In this episode…

Today’s episode is a panel discussion on the expert-attorney relationship. Our panelists are past podcast guests, Dr. Jolie Brams and Mr. Kevin Quinley.

Avoiding surprises is the key to a positive expert-attorney relationship, according to our panelists. Set expectations before accepting an engagement—billing, scheduling, and work-product should be fully understood and agreed upon. Legal matters are dynamic; be proactive in asking questions if anything is unclear, or circumstances change for a positive working relationship.

Check out the entire episode for our discussion on getting off on the right food, red flags to be aware of, and what it takes to be a great expert witness.

Note:   Transcript has been lightly edited for clarity

Host:   Noah Bolmer, Round Table Group

Guest: Dr. Jolie Brams, Owner of Brams and Associates

Guest: Kevin Quinley, Founder of Quinley Risk Associates

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I am excited to welcome two distinguished panelists, and returning guests to the show. First, we have Dr. Jolie Brams. She’s the owner of Brams and Associates, a psychology practice and forensic psychology consulting firm. She has extensive experience in both criminal and civil matters ranging from state and federal sentencing to educational litigation and beyond. Dr. Brams holds a doctorate in clinical psychology from Michigan State. Dr. Brams, welcome to the show.

Dr. Jolie Brams: Thank you.

Noah Bolmer: Also joining us is Mr. Kevin Quinley, founder of Quinley Risk Associates, a risk management consultancy and expert witness service provider. Mr. Quinley holds numerous certifications in insurance management, adjustment, and underwriting, among others. He has a master’s in government from William and Mary. Mr. Quinley, thank you for being on the show.

Kevin Quinley: It’s my pleasure. Thanks for the invite. 

Noah Bolmer: Of course. This series of panel discussions is on the topic of relationships. Every engagement is dependent not only upon expertise and experience, but it’s a web of interactions between members of the trial team and the expert. At the core is a relationship between witness and attorney. Mr. Quinley, how do you get off on the right foot with attorneys?

Kevin Quinley: That’s a good question. Let me take a minute to quickly hit on some ideas in no particular order. Number one, on the first call, be on more receive mode, than send mode. You’ve got one mouth and two ears. You’ve all heard that. Number two, ask good questions. What I mean by that is to assess your fit for the case such as the universe of documents that need to be reviewed, that’s very critical. Is there a scheduling order on the case? If so, what deadline dates for work product do those present? Is there a conflict check? Is the subject matter in your expertise area? Number three, it’s an audition, but I would say don’t be too salesy. If they ask you about your bona fides, feel free to explore those. Be interested. Be engaged with your energy up. Do your homework on the case, if you can, beforehand. What I mean is this. Sometimes you’ll get enough information on the case in advance of that audition phone call, you can either Google the case or if it’s a federal case, go on Pacer and look up information about the case. Doing a bit of homework can orient you to the contours of the case, the general thrust the case and enable you to ask smart questions. Get all deadlines cleared up front and don’t overcommit. That’s important. Be clear that you are not an opinion for hire. I always try to make clear that I won’t know what my opinions will be until, and unless I review the materials. I don’t guarantee a favorable opinion, but if I can’t give one, I will pick up the phone, not write to you, and explain it to you. Set the ground rules in a follow-up engagement in terms of the materials that you need. Be willing to sleep on it if it’s not time sensitive. There are times when I learn about a case, and I don’t want to be pressured into making a hasty decision and I buy myself some time. Usually one day. Then, I say, “Let me process what you’ve told me and look at the entire continuum of other obligations I currently have with other cases, professional meetings, personal vacation, and get back to you.” Being willing to say, “No thanks” and maybe recommend somebody else if you honestly self-search and don’t have the bandwidth. Those are some quick stream of consciousness tips on how to get off on the right foot with counsel.

Noah Bolmer: Dr. Brams same question. How do you like to get off on the right foot with the engaging attorney?

Dr. Jolie Brams: I think getting off of on the right foot starting at the beginning, and that means returning phone calls. Many, attorneys call me and say, “You were highly recommended but we’ve got two other people and you’re the only person that not only returned our phone call, but more importantly returned our phone call with some interest and knowledge on the other end.” Now, I’m fortunate. I have a practice director and if you have a busy forensic practice, I strongly recommend you get someone to work upfront because the busier you get, the more calls you’re going to have at all times of day and night. The more demands and the more reports to proof. What has promoted my business, and I don’t mean in the sales way, I mean in a professional manner, is not only my work, and again, I’m sure Mr. Quinley will agree with me, you have to be perfect in what you do. You have to be thorough. It’s what she does at the front end. She knows my business and understands civil and criminal litigation. When these people call, she vets and talks to them about who I am and what we can do. She generates not sales, but enthusiasm. She also sets, as Mr. Quinley states, limits, and boundaries. What are the expectations? What funding is available? All of those things. And she provides these people with other expert consultations and testimony that I’ve given. That upfront shows your practice to be professional and it creates a whole ambience for the rest of the consultation. That you are not somebody who was found on the street. That you’re a knowledgeable person, and the people who work with you will get things done for your case, for your clients. So that is the most important first step to me.

Noah Bolmer: Let’s talk about some of the intangibles that go along with those initial phone calls. Mr. Quinley, you had said not to be too salesy, can you go into that a little? How does somebody have a demeanor that shows professionalism but isn’t necessarily trying to pitch the attorney?

Kevin Quinley: It’s a fine line. A tightrope to walk. You want to be confident, but less promotional and more descriptive of what you what you bring to the table. If applicable, when I talk to prospective attorneys, we start covering that terrain. Obviously, I’ll volunteer to send them after the call a copy of my current CV and then I have a brief one-page, professional biography that gives them the Reader’s Digest version. I tell them I’ve been in this area for 47 years and written ten books on such and such a topic. I have been a contributing editor to some of the training textbooks used by national organization for training people in insurance claims. I’ve given three hundred presentations, been engaged in hundred and sixty cases, testified in fifty plus depositions, and fifteen trials. To give them those- that’s factual. It isn’t bragging if it’s true, but to be factual and to let them know this is not a hard sell. I’ll say that it’s not a hard sell. I’m not selling. You’re buying. I’d love to work with you if the stars align. We’ll get to that in terms of bandwidth, deadlines, and size of the universe of documents. That’s where you factually, if prompted, rather than being- but you know, spend most of that initial time listening and giving them an honest reaction as to whether you think you can be a resource or not, which is not exactly the same thing as warranting a favorable opinion. I always caveat my reactions by saying, “Based on what you’ve told me; I think there’s some traction there I might be able to help as a resource.” Even if you end up bailing on the case because you don’t think you can support them or there are weaknesses in the case, you’re providing a service for that. That’s a long-winded answer as to how to be more informational than promotional and augment that with a follow up. I loved the point that Dr. Brams made that you follow up as promised to with your CV and a fee schedule, and if they ask, a professional biography.

