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At the Round Table with Crisis Management Experts, Jonathan and Erik Bernstein

August 4, 2023

Our guests, Jonathan and Erik Bernstein, provide international crisis and reputation management solutions for both organizations and individuals. On communicating with non-experts, Erik states, “I think it’s important to use technical terms when they’re the only term that applies, but I think it’s very important and it’s something we preach to clients, is a layperson needs to be able to understand. . .” Jonathan adds “. . . some judges are very critical of certain types of language.”

We also cover connecting with new clients, the importance (or lack thereof) of academic credentials, and advertising expertise through publication, as Jonathan remarks, “[if] you want to be an expert, write a book. Then you’re an expert . . . That’s the way the public sees it. Or write a thousand blog posts on it.”

Episode Transcript:

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Jonathan Bernstein, Owner at Bernstein Crisis Management

Guest: Erik Bernstein, President at Bernstein Crisis Management

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer. Today, I am excited to speak with Jonathan and Eric Bernstein. This father and son duo runs Bernstein Crisis Management, founded in 1994. The firm provides crisis management strategies to a diverse client base in areas ranging from business continuity to reputation management. Thank you both so much for joining me here today.

Erik Bernstein: Thanks for having us.

Jonathan Bernstein: Right.

Noah Bolmer: Let’s jump right into it, Jonathan, tell me about Bernstein Crisis Management. You founded the business in the 1990s, but before that, you had already been working in the field.

Jonathan Bernstein: Yes, five years before I started this business, I created and ran the Crisis Communications Group for Ruder Finn, which is one of the top firms in the world. It was the first crisis group they had ever had because back then, not a whole lot of people were doing crisis management full-time. I was told it would not be possible to make a living doing it full-time.

Noah Bolmer: Is that right?

Jonathan Bernstein: That is what I was told back then. So, yes, I had that, and I worked for a number of other PR firms and corporations before.

Noah Bolmer: Has it always been a passion of yours?

Jonathan Bernstein: No, it is almost accidental. I started with five years in the military where I was an oxymoron. I was in military intelligence. Then, I became a journalist for five years because my investigative skills were useful there. Someone suggested PR was the way to go if you had writing and talking skills. It happened that the first PR job I had was with Playboy Enterprises in 1982 during the worst crises of their lives. I found I had a knack for dealing with crises. They were selling off the whole company, and Christie Hefner took over when Hugh retired. It was bad news after bad news, including the final press release which announced a 40% reduction in the workforce, including the entire PR department. So, do not call me because I will not be here. I discovered that I had a knack for thinking when people are literally or figuratively shooting at your feet, both from my military and civilian days. I also discovered that out of my four kids, Erik had the same knack, and he could be trained to be better.

Noah Bolmer: Erik, how and when did you first become involved?

Erik Bernstein: I did not know I wanted to do this. I was halfway to becoming an English teacher when I came into it. I was using social media, at the advent of modern social media, when My Space and all the copycats were born. I got a little taste of it doing some basic social media work, and some basic writing for Bernstein Crisis Management and realized, “Hey, this is going to be a lot more interesting and possibly more fulfilling in many ways than teaching would have been.”

Noah Bolmer: That is an interesting subject matter to come from as an expert witness. Let’s talk about being expert witnesses. It is interesting to have you both on because we can draw some comparisons and distinctions between both of your experiences. I would like to hear from both of you about how you were first engaged. Tell me about that. Is it something that you had prepared for? Were you advertising actively in any way or were you just contacted out of the blue?

Jonathan Bernstein: In my case, I was the first retained as an expert witness and I was contacted out of the blue by Round Table Group. I had been trying to land some work on my own and I had enlisted myself at various places, but I did not know one from the other. We were visible online, and I am assuming that is where Round Table Group found us. I went through your screening process and that is how I ended up working with my first attorney, an Arizona-based attorney.

Noah Bolmer: So, you were already familiar with the existence of expert witness work. I have heard from some of my guests they were not even aware when they were first contacted that it was a thing. It sounds like it is something that you were already pursuing.

Jonathan Bernstein: I was asked on more than a few occasions to sit in on witness preparation. Not because I was going to be giving witness testimony, but to look at how that witness would appear in the court of public opinion.

Noah Bolmer: Okay, tell me a little about that.

Jonathan Bernstein: For example, an attorney would say to me, “I have this person testifying, but the media is going to be in that courtroom, or government officials would be in that courtroom. I can coach them on what will come across best legally but is there anything he is saying that is legally correct, that might hurt his reputation from a public relations or jury relations point of view?” I was able to give them an outside opinion on that. Sometimes just by changing the verbiage a little. It is still a strong legal statement, but it also works from a PR point of view.

Noah Bolmer: What do you find that also applies to your expert work? Are you changing the way you say something to further the case? In your reports, do you simply state the facts as you know them? Do you have the outcome of the case in mind when you are generating your