In this episode…

It’s easy to get shaken up as a new expert, according to Ms. Merrill Cohen. She recalls getting annoyed at opposing counsel when they’d ask the same question over and over, changing a word or two to try and obtain a different answer. These days, it’s just a matter of answering honestly, “you get paid for every time you have to answer”, she reasons.

Check out the entire episode for our discussion on red flags, freebie consultations, and controlling your testifying demeanor.

 

Note:  Transcript has been lightly edited for clarity

Host:  Noah Bolmer, Round Table Group

Guest: Ms. Merrill Cohen, Vocational Rehabilitation Consultant for Strategic Consulting Services

Noah Bolmer: Welcome to Engaging Experts. I’m your host Noah Bolmer, and I’m excited to welcome Ms. Merrill Cohen to the show. Ms. Cohen is a vocational consultant and life care planner for Strategic Consulting Services. She’s an experienced expert witness in federal and state courts, a certified rehabilitation counselor, and a certified life care planner. Ms. Cohen holds a master’s in counseling from Seattle University. Ms. Cohen, thank you for joining me.

Merrill Cohen: Thank you for inviting me.

Noah Bolmer: You’ve been engaged as a life care planner since the early 1990s. How did you first become involved in expert witnessing?

Merrill Cohen: My primary field is vocational rehabilitation, and that was where I started as an expert. I was working as a work rehab counselor working with people who were injured under the Washington Workers Compensation System doing the assignments that we were required to do in terms of assisting them with returning to work. Evaluating whether or not they have skills for work. Whether or not they would be eligible for retraining and those kinds of things. I was going about my regular work and two things happened. One of my cases, a worker’s comp case, was an electrician who was in a motor vehicle accident and that was his L&I (labor and industries) case. But he had a third-party case, and his third-party attorney asked if I would be an expert in the civil case. Since I was already working with him on the worker’s comp. That was my first actual case. The owners of the company I was working for at the time were involved in expert work, so they were able to guide me. Once I got my foot in the door, they opened other doors for me and helped me expand that aspect of my work.

Noah Bolmer: When you say, they opened the door for you, did they show you the ropes? What are the things that expert witness’ benefit from in terms of mentoring, in terms of things to ask during their first engagement from somebody who’s already been there.

Merrill Cohen: Honestly, the first thing that we benefit from is getting work.

Noah Bolmer: Of course.

Merrill Cohen: How does anybody even know that you’re an expert, especially in this field? In Washington state, L&I for example, labor industries, there are hundreds of vocational rehabilitation counselors that work in that arena. Which one of them, if any, are you going to call to be an expert in a legal case? I’m going to say the main thing that my bosses did for me was promote me. They were both in a position where they wanted to work less. They introduced me to their referral base one by one. Once you do one or two cases and they like you, then the attorneys will recommend you to other attorneys. That has to happen first and along the way it’s great to have somebody you can ask questions, get little pearls of wisdom, and encouragement. However, experience is something that you have to earn. You can’t buy it. You can’t borrow it. There were many times early on it I was like, “Why didn’t I know that?” You have to make mistakes and learn from them. You can’t get it from just reading or talking to somebody, but they absolutely helped me along the way.

Noah Bolmer: You have to make mistakes. I want to ask you one of the most uncomfortable, but useful questions that I ask my guests. What are some of those mistakes and what are some of the red flags? What are some of the things that can go wrong as an experienced professional, but not necessarily inexperienced expert witnesses.

Merrill Cohen: There’s a lot. I can start by reflecting on some of the things that I did wrong early on. Let’s take the little things. For example, in a deposition, the opposing counsel will ask me a question. I give them an answer, and they ask it again and maybe they change the wording. They try to point me in the direction of answering it in the way they want. Early on, I would get annoyed. I would say, “I said that already.” or “As I testified to” and that was wrong. I mean, they’re paying me. If they want me to say the same thing twelve times while they pay me, what do I care? It’s an attitude shift. That’s an example of knowing what to ask. Another mistake I made early on, that bit me once or twice, was not being provided with all the information that’s out there. For example, opposing expert reports. Being left out to dry when you’re deposed. They would say, “Are you aware of the reports from doctors X, Y, and Z?” I’d say, “No, I didn’t know anything about them.” It’s much better to know what they say and be prepared to address it one way or the other. Now I make sure after I’ve received a file, if there are no opposing expert reports or if things are missing that I know exist and they didn’t give them to me, now I ask for them.