Noah Bolmer: Dr. Brams, any tips on demeanor?

Dr. Jolie Brams: Yes, the way that I look at everything I do in terms of the salesy issue, as Mr. Quinley talked about, it’s authentic marketing. It is who you are over the course of time. Now, Mr. Quinley states, he’s been doing this for 47 years. I’ve been doing it for 42 years. I don’t think we’re in a competition for age or looks. But for example, I had an attorney call me who I did know from before, from a nice, medium-sized firm. I’ve done several personal injury evaluations for them. They were stating how this woman had an accident and that she has significant emotional trauma from that. Given the nature of the accident, that’s understandable. He also mentioned that she was already on Social Security Disability. And he said that was for depression. Now, I know, because I’ve done this for more than 4 decades, it’s difficult to get SSI. She had to have another diagnosis besides depression and thus we need to look into her premorbid functioning more than just an assumption. There’s much more to it than meets the eye. That’s a simple example, but you have to use your years of knowledge to basically be the crystal ball. I have people call me up about cases, and I tell them what to do, and they’re like, “How did you know to do that?” Now, do I tell them what to do and get me involved sometimes? Many times- this is extremely important, especially if you have a long career ahead of you. Is you give information that is helpful without the expectation of getting that case. You become a colleague, and you make it very clear in that conversation, “I’ve given you this information about-”. I do a lot of death penalty work, many high-profile criminal cases, and I realize that not everything that anyone has to offer will cover all bases. What I say is, “Even if you don’t hire me for this, consider me a friend and colleague.” We always talk personally. “Where did you go to law school? Who do you know?” Have a real personal conversation and when they know this is not a pressure situation, because in truth, although I want to work with people, I don’t need the work. It’s always important to have that but that’s not the reason for the call. What I find is that years later- it could be 8 months later, it could be three years later- I either get a call back from them or someone they know, because I acted as a colleague and not someone who’s there just to provide a service. That is what the attorney-expert relationship should be. It should be colleagues. We have boundaries. We have demands. As Mr. Quinley states, we don’t get paid for an opinion, we get paid for our time and expertise. As a psychologist, I put that in my releases all the time. That we are paid for our time and expertise and not to provide an opinion. Sometimes, I hope we’ll talk about bad opinions because there’s always bad facts and bad opinions. There are ways to handle those that are proactive. It is a relationship and if you have an attorney who calls you and you don’t feel you can establish that relationship, it never ends up good.

Very briefly, there was an attorney that called me. I won’t give any more details. Who was perfectly nice on the phone. She was perfectly polite and appropriate but there was no way to establish any excitement about the case with her. No way to establish a connection. I did take that case and the case is terminated. It has been pled out, but it was a miserable experience for both of us, because I was looking for a collegial connection and some excitement about the case. She was factual and bland, and I don’t think it was a good mix. It wasn’t a good fit and it wasn’t from the beginning. Not that we did not help the clients, because I believe we did help the clients but in some ways, we could have been more effective and better had there been a mutual meeting of the minds.

Noah Bolmer: That’s an excellent segue way to red flags. What are the sorts of things- you’ve mentioned a few, Dr. Brams, regarding a lack of excitement. Somebody who doesn’t appear invested in the case. What are some of the other red flags that you look for during initial calls and maybe your first meetings together before you’ve accepted the engagement or when the engagement has just begun?

Dr. Jolie Brams: I think there are many red flags that you have to be experienced and willing to accept. Many people want consultative work and they are willing to overlook those red flags. One of them is a lack of curiosity when you talk to them about possible hypotheses and possible ways that a case can go. There are people who look at things very simply. About two months ago, I was contacted by a personal injury attorney who did not work for a personal injury firm. They worked for a corporate litigation firm, and they were asked to do this personal injury case by a client who spent, I don’t know, how much, probably a million a month easily. They were the firm that dealt with this client’s gigantic international business. I believe they were talked into dealing with this personal injury matter. I got a one sentence e-mail from the attorney who said, “What do you know about X, Y, or Z? If you’re interested call me.” That was it. No, “Dr. Brams?” No, “Thank you.” Nothing. We did contact him by e-mail, and he said, “All I need is do one of those psychological tests and give me a diagnosis.” I wrote him back and said, “A diagnosis means nothing in terms of personal injury. You have to look at functionality and history. There’s a vast amount- if you want to represent this person appropriately, it’s more than a diagnosis.” He wrote back an unpleasant e-mail stating that he found three other experts who knew what they were doing, and I did not know what I was doing. Now, the red flag was number one, that first e-mail. You don’t speak to anyone- you don’t speak to your little brother like that if he just bothers you. You don’t send anyone an e-mail like that. My second e-mail was as cursed as the first one. You don’t get to work with someone who’s convinced that all you want is a 10-minute evaluation for a diagnosis. The other issue was the fact they were a corporate litigation firm. What are they doing personal injury for? What I do is what Mr. Quinley does, I Google as I talk, and my practice director [will] Google as she talks. We Google the firm. She’s the one who told me initially that they were a corporate litigation firm. So, it did not work out, but those are red flags. Now, had I done this case and I had gone- first of all, legally, I have to go way beyond diagnosis. Professionally, I have to go way beyond a diagnosis. If I just listen to what he said for the money, I would be hurting my career, my reputation and I would not be helping that claimant.

Noah Bolmer: Mr. Quinley, same question, what are some of the red flags that you look for in initial conversations for a new engagement?

