In some cases what I have to do there is to draw back before I’m engaging in ad hominem attacks upon the credentials of those witnesses. I have to stick to the science. Those have been some of the most challenging cases that end up where maybe we’re disagreeing, but it’s a reasonable disagreement. A scientific disagreement about what the data suggests. All I can do in that case is provide my opinion. It’s up to the jury to decide. It’s rarely based upon just one person. It would be crazy. One expert’s view versus another, but this is based on the available evidence and based upon my decades of experience in the field, this is what I think.

Noah Bolmer: Have you worked in different venues? For instance, state versus federal. Perhaps torts versus crimes? Have you worked in a variety of different venues, and if so, what are the differences for an expert witness? Or are they largely the same in terms of your job?

Dr. Nik Money: For me they’re largely the same because of the issues related to what fungal damage of property mold, contamination of buildings, mold exposure of children in schools and so forth. The rules there or rather the size is going to be the same nationally, most of the work that I’ve done as being within the state of Ohio where I live. I have worked with attorneys that are representing clients in Illinois, California, Arizona, Nevada, and so forth because the issues for me don’t change that much. It’s advantageous to look at the laws as they apply differently from state to state, but again, in terms of the science, that’s something that does not differ regionally.

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

Dr. Nik Money: It’s useful if they can get information on other cases to look at the public records and the depositions that have been provided by expert witnesses in your field. That can be informative. Talk to other expert witnesses in your field of interest and ask them. This has been an interesting discussion that we’ve had here, but I can imagine a discussion like this with another younger potential expert witness and show them it’s sometimes not possible, but to show them examples of written reports. Because written reports are absolutely a crucial part of what we what we do. There isn’t any template for this. You won’t find them online and experts will differ in in the way that they work on their written reports and attorneys also will require different levels of detail. Networking is a useful thing to be involved with. Not that I can claim that I’m particularly successful at networking as I mentioned with my experience with LinkedIn.

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

Dr. Nik Money: Thank you so much. It was an interesting conversation.

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

Dr. Nicholas Money, Professor of Biology

Dr. Nicholas "Nik" Money, is a mycologist with expertise in fungal growth and development. He is a Professor of Biology at Miami University, and a published scholar. Dr. Money holds a PhD in Biological Sciences from the University of Exeter.