Noah Bolmer: You recommend a proactive approach in terms of talking to your attorney and making sure that you are fully equipped to write your own reports. Be ready on the stand when they hit you with some of what the opposing side says.

Merrill Cohen: Don’t hide anything. I’ll tell you a story from early on. You told me people like stories, so-

Noah Bolmer: They love stories.

Merrill Cohen: I forget everything about the case, per se, but I was being deposed, and I recall that in my characterization of the plaintiff, she was a good worker, blah, blah. I gave my opinion based on that assessment and the attorneys opposing me whipped out a sheet of paper, which was something like an employee review that showed she was always late and was on the verge of being fired and all that stuff. He said, “Now that you’ve seen that would that change your opinion?” I gave a classic answer, “It may. I don’t know.” The attorney who hired me was upset that I backed off my opinion, which of course I hadn’t, but I was even more upset that he hadn’t given me all the information, so I could address it head on.

Noah Bolmer: Let’s back up for a moment and talk about those initial engagement phone calls. Do you do those for free when somebody gets you on the phone and wants to hit you with some of the facts of their case to see if you’re the right person? Do you give them an initial free consultation?

Merrill Cohen: Absolutely. If somebody doesn’t spend the time, that can be bad. You’re making me think of all these stories. Here’s a story from early on. One of my bosses said, “My colleague will do this for you.” We set up the case and this is way before video and COVID. This was a case of a young man who went to Alaska in the summer, did some fishing, and had an injury on a fishing boat. I don’t know anything about it. They made plans for him to fly out from New York, where he lives, to meet with me in Washington state and get the evaluation going. It turned out that if we had had an initial discussion, this would not have happened. The guy was a college student who had an upper arm injury. It was unsightly and he needed to wear long sleeves. He was not a fisherman and there was no impact on his future earnings. In fact, he was in a bachelor’s in business program, which is exactly what I would have recommended for him had he not been in one. The lawyer was mad that he had spent all this money to send him to Washington State, but he didn’t take the time to talk to us about what the case was. If he had spent 15 minutes, we would have said, “No. There’s nothing we can do to help you.”

Noah Bolmer: It’s important because many people don’t realize that it is a two-way vetting process. It’s not just the attorney who is vetting you, but it’s you vetting the attorney. Is this somebody that I want to work with? Do I have the appropriate experience to be able to opine on this fact pattern? What are some of the questions that you like to ask engaging attorneys to make sure that you are an appropriate expert witness for an engagement?

Merrill Cohen: Great question. I like to understand the basic fact pattern of the case, because often the attorneys don’t understand this process. Early on, the attorneys taught me a lot. Now I’m teaching the attorneys a lot they don’t understand why I need a medical foundation to develop a vocational opinion. Often, I’m helping them, and saying, “You don’t have this.” “You don’t have that. You want to have a function of capacity evaluation done and see how that turns out. Then we can decide if a vocational analysis makes sense. At least and then we’ll have some foundation to do one.” I don’t want to just have somebody say “Here’s the case” and me say, “Okay.” Then I end up in that situation where I’m like, are you kidding me? What do you want me to do with this? We don’t have the foundation worked up and we’re coming up on a discovery deadline.” They’re looking for a medical expert to get in with, and it has become a big cluster.

Noah Bolmer: Do you find that’s a problem where attorneys want to engage you with insufficient time to be able to review the case, form an opinion, write your expert witness report, and prepare for any depositions and cross examinations that there might be going forward. Do you feel that you typically are engaged in a timely enough manner that you have enough time for all of that?