Kevin Quinley: I have my pet list, in no particular order. Number one would be unrealistic deadlines and timelines. I’m talking about the last minute, hair on fire, 11th hour engagements where they’ve known about the deadline for months and now, they’ve delegated some legal assistant or paralegal to find somebody who can fog a mirror. I’m sorry, I’m not McDonald’s. “Would you like fries with that?” We are professionals. I don’t put it that way to them, but inwardly my internal dialogue is WTF. What have you been, which is the legal abbreviation, you can fill in the blanks mentally. What have you been doing on this case for so long? Do I want to get into that environment? Enough said. Number 2, comments like this: “I’m shopping around for an expert”. I’m not in a gasoline price war. This is not a commodity environment. What I try to offer is a bespoke customized work product. If I get a sense that it’s a commodity or “My last expert bailed on me.” That’s a red flag. Now, there could be perfectly legitimate reasons. I’ve had them. Illness, death, whatever, but I need to know the context of why that prior expert is no longer on the case.

Another comment, “I will write the report and or disclosure for you. You just need to sign off on it.” I’m sorry. I don’t do business that way. I’m not going to, as Dr. Brams said, it’s my name and reputation on the line. If they say, “I’m going to make things easy for you. I’m going to write the report.” When the red light goes on and I’m sworn in to testify or walk into that courtroom the longest walking journey in the world from outside, with the bailiffs saying, “It’s your time, Mr. Quinley.” I’m the one who’s got to defend that. If they say, “I will write it for you.” To me that’s a red flag. Or “I need a report with an expert saying such and such.” Again, they want to channel my opinions into a prefab mold. No, it doesn’t work that way. I’m going to reach my own independent conclusion.

If they need another expert in an adjacent subject matter discipline, but they want me to go beyond my swim lane. Beyond the bounds of my professional expertise and basically get two experts for the price of one. For example, I work in insurance claims processes. Alot of these cases also involve insurance coverage, questions, and interpretations. That’s a somewhat adjacent but separate field. I consider myself an expert in one but not the other. Sometimes they are interrelated, and they want to push the boundaries of where I’m willing to go. Tire kickers, which appear to be focused inordinately on costs, budgets, and constraints. I understand the need for cost consciousness, but I don’t want to feel like I’m micromanaged or have to say, “Mother, may I?” before I do anything on a case. “How much will it cost? How long will it take?” It’ll take however long it takes. It will cost whatever it costs. My focus is on doing a thorough job, not on wondering. “Am I going to get a bill complaint here?”

A couple of final thoughts. I’ve had one or two firms that say, “We don’t pay retainers. Have a great day.” Then they’ve come back to me after trying to find an expert who will work for them without a retainer and said, “We’ll pay the retainer. I’ll prep you for the deposition on the morning of. I’ll meet you that morning-.” I don’t work like that. I tend to be OCD and there are issues that I want hashed out pre-deposition or pretrial with counsel. None of this stuff. I’ve made that mistake before at the beginning of my expert witness journey. “The morning of-” that doesn’t work. Finally, and I’ve had this happen in a couple of times where retaining counsel says, “The trial is a month away. Do not spend any time prepping.” Again, it doesn’t work that way. I’m going to spend time prepping because I’m the one who’s going to be called up there on the witness stand. I know it could be settled. It could be continued, whatever, but I’m going to prepare. We’ll deal with the billing issue later. I’ve embedded in my engagement letter various grounds for withdrawal from the case, and one is unreasonable constraints on my ability to perform my job, and I consider that an example. That’s a “little shop of horrors” tour of what I consider, personally, red flags.

Noah Bolmer: Some of the guests that I’ve interviewed have mentioned that one strategy or tactic that attorneys will sometimes use is to choose higher profile experts such as yourselves and just having that name attached to the case can drive the case towards a settlement. Has that happened to either of you, and if so, do you put anything in your contract to make sure that you get paid in case of a settlement?

Dr. Jolie Brams: I can answer that one. Yes, it does happen. Both in a good way and a bad way. It depends how what the lawyer understands. I have been used in cases, especially in criminal offense, as a checkbox. They have to hire a forensic psychologist, they do. They don’t really understand what you do or what you’re doing. I can talk about this because it’s on the news. I had a case where the attorneys in my view did not do what they were supposed to do. They used me as a check box and did not give me the resources I needed or the time that I needed. I don’t want to be a checkbox, and no one should do that, both for the clients as well as for yourself. I will have to laugh and state that someone with experience like myself or Mr. Quinley hiring someone like this sometimes does move a case along. And I’ve had cases where I’m like, “Oh great, I get to work with these people-” and this has happened three or four times in my career, and the minute they see me on their side, the opposing counsel just settles. As far as getting paid, I probably spent, you know, at that point 10 hours looking at the records and I billed them for what’s fair. So yes, I’ve been on both sides of cases and sometimes I’ve testified against people that are very- how could I put this, in your face type of people, nationally known people. And yes, it does put fear into the other side.

Kevin Quinley: I would have to confess, infrequently, that I have had a few cases where retaining counsel well into the case with some key deadline approaching has indicated to me that my presence on their side has helped spur case resolution. As much as I would like to think that my footprint is such that the sheer mention of my name is an intimidating factor to the opposition, I have to candidly say, I don’t know whether it’s flattery, I would discount that because being realistic. I have had feedback in maybe two cases out of 160 where I felt that happened. I’d love to see that happen, but I don’t have the hubris of buying into that and saying that, for that reason, it would scare off or have a material impact on case resolution or progress.

Dr. Jolie Brams: But you know Mr. Quinley, I believe the quality of an expert’s work does push towards settlement. I believe if you write an articulate report, if you do an articulate deposition, it clearly pushes towards settlement. From my perspective, I only think about the other side, whether it’s a plaintiff or defense attorney depending on who I’m retained by, or mainly in criminal cases, a prosecutor, you’re always thinking ten steps ahead. You write honestly. You perform honestly. The best expert in the world thinks ahead. They don’t think about what they have to say. They think about questions that people are going to ask.

Kevin Quinley: I totally agree, and then the decision turns on the quality of your work product rather than my brand name, however exalted I would like to think it is.

Noah Bolmer: Excellent points. We’ve accepted our engagement and we’re continuing on. It’s going to be a positive engagement. What makes for a positive relationship during the engagement once we have got beyond the initial phone calls and we’re right in the thick of it?

Dr. Jolie Brams: Someone told me the other day, Noah, that the best thing would be alcohol. That alcohol would definitely solidify our relationship. I’ve known him for about fifteen years, and I think our relationship is already solidified. When I knew this podcast was coming up, I thought that it would be something interesting to share. What he meant was, besides the fact that drinking is something he likes to do, I think that moving along means that we have to have consultations. You can’t have an expert do their thing and leave them alone. There has to be communication. The problem we run into is when there’s no communication. You’re not updated and there’s no hypothesis tested. You have to have a continuing dialogue with your expert as the case moves on.

Kevin Quinley: I love the focus on relationships because I think that is great and aspirational. However, I will also say that in this work you find a whole range of quirky personalities and sometimes when retaining counsel, they ain’t looking for a relationship. It’s more transactional. I try to be open to either style. I would love a relationship to start occupying that trusted advisor role that I think Dr. Brams has described, but not every attorney wants that. I’ve had some quirky, and among experts, you’ve got quirky personalities who might have the personality of a dead duck but they’re still very authoritative.

I’ll be briefer here, in terms of a recipe for positive interactions or relationships. Number one is to set clear expectations and that goes back to the engagement letter with the appropriate disclaimers about what you will and will not deliver or the boundaries of your subject matter expertise. No warranty of a favorable opinion or a case outcome.

Number two, over communicate. I agree with Dr. Brams, to over communicate with counsel. Err on the side of over communicating. I have found out by accident that my deposition is set for twenty some days ahead when the case has been set for trial. If I hadn’t checked in, how would I have found out? Be proactive about that.

Number three, if you’ve a jumbo bill coming, communicate with the client in advance. “This month’s bill, or this quarter’s bill, is going to be higher than normal, and here are the context factors for it. Big supplemental document production, some additional depositions, and the scope of the engagement has increased.” Never surprise the client with the size of the bill. Let them know beforehand, prepare them. It’s no guarantee, but it helps grease the skids on that.

Finally, and this echoes an earlier point. Be willing to pull the rip cord early, if you cannot help. Whatever counsel tells me on that first call I take with a grain of salt. Not because I assume they are liars, but as I say, the flattest pancake has two sides. When you are contacted by retaining counsel, they’re paid advocates. They’re giving you one side of the case, and I usually find out that it’s not black and white. As you dig into the case materials you find there are shades of gray, and if it’s so gray that you don’t think you can help, be willing, at an early point, to make that phone call and have that awkward but necessary conversation as to why “I don’t think I can help you. I’m not saying you don’t have a case, and you might be able to find another expert who disagrees with me who is willing to say it, but in fairness to you and in the interests of transparency, I don’t think I can help your case.” Sometimes it’s in a gray period or a gray phase where I will say, “I’ve analyzed how this insurance claim was handled. There are some problems here. Some aspects I can defend, others I can’t. I’m going to have to give ground where I must, so I don’t compromise my own credibility, and with an eye toward future cases and consistency. There are other aspects of the case that I can defend. If you’re okay with that, then let’s proceed on that basis with those caveats.” I’ve had counsel say, “You know, you’re right. I agree.”  Sometimes the- it’s the client who wants to fight it, but they understand. It may not be that you’re all in, or you’re all out, but you say- every case has strengths and weaknesses, and some of those weaknesses, you have to flag counsel and say, “I’m not going to joust at windmills on some of these points, but it will boost my credibility on those points I can defend.”

Noah Bolmer: Along those lines, as you’ve both stated, an expert’s duty is to the neutral truth, and you put that in your engagement letter. “I am not going to give you an opinion other than what my opinion is regardless of what you want my opinion to be.” You had just stated some of the methods that you use to give bad news to your engaging attorney and the end client. Dr. Brams, how do you go about communicating bad news to your engaging attorney?

Dr. Jolie Brams: I’ll be honest with you, I’ve had a couple of cases in the many years I’ve done this, that is truly bad news. There’s absolutely nothing that I or any other expert can do to help a defendant- that’s in criminal cases. There’s nothing that anyone can do in terms of sentencing. There’s nothing diagnostically. There’s nothing myself, or I believe, anyone else can do. However, bad news is not always bad news. There are cases I have where I do not believe my testimony is going to be helpful. I believe my testimony would be hurtful because we would be picking at straws. We would be taking little minute details and making them big things and that is going to make a jury not trust the attorneys [and] not trust me. However, there are things that I advise, and ask to be a consultant on the case to help that attorney deal with direct examination or cross examination.

I can give you a brief example. As you well know, there are many allegations of child sexual abuse in this country. Some of them seem valid. Some of them come from situations where there’s questionable reasons for the outcry. Many times, these children are being interviewed in small counties where the interviewing techniques can be coercive and contaminating. Obviously, there has been, if anyone knows this, four decades of research on this issue. Early in my career, I helped develop some of these interview techniques. If I believe that there is little information for you to testify about, but I believe that this county has not hired the right person or has the right protocols, and I think there are things that can help the attorneys bring that to the attention of the court, the jury, or whoever. I can help them look at the family dynamics. There are many ways that I can help besides testimony. Not everything that we do is testimony. And there are bad facts. Most of the cases I have [contain] bad facts. The people I work with are not very functional people. There are always bad facts. How do you deal with the fact that a defendant had a prior criminal history? How do you deal with the fact that in elementary school he broke a desk? What do you talk about? Well from my perspective, I would talk about the whys. We don’t hide facts; we deal with them. Our job is to deliver bad news, but yet, with good news with it. If at all possible, with some other way to be of assistance to that team or that attorney if possible. Yes, it is our job to deliver bad news. Many times, I’ll hear about a situation, and I will warn people up front, “I think that this might be more bad news than good news, but do not hide anything from me because [if] you hide something from me-” and that’s a huge issue, is hiding information. Because if you are on cross and don’t have everything given to you, you might as well not testify. You might as well lose the case for the attorney. Attorneys like to hide things, and I am very strident about that. I need to hear what’s happening.

Noah Bolmer: On occasion, it’ll be one expert and one attorney, and that’s straightforward. Often there are large trial teams with many moving parts. There may be multiple experts from different areas. There may be some experts in the same area. There may be paralegals. There may be assistants and many different people. To what extent do expert witnesses interact with the rest of the trial team? Do you prefer to try and work directly with the engaging attorney or is it okay for you to interface through an intermediary like a paralegal or an assistant?