Merrill Cohen: It’s all over the map. Often, I have plenty of time, but even if I’m engaged early, and I can be engaged early, but if they’re waiting for their medical expert report and that doesn’t come until we’re up against a deadline, then I’m still rushed. I couldn’t have done anything without that. Things appear to be referred in plenty of time often end up becoming a rush anyway, but if I do get a quick turnover case, it’s up to me to take it or not. I can say, “Sorry” but what I have done is implement a rush fee and I’ve left it in our fee agreement vaguely that if turn around is less than two weeks from date of referral, a rush fee of 20 to 50% may be imposed. It depends on how big of a rush and how busy I am. I use my judgment. It’s like what it is worth to me to take on this project and then I tell them at the time, so, they’re not shocked when they get the bill. In fact, I just got one from one of these referral-like panels. “Can you do this case? They need it on the 7th.” I will do it but tell them there is a 25% rush fee if they want to do it. That’s helped.

Noah Bolmer: That’s not uncommon. I’ve heard from other experts that rush fees are a reasonable expense. It’s something that you incur. You might need to push some other work out that you have along those lines. Are there any other terms that you like to have in your contracts? For example, do you like to take a retainer, or do you charge flat fees? Do you have special travel terms? What’s your billing mechanism?

Merrill Cohen: Almost all of the above. We do have a non-refundable retainer. I know that not everyone does. There are a couple reasons why. I work for a company where there are several of us that do expert work, and we won’t oppose each other. This happened a couple of times where I’ve done a conflict check to set up a case, and I’m like, “Sorry. Jennifer has it from the defense. I can’t take it.” We’re taken off the street, all of us, when one side hires us. It’s not fundable.

Noah Bolmer: Sure.

Merrill Cohen: To get that case in our database, we know there’s a conflict in terms of a flat fee. We do a flat fee for one kind of case, and this also comes from experience. That’s marital dissolution because the lawyers don’t pay. The divorcing parties pay. We learned early on, we’re not going to chase Mr. or Mrs. Divorcee up for money. Not only is it a flat rate, but it’s also prepaid and ten hours at our litigation rate. If it takes me 5 hours, I’m getting paid ten. If it takes me twenty-five hours, I’m getting paid ten up until trial. If we do have to do additional work and testify, there’s additional. Then we do bill that. So flat rate, there’s a retainer- my rate for travel time is just our professional rate I say or negotiated daily rate, because if we’re to be going- for example, I just went down to the southern part of Washington State, and I did not bill for the three-hour train trip each way. I can make a negotiated rate, but we don’t have a lower hourly rate for travel.

Noah Bolmer: Have you ever had any difficulty getting paid, and if so, how did you go about making sure that you did?

Merrill Cohen: Yes. I’ve been at this a long time, so it hasn’t happened [more than] once or twice. I can think of at least once where we- which you don’t want to go to collections because you don’t benefit from it. I did have to send an account to collections because you can only threaten so much before you’re the expert who cried collections, so to speak. There’s nothing else you can do to try to make your point. That has happened. The other thing that we have in our retainer agreement, which I haven’t seen elsewhere, is because we may have multiple cases from a firm, would we say if your account is in arrears more than 60 days or whatever it is, we’re going to stop work on any case from your firm. Your account has to be current. If it’s not current, we’re not going to go to trial. We’re not going to do more work because we want to get paid so that that helps. I did have one case a long time ago, where he hadn’t paid. It was a worker’s comp appeal in like an administrative law judge kind of thing. He hadn’t paid and I said, “I’m not going to hearing.” He paid up and I got free pay for the hearing. You better pay me before the testimony because I don’t trust you.

Noah Bolmer: Let’s talk about preparation a bit. I’ve heard [many] things from [many] of my guests [about their pre-deposition or pretrial routines.] Some like to meditate. Some have ten cups of coffee. Some don’t eat breakfast and others listen to loud music. Do you have any pre-deposition or pre-trial routine that works for you? That gets you in the right headspace or zone?

Merrill Cohen: If you review your notes, your reports, and if you have confidence in your facts and your opinions, there’s no reason to be bent out of shape about it. I say that now, after 35 years at this. I never had any superstition. It’s just making sure that I’m prepared. That’s the key.

Noah Bolmer: What preparation do you do? Obviously, you need to be familiar with everything, but the day before the trial, do you review your notes? How do you make sure that you’re ready to go into it? That you have everything you need [to] feel comfortable and nobody’s going to shake you up on the stand?