Kevin Quinley: I feel comfortable with any of them. I think an effective expert witness needs to set aside job titles and treat anyone within that law firm structure as the client. Now, obviously I’d prefer to- depending on the context of substantive issues of the case, speak with the attorney, whether it’s a partner or associate on the case. If it’s logistical issues with regard to specific documents I need clarification on, additional documents, clarification on timelines, I think it’s important to contextualize the kind of information. I would say even when you’re dealing with the receptionist or whoever answers the phone, I try to be unfailingly respectful, polite, and essentially build good karma with every strata of the organization and hierarchy of that law firm as opposed to an elitist view that I only deal with the partner. I only deal with the attorney. If you’re curt, if you’re brusque, if you take out your frustration on one of the lower, less exalted members of that hierarchy, I don’t want them- I want those frontline people, whether it’s a paralegal, a legal assistant or receptionist to say, “Mr. Quinley is a pleasure to work with.” I always thank them and tell them to have a nice day. It sounds trite, but it helps in building this relationship with multiple constituencies within the firm saying, “He’s easy to do business with.”

Dr. Jolie Brams: That’s an excellent point and I’d like to elaborate on that. I believe that experts need to understand how attorneys work, and attorneys have to understand how we work. During the initial phone call, I need to set something up via Zoom with the attorney. I’m not going to hear about a case totally from a paralegal. That would not be appropriate because those mutual decisions and relationships cannot be established. But they have to understand how we work. I understand that attorneys are busy. I know the people I work with, and I understand the roles of various people in these firms. Like you, I’m nice and all those things are important, but to understand where you can get information from and who has to get authority to do certain things, is important. Many times, what I find is they didn’t understand what we do. They do not understand the amount of work it takes to do what we do. I’m not complaining, I’m grateful to be doing well and be respected, but I probably have gotten up at 5:00 in the morning for the last two months, desperately trying to get things done. I have a case on Friday. It might only be a fifty slide PowerPoint, but every one of those took tremendous research into the discovery consideration about how to make that, how to present it, how to organize it, what should not be in there. These are huge tasks. This is not getting up and taking 5 minutes to put together a little funny slide deck. In order to be ready to testify, to understand all of the timelines, issues, and people. There’s a tremendous amount that goes into this. I think attorneys need to know what it’s like to live our lives as well. How we conduct our business.

Many young forensic people get into this field, and they do not understand what attorneys do. And therefore, unlike Mr. Quinley, they don’t have a lot of respect for people. It’s like, “Get me to the partner. I don’t want to talk to you.” Whereas you can gather not only good points, but information and assistance from other people in that firm. It’s a mutual street. Knowing what we do, and we have to know what they do.

Kevin Quinley: That underscores a crucial point of being proactive in one’s communication with counsel. In other words, do not assume that they have top of mind awareness of your need for information as to the progress and status of the case, whether it’s a rebuttal report, a deposition date, a trial date, or a Daubert type of exclusionary motion that, deadline that “Oh, by the way” has been filed against you. Take the bull by the horns. Do not assume that they will inform you timely. Alot of them do, but don’t assume it. Put it on a regular follow up diary. Do a friendly check-in. “Is anything newsworthy on this case that I should be aware of? Do you envision any deadlines over the next 60 days that have implications for my role in the case?” That kind of regular follow up is no guarantee, but I see it as a safeguard. They don’t understand how we work and probably never will. That’s where you get experts together as therapy they share stories about these types of weird situations, but there are some ways to try to prevent them and preempt them.

Noah Bolmer: On the flip side, what else can attorneys do better vis-vis their experts?

Dr. Jolie Brams: I would say, be intellectually curious and educate yourself. I know that I can never do what Mr. Quinley does, I’m not going to be a risk assessment person. He’s not going to do what I do. But if we were both attorneys working on a case, I know that I would want to find out as much as possible about what I need from an expert and what an expert might do. Have a conversation with that person. Some of the things are commonality. If I talk about parenting styles, every attorney should have read Parenting magazine, or they should have listened to The Oprah Show and heard about these things. What I find is that the way to be an excellent expert in what I do is to read The New York Times every day, if possible. To listen and to learn about the world. In the job I have, I’m fortunate that I travel everywhere. I go to people’s homes. I sit in their in their trailers, their apartments, and at McDonald’s. I’ve heard stories and have had the blessing to be able to understand the world around me. It’s hard to just be an expert and to only know one field, and that’s all you know. You have to see things in a much bigger picture and attorneys to be good attorneys need to have a better understanding of more than just what they do every day. Cases are complicated, people are complicated, and you do your best when you are a worldly person.

Kevin Quinley: Because it’s complicated, be proactive. Again, I hate to sound like a broken record. Do not wait till the last minute. Do not treat your expert witnesses like the fast-food drive through at McDonald’s. We are professionals. We are not emergency- the expert equivalent of an emergency room, so be proactive. Get your experts lined up early. Be transparent. Be thorough.

Another mundane thing is to pay your freaking bills on time. Virtually all of my cases involve situations where somebody is claiming that the insurance company did not follow through on what it promised to do. I’ll be on, let’s say, the insurance carrier side of that. My engagement letter clearly spells out the timeline for payment of my invoices. When they ignore that, among other things, I appeal to their sense of fairness. “I’m trying to make a case that XYZ insurance company is a company that stands by its promises.” Here they’re delaying, foot dragging, and not living up to the commitment they signed on for at the beginning. Come on. Help me out here. It marginalizes- it sends a message to the experts sometimes, “You know, you really don’t matter. We just want the work product. We want the opinion. We want the access but pay you for your services mañana.” The lawyer is getting the paycheck, a draw, or a bonus. I’m not in a situation anymore where I have a paycheck. I’m fortunate, like Dr. Brams, that I’m busy. Still, pay your bills on time. Be early. Be transparent. Be thorough and be communicative with the expert.

Noah Bolmer: Without naming names, are there attorneys that you would not work with again? If so, how do you handle that when their firm contacts you?

Dr. Jolie Brams: That’s a difficult question, but I think it’s an important question. You mentioned firm but we could start off talking about individual attorneys.

Noah Bolmer: Sure.

Dr. Jolie Brams: You could either be gentle and factual, it will not go over well. Nothing you say is going to go over well. You could say something like, “We worked on this case three years ago I’ll be honest with you-” as Mr. Quinley was saying- “it took two years to get paid. I had to write to the judge to get paid. I was a little concerned that you were so busy you didn’t have time to discuss the case. I don’t think it went well, and I have other priorities right now. I can try to refer you to somebody else. That’s what I can do.” And they’re not going to like you, but you do not have to be forced into a situation again that you don’t want to work in. That happens to me. I work with a lot of small-town attorneys, especially in Ohio. Not that they’re bad people, but they are not up to par in terms of going- not just the billing, although they don’t always file that, but in terms of what Mr. Quinley is saying, staying in touch, having an interest in the case, and communicating. It’s a lot of work for nothing. As someone I know would say, “It’s too much sugar for a dime.” It’s too much. But no, are they not going to like you? And you have to say to yourself, “Does it matter? Do I really need this aggravation? I have other things to spend my time on.”

Kevin Quinley: That is a key point in terms of where you are in the life cycle of your career as an expert.

Dr. Jolie Brams: Yes.

Kevin Quinley: Frankly, if you’re starting out, trying to get traction, to get business, and trying to get cases. I have taken that 11th hour hair on fire assignments. I have taken cases with attorneys with whom I didn’t feel simpatico.

Dr. Jolie Brams: All of us have.

Kevin Quinley: Hopefully, you develop some positive snowball traction with your practice through word of mouth and you have a nice flow of cases, and you have the luxury of saying “Thanks, but no thanks.” To your original question, are there certain attorneys that you don’t want to work with? Absolutely, yes. Just like probably there are some attorneys who would not want to work with me again. I understand that. The situation that you frame calls for the utmost diplomacy and delicacy. I’m not sure how much detail the expert needs to get into. I think it certainly is- you thank them for thinking of you, but you can plead workload-

Dr. Jolie Brams: That’s true.

Kevin Quinley: -bandwidth constraints. There are many ways to say no diplomatically. You can offer them a copy of an article. You can recommend to them, another expert in your field, and be a resource that way. I would hesitate to get into the fact that they were foot dragging on bills, or difficult to work with. All of which may be true, but I think I would soft pedal that, not go there and have some plausible, legitimate other reason-

Dr. Jolie Brams: Yes.

Kevin Quinley: -not having the bandwidth because it happens to be that particular attorney. But-

Dr. Jolie Brams: But then, Mr. Quinley, they tell you they’re going to get continuance because they desperately want you. So, they get a continuance. I hear that all the time. They’ll get a continuance. But I want to talk about young forensic experts in whatever field. You’re right, there is a real goal that people have to have, and that is to do whatever is necessary to get experience. To have that experience, not just on your resume, but in your head. That they have done case after case, even if they are small cases, even if you don’t like the attorney, that you have that. But what some experts get into which is to be, as one of my colleague’s states, is a bottom feeder. Many people are stuck in their careers. Always working with small cases and attorneys who aren’t well known. Never getting a lot of word of mouth because of where they do it. We talked about marketing and sales. As Mr. Quinley stated at the beginning of this podcast, there is a point in time that you have to sell yourself if you’re young. It has to be done in a way of authenticity, of who you are. I would like to tell you that nowadays nobody looks at a newsletter. Nobody looks at e-mail. The only way that you are going to get referrals is by word of mouth. Maybe if you teach somewhere. I don’t think there’s anything wrong with being assertive and aggressive. If there’s an organization of attorneys, whether it’s local, your city bar group who meet for lunch every month or whatever it is. If you are at the beginning of your career, be willing to do that, you’ll meet people, learn a lot, and develop poise and expertise. It is difficult and you have to make sure that over your career you’re moving up and not moving sideways.

Kevin Quinley: The way to get those word-of-mouth referrals is by essentially doing a kick-ass job-

Dr. Jolie Brams: That’s right.

Kevin Quinley: -on those initial and subsequent cases. What do I mean by that? I mean you’re analytically thorough and impartial in looking at the case. That you meet every deadline without being a drama king or queen. That you provide as immaculate a written work product-

Dr. Jolie Brams: Yes

Kevin Quinley: –bulletproofed and vetted as you can. If it’s a full twenty-six report or a disclosure in state court that you are prepared or overprepared for that deposition. In the unlikely event, because I say one went out of ten of my cases actually go to trial, that likewise for trial, so such a kick ass job that when that case is over, whether they prevail or not. Whether they settle the case or not, they say to themselves and to colleagues “This guy or this lady, is the real deal.” You don’t do that by handing out cards at trade [com] although there’s a role for that, but your work product, your timeliness, your ease of doing business with the quality of your analysis, the thoroughness of your report, your rapport, your soft skills, your testimonial preparation and performance within those highly stylized forums, I call it a performance art. Giving testimony and trial are related, but not quite identical performance arts. Hopefully, the more comfortable you become, and the better you become. Always have a growth mindset of improving upon the last. I look at reports and testimony from ten years ago. It’s cringe worthy now that I look back on it because at the time I was relatively green. That’s not to say I’m at some exalted stage right now. The point is, it’s an iterative process. You’re learning and you’re trying to improve each time.

Dr. Jolie Brams: You’re articulate in what you say. I agree with everything that you share. They’re words, and you have to practice them, but you practice them by understanding the absolute importance of what we’re doing in this field. What we’re doing is we’re keeping our judicial system alive, which is what makes us a democracy. It’s what makes us a civilized society. The judicial system is the basis of everything. For me it’s the basis of someone’s life. For you, maybe Mr. Quinley, it’s more financial. What you’re doing has to do with more keeping business appropriate and people getting the right- whether it’s a business or a person getting the right outcome. Whatever it is, we have a real responsibility to do what we do, and a forensic expert has to understand that. That’s part of as we mentor our colleagues and we’re at the point that we do mentor, I think that’s important.

As a personal story and about what this gentleman is sharing, about six months ago I got a call from an attorney, and I barely recognized his name. I kind of knew who he was. He was local and he had been on the other side of a case that I was on. Once he told me that, I realized who he was. I said, “Why are you calling me?” He said- because they lost big time. He said, “You are the best person I’ve ever known.” He said, “I want to hire you for my case on this side.” He was able to get over “losing”, knowing that I had the qualifications and the ability to make to the other side more successful.

Kevin Quinley: That’s the ultimate compliment, I would say.

Dr. Jolie Brams: Yes.

Kevin Quinley: When you have an opposing counsel on a former case reaches out to you because of how impressed he or she was with your performance. That is the ultimate compliment.

Dr. Jolie Brams: It is. I certainly took it that way. What we’re saying here is that being an expert witness is not just an easy job. It’s a job that has enormous responsibility and attorneys have the obligation to choose and work with the right person. We as experts have an opportunity, and we have an obligation that’s the same, to choose and work with the right people and to do justice where it’s served. And to be thorough, honest, and independent. Those are difficult things to do because we’re all faced with money, wanting to win, and pressures. The more we resist those, I believe the better it is for everybody.

Kevin Quinley: That’s a great articulation of the big picture role of expert witnesses. I don’t think I’ve ever heard it expressed better. We do have a positive role and to not get hung up on winning or losing. I’ve written about this, and I’ve talked about this with fellow experts. I’ve been on the losing side and it’s always more fun to be on the winning team.

Dr. Jolie Brams: Of course.

Kevin Quinley: I have had cases where I tried to do a kick ass job and they still lost, and I’ve had other cases. I try not to get hung up on the end result. I’m focused on the process. My process of preparation and my process of testifying to do the best job I can but realize I’m a bit player in a larger drama here. It’s not my case to win or lose. The fate of the case, or Western Civilization, does not rest upon my shoulders, but I’m going to do the best job I can. Whether that helps or hurts. Whether the trial is a win or a loss. I have no control over that. I’m going to move on one way or the other.

Dr. Jolie Brams: I got lambasted in court last week about being emotionally involved with the defendants. Not sexually, nothing inappropriate, but having emotional feelings about that person. The psychological experts on the other side were what I call formulaic. They went in and did their job. It could have been- they could be doing it to a lamp post. It didn’t matter. There was no connection. Whereas I understood what this person went through. I did feel sorry. I did have an emotional investment. In criminal and civil work, you have to have an emotional investment. In death penalty work, they say you need to love your client. I believe there’s some truth in that. You have to, because if you don’t love your client, the jury is not going to love your client. From an expert perspective, everything is not just science and it’s not just scientific articles, numbers, or standard deviations. That person is a person, whether it’s in a personal injury claim or in a criminal case. And somehow, the uniqueness of that person has to be conveyed. And it’s difficult, at least for me, if not impossible, not to have some feelings of empathy for people. Not to be able to imagine what it’s like to have lived their lives, and I do believe we have to have some care and concern, even from an insurance perspective.

I had a case where there were a number of preschools that were being sued. They were owned by one person, and something happened at the daycare, which was probably out of the owners- it’s liability because they own it, but they didn’t cause this to happen. When you look at that case, whether from a defense perspective, or a plaintiff perspective, these people who worked their whole lives to build this business are going to lose that business. There’s a responsibility there to tell the truth. There’s a responsibility there to try to engage the judicial system to come out with a fair outcome. Because these are people’s lives. Most things that experts do affect people, whether it’s through a business in one way or another.

Noah Bolmer: Before we wind up, I do want to address our post-trial or post-engagement practices. Sometimes expert witnesses only have their one shining moment. Their one day in court, long before a case finishes. Is there anything that you do after a case to see if it went to settlement? To see who won? Do you contact the attorney and ask how your performance was? What do you do after an engagement?

Dr. Jolie Brams: Good question. Most of the time, I don’t know Mr. Quinley’s experience, many attorneys, even if they get along well with you, they don’t tell you what happens at the end. They don’t call you up and say, “We got a good settlement.” Or “This is what happened.” You never hear from them. Many times, I’m curious and I’ll call. I want to know if anything I did hurt or help the case and learn from it. Obviously, I’m concerned and interested in what happened, but I’m also interested in how they think I did. I don’t mean for complimentary purposes necessarily. I want to know what a juror thought and what they felt. So yes, follow up is not only good for the attorney relationship, but in terms of developing our skills and understanding what works and what doesn’t.

Noah Bolmer: What form does that follow up take?

Dr. Jolie Brams: I don’t know if it matters. In my opinion it depends. I’ve called people up, but people are busy. I’ve emailed people and said, “If you get a minute, please call me.”

Kevin Quinley: You have to calibrate that to the communication style and the realization that these are very busy people. I don’t want to put them on the spot, and I think that a phone call is more likely to do that than an e-mail where they can be reflective versus reactive. I struggle with institutionalizing this as a discipline because it is so tempting to move on to the next case. There are a couple of things that I recommend and do. Number one, don’t “ask” for feedback. People feel challenged and, on the spot, when you ask for feedback. But if you ask them for suggestions, I know it’s small phrasing, but Daniel Pink has this whole thing he does for feedback. After the case, ask people, “How can I improve? What suggestions might you have for me to improve my reports, my testimony at the deposition, and my trial performance?” I don’t need an instant answer necessarily, but to pose those perhaps in written form and not to ask for feedback, but to ask them for that. People love to give suggestions, but feedback is a whole different connotation.

Number two, it’s important to follow-up to make sure that there have been no Daubert type exclusionary motions that were filed and ruled on. I’ve had cases where I’ve gone on my merry way and got good vibes from retaining counsel. I found out months or years later that there was judge’s ruling who, as an aside- it’s never because I’m not qualified, but because some opinion that I gave they considered to be a “legal opinion” even though my reports say I’m not an attorney. I’m not giving legal advice, and I didn’t agree that happens to be a legal opinion, but that’s part of your, as your permanent record as an expert. I’ve been surprised in subsequent cases. “Do you know that in the case of XYZ versus so and so in Colorado, the judge ruled . . .?” “No, because counsel hadn’t told me.” Now, I’ve learned to put in my engagement letter that they must inform me promptly of any Daubert type or exclusionary motion. Now, how you enforce it, between you and me, that’s the difficult thing. What’s going to be your sanction? The case is long gone. The cow has escaped from the barn. The bell has been rung, but still to have that, if nothing else for your peace of mind, or to be armed when it’s thrown back in your face, and your nose is shoved in it. It’s important to stay in touch. Put it on recurring diary to check in with the firm or the attorney. If you’ve seen an article or if you’ve written an article, it’s an ongoing part of your thought leadership. If you’re publishing, I agree, newsletters are probably overrated. If you continue to write. If you continue to speak and continue to read material you can have an excuse to check in with counsel, put it on a quarterly diary to check in and cultivate through repetition like water on stone, top of mind awareness on the part of the attorneys who are positioned to send you business.