Merrill Cohen: If I’ve been deposed before trial, I make sure I read my deposition because there’s the “I got you. You said this in your deposition, and now you’re saying that.” Often, they take it completely out of context. They’ll read half of a sentence. I always read my own deposition, as painful as that may be. The only thing worse than being deposed is reading your own answers. Sometimes I read them and I’m like, “That was so brilliant.” Other times I’m like, “Oh my God, I can’t believe you said that” I’ll read my report, and I’ll read the opposing experts report, and do the things that are most natural.

Noah Bolmer: Speaking of familiarizing yourself with the things that you’ve said and written, you’ve been doing this for a long time and said a lot of things. Maybe you have social media, or maybe you’ve been published. Do you ever worry that you’ve said something thirty years ago that you might contradict or be taken out of context? Maybe better information became and became available, and you changed your mind. How do you deal with those sorts of eventuality?

Merrill Cohen: I almost feel like these questions were a setup because I have good stories for all of them. One of the pearls of wisdom that my mentor gave me when I was brand new was don’t fall on your sword for anybody. In other words, don’t let anybody push you to go beyond what is reasonable. I have had a relatively conservative approach no matter which side I’m on and that has benefited me. Here is my story. It seems like they’re all fishing cases, and I haven’t done fishing cases now for about 15 years, but it was an American case. It was in a federal court. It was a bench trial, and I was the plaintiff’s expert. The counsel for the defense who I familiar with said to me, “Miss Cohen, isn’t it true in another matter, similar to this, you testified that the best measure of preinjury earning capacity is demonstrated earnings?” I looked at him and said, “No, that is not true.” He moved off of it, because I know what I had said is, “One of the best measures.” I never would categorically say that because I don’t believe it and he knew I didn’t say it. He figured I would think I said it because I almost said it. He tried to get me by “Oh, you’re saying this now, but you said that then.” I was like, “No, I didn’t say that then, so move on.”

Noah Bolmer: Well played.

Merrill Cohen: That’s an important piece. Whatever you say they can, they can get, and if it’s inconsistent- I see other experts that go to the extreme on both ends, and I honestly don’t understand how they get away with it, but I’m very careful not to do that.

Noah Bolmer: Let’s talk about trial teams. [Many] newer experts don’t realize that there are many moving parts to larger trial teams. There might not be just the lead attorney, but another attorney. There might be paralegals. There might be a whole host of expert witnesses who are experts in certain fields when you are on a larger case. To the extent that you’re working with the trial team, how much interaction is there between you and other experts and between you and all of the attorneys between you and the trial team at large?

Merrill Cohen: Absolutely. In fact, I can’t remember the names of the people that call me. This is Joe Schmo from this big firm, and there could be three, four, or five attorneys that I talked to on the case. That’s typical. As far as other experts, I’m in the middle of the expert sandwich in my field. The bottom or first piece of bread is the medical. They’re going to lay the foundation for my vocational opinions or a life care plan. Then, I’m the filling on the sandwich and the top piece of bread is the economist. They are going to take my numbers, crunch them up and give them that one beautiful number that represents damages. There is communication between me at the billing. I talk to everybody if I need to. I only talk to doctors if their reports do not specify some of the things that I need. If I need clarification or something along those lines. Unfortunately, I only talk to economists, and this happens often, when we’re all up against the deadline. They have the same deadline as I do so I have to get my work to them so they can get theirs out. I’m frantically trying to get there so I can give them my numbers while I’m still writing the narrative report. It’s like, here’s what I think you [need] to do your report while I do my report. There’s definitely some collaboration there.

Noah Bolmer: Is the report collaborative or does each expert have their own report in their area?