Dr. Jolie Brams: Always remember that they have all your transcripts from years and years ago. They’re all available and that you will be quoted on that. It’s difficult to remember the names and facts of every case. I was confronted for a case from 1993. Let me think, ninety-three, that was what twenty years ago, easily twenty years ago. Even more than that. It was 1993.

Noah Bolmer: Thirty.

Dr. Jolie Brams: Thirty years ago, and they were yelling at me, why I don’t remember the details, but I did remember the details. They handed me the State Supreme Court decision. I saw the name and was able to describe the person. I knew how many people he had killed. I knew what county it was in. I didn’t remember everything. I knew things like what problems the mom had very generally. They will ask you all kinds of things, and it’s difficult to be consistent with every answer that you give. They will pull all that out. What we’re talking about here is to have a relationship with an attorney, that they are listening, and know how to confront that, and have looked at your life and work enough to be able to understand what you do.

Kevin Quinley: To get out ahead of that, I always try to cover before testimony with counsel, “I’ve written seven hundred plus articles over three or four decades.

Dr. Jolie Brams: Right.

Kevin Quinley: I don’t have photographic recall of them and my views on certain things have probably evolved over the years.” Like a doctor who’s been in practice for forty years, is he or she going to see medicine the same way as they did fresh out of med school? Or an attorney practicing. It’s a good thing for those of you to evolve. I was in trial in Norfolk County, Massachusetts in the summer of 2017, and the opposing counsel quoted something that I had written in the 1980’s. That’s fair game because when I was doing all this writing, I had no grand design to ever be an expert witness. Not that it would have changed things. It was that visibility that propelled me to a level of visibility where firms and attorneys, unsolicited, started contacting me to serve as an expert witness. All of which is to say, I can’t guarantee that they can’t find something in that haystack of material to use to impeach me. That’s where looking at the context of the article comes in or the book. Looking at how long ago it was and whether your thinking has evolved and whether the circumstances would apply in the current case. That’s all fair game, as is former testimony but I try to preempt that and say, “They may dredge up some stuff. I can’t say that they won’t, but we’ll have to deal with it.”

Noah Bolmer: It has been an absolutely informative and elucidating experience having this panel with both of you. Before we wrap up, do you have any last advice for expert witnesses, in particular newer expert witnesses or attorneys working with experts?

Dr. Jolie Brams: It’s a difficult area to break into because everybody wants to do it or believes they can do it. I can’t speak for insurance issues or whatever, but obviously having a career prior to doing this is important. To jump into forensic work as a youth right out of school is difficult to do. I’ve testified against people that have two or three years out, and they do not have the breadth of experience. My guess would be, in my limited profession, is working somewhere first is very important. Whether it’s a prison setting or in a private practice, whatever that might be. It’s very difficult to jump into. My word of warning would be if you jump into this too early, you’re going to make some serious mistakes. Expert witness testimony is a responsibility and it’s a complex responsibility. And if you really want to get into it, I believe in mentoring, you could be mentored by someone. You could do parts of other people’s cases. You can do part of their research. You can do a lot of different things, but if you think you’re going to be a TV star at age 27, that’s probably not going to happen.

Kevin Quinley: I agree. It’s sort of a chicken and egg situation because to get the experience, you got to get the case, and to get the case people are looking for experience. What I would say is technical mastery of your subject matter domain is not enough. Those are table stakes. To be effective, you need a blend of hard skills. That’s where the technical expertise comes in, and soft skills in terms of communication, diplomacy, and emotional intelligence. Let me put it this way. There are people who I think have vastly greater knowledge of insurance and insurance claims than me, but they are not cut out- maybe they dip their toes in that water at one time, but they have no appetite for the rough and tumble of the litigation system, the adversarial system. You’ve got to have a thick skin because you’re working with smart people. That’s a non-financial benefit of the job. The flip side is you’ve got extremely smart people on the other side who are preparing for weeks to make you look uninformed, inconsistent, and incompetent. Not everyone has the appetite or tolerance for that. The table stakes are having the credentials, having the years of experience, maybe a few gray hairs that the publishing, the speaking, the chops, the bona fides, and the availability. To know that this is a stylized kind of writing, it’s a certain performance art when it comes to testifying. If you’ve got a big ego or if you’re thin skinned and can’t work under stress, can’t work under deadline, can’t work with some quirky people, but they’re paying your bills. You got to have a tolerance for all of that that maybe is where the emotional quotient, EQ, comes in.

Dr. Jolie Brams: I agree with that, and you stated that incredibly articulately because this is not a regular job and with regular demands. It stretches your moral life, your cognitive life, your emotional life, your personal life, and your time. This is not being famous and getting up on the stand. It’s serious. The things we talked about today, about the relationships- I mean, Noah started this off talking about relationships. It is a relationship based. It’s also a relationship with the jury. We haven’t talked about that. The bottom line is you have to be able to establish a relationship with the jury. You have to know how to communicate in a way that other people can understand. That’s the emotional skills. A lot of people get up there with technical slides, numbers, standard deviations, and Lord knows what. What they wanted to know is that this was unfair. Here’s the six reasons why. We have to think about our audience as well as our lawyers and everybody else. Thank you, Noah.

Noah Bolmer: Dr. Brams, Mr. Quinley, thank you for joining me for today’s panel.

Dr. Jolie Brams: Thank you very much.

Kevin Quinley: Thank you all.

Noah Bolmer: As always, thank you to our listeners for joining us for another episode of Engaging Experts.

Dr. Jolie Brams and Mr. Kevin Quinley

Dr. Jolie Brams is the owner of Brams and Associates, a psychology practice and forensic psychology consulting firm, with extensive experience in both criminal and civil matters ranging from state and federal sentencing to educational litigation and beyond, Dr. Brams holds a doctorate in clinical psychology from Michigan State.  Mr. Kevin Quinley is the founder of Quinley Risk Associates, a risk management consultancy and expert witness service provider. Mr. Quinley holds numerous certifications in insurance management, adjustment, and underwriting. He has a master’s in government from William and Mary.