Merrill Cohen: Each expert has their own report, but they’re utilizing the reports of the other experts. I’m building my report on the medical foundation, and the economist is building their report on my report. That’s how I’m supposed to be. That said, some lawyers don’t get that, and they have hired an economist first, who does a report with basically some assumptions that the lawyer gives them. Then they realize, “I need a [voc] expert. The other side has a [voc] expert. Then I do my piece that considers mitigating earnings and then the economist has to redo their report because we’re not saying the same thing. By the same token, I’ve had cases where I’m rebutting an economist because let’s say a plaintiff hires an economist and tells the economist, “Here’s all the documentation for what this guy earned and he’s never going to work again. Give me the loss.” No economist can evaluate whether or not there’s some mitigation possible or there other earnings he would be capable of. The defense hires me essentially to challenge that assumption that they’re never going to work again. It’s like, “No, maybe they can’t do X, but they can do Y & Z, and this is what those jobs pay.” Those are some examples of the interplay between the experts.

Noah Bolmer: Do you ever find yourself across the table from an expert that you know personally? Somebody who does what you do but is working for the other side, and if so, what’s that dynamic like?

Merrill Cohen: All the time. I mean, I don’t see them. We’re not in court at the same time but it’s- especially locally, it’s a small pond that we’re swimming in and we all know each other.

Noah Bolmer: Does that cause any difficulties or are you able to use that information [and say], “I know this person, and these are the things they’re going to bring up. Maybe our trial strategy should be X, Y, or Z because we’re going against this person.” Are you able to use that to your advantage?

Merrill Cohen: I could say that I don’t even need to read the reports before I know what it says. That’s not certain. Many of them on the other hand- I’ll give you a different perspective. There’s a thing where if one side lists vocational experts the other side immediately thinks they have to hire one. I was called to a divorce case because the other party had hired a particular vocational expert for the case, and I said, “Who did they hire?” She told me, and I said, “Maybe you don’t want to hire me until you read his report because he’s reasonable, and you might not disagree.” In a divorce case, it’s a little different. It’s like, “They haven’t worked X-number of years. What’s it going to take to get them back into the job market now?” [I’ll say to attorney], “You might agree with his opinion. Before you go and pay me X number of dollars, maybe you want to wait because I know him, and I know he’s reasonable.”

Noah Bolmer: Is that one of the primary means in which you get work? Do you get many referrals from other people in your field?

Merrill Cohen: I didn’t get the referral from him. I got it from the attorney representing the person on the other side of the divorce. What I have had is of course, which is the big compliment is when people call me and say, I represented the opposing party on the such and such matter, and that’s with your testimony. I’m like, all right, cool.

Noah Bolmer: Every expert witness loves that. Let’s move to some of the more general- what in general makes for a positive attorney expert relationship? How do you get started off on the right foot?

Merrill Cohen: A couple of things are critical. Timeliness. Don’t ever be late. Brutal honesty. A lawyer hires you to look at a particular aspect of their case because you’re the expert. They’re not hiring you to tell them what they want to hear. I see this all the time where they want you to say there’s big damages and blah, blah, blah. So, you kind of massage the facts to fit that narrative. They do appreciate it when you called them up, in fact I have one right now where we did a little swim the other day. I’m like, “You might not want to call me in this case. You want to use the economist because I can’t help you. She is making the most money she can make.” It’s an employment case and the question is, did she make a reasonable effort to mitigate blah, blah, blah. Yeah, she did. She didn’t apply for another job. It was a demotion, but in her demoted job, she’s making more than she could make anywhere else. Part of the reason is because it’s a city of Seattle case and doing that same job for a smaller municipality is going to pay significantly less. Even if she did a higher-level job. It’s still going to pay less. I’m like, “I have nothing to say. She didn’t quit. She’s still working and making the most she can. I don’t know what you want from me.” One of the attorneys said, “I’ll talk to my team, and we’ll see what we want to do.” They appreciate that. They want it.

I like the case where the guy calls- this is another one where lawyers just don’t get it. There’s a horrible accident. The person gets injured. They broke every bone and they’re in the hospital forever. Guess what? They recover and do well. They go back to work, and they are making the exact same amount they made before they were hurt. The lawyer doesn’t understand how I can’t find any loss because it was such a bad accident. I’m like, “They’re making the same amount of money, so the only loss you have is the period of time they were out of work after the accident.” Back to my answer, brutal honesty is a good foundation for a relationship.

Noah Bolmer: What’s important about expert witnesses? Why are expert witnesses important to jurisprudence? What do you find meaningful and fulfilling about being an expert witness?

Merrill Cohen: If you didn’t have an expert witness to explain some of the concepts that come up in these cases, it’s essentially a debate between two sides that are skilled at debating. Trying to persuade this jury that it does not have the foundation or the knowledge to make a decision. Even with experts, you’ve got two different experts, so it isn’t all that different with the exception, that I believe at least in my case, the expert’s role is to clarify those issues for the jury. I feel my role as an educator, not a persuader, and I think that’s important.

Noah Bolmer: How do you go about connecting with juries, or even the judge if the judge is the fact finder or an arbiter? How do you go about making a personal connection with the Finder of Fact? How do you utilize demeanor?

Merrill Cohen: Good question and two things. When you use the word demeanor and this is something that I learned. You’re not always conscious of how you’re portraying yourself and how you’re interacting. One thing I learned is to be conscious of displaying the same demeanor on cross-examination that you do on direct.

Noah Bolmer: Ahh.

Merrill Cohen: That you don’t put up a big defense. You’re on cross now and you’re going to have a different approach. That’s not good. I try to treat the questions coming from both sides in the same way as I’ve listened to some of the other podcasts through this group and I’ve heard varying answers to this question. I was listening and yelling at my computer. “No, that’s not right.” He was somebody who said, “I don’t look at the jury. I’m just answering the lawyer’s questions.” I’m completely opposite. For me, it’s all about the jury. The guy who’s asking me the questions knows the answers. I don’t need to convince him of anything. It’s the jury. I look at them and try to see if they’re shaking their heads or if they’re sleeping. Are they engaged? Is there something I need to do to wake him up? That’s important and I don’t know about other states, but in Washington state they have juror questions. After direct, cross, redirect and recross, the jurors write down their questions, they’re picked up and the judge and both attorneys do a side bar to review them. They determine which ones they are allowed to ask, and the judge reads them. I’ve answered them for the jury, and I love that. You get to see what they’re thinking and what you could have clarified better. Often their questions give you an opportunity to expand on some of the issues that you weren’t asked the right question during your regular testimony. That’s an important aspect of the case that you get to answer the jury question. So yeah, I’m all eyes on the jury.

Noah Bolmer: What are some of the venues that you’ve worked in? You’ve worked in state, federal, and a bit of mediation. What are some of the differences?

Merrill Cohen: Federal court is- I don’t want to say stricter, you have to close every opinion that you’re going to testify to. You can’t deviate. I don’t know what the rule is in state court, but it seems like you can ramble on a bit, but in federal court, if you did not put it in your report and disclose that opinion, you cannot testify to it. Without getting carried away here, I had one case where all the facts changed between the time of my report and the deposition. Everything was different and I wasn’t able to discuss what was really happening. I had to pretend that it was a back when thing- it was weird. That’s something you need to understand. You need to understand that you have to stick to the script, so to speak in federal court. Different state courts- I often testify in Oregon, and they don’t have discovery at all. I don’t know how they do it now that we keep everything electronically, but this was before we had everything on computers, but I brought my physical file to the courtroom. They had the jury leave at one point and the opposing counsel stood there and looked through my file. That was discovery. Then he asked questions. That was weird. You want to be prepared.

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

Merrill Cohen: For experts, there are a few things. Stick to what you know. Don’t feel that you have to know everything and don’t let anybody push you to opine on something that you’re not qualified to opine on. That will get you and everybody else in trouble. You’re not doing anybody any favors. Be reasonable.

To attorneys, I would say talk to your expert before you send them a case. Make sure that you are enlisting the assistance of the appropriate expert and the expert can help you before you go in hook, line, and sinker. They’re small pieces of advice.

Noah Bolmer: Absolutely sage advice. Ms. Cohen, thank you for joining me today.

Merrill Cohen: Thank you. This was fun.

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

Ms. Merrill Cohen, Vocational Consultant and Life Care Planner, Strategic Consulting Services

Ms. Merrill Cohen, is a vocational consultant and life care planner for Strategic Consulting Services. She’s an experienced expert witness in both federal and state court and a certified rehabilitation counselor and certified life care planner. Ms. Cohen holds a master's in counseling from Seattle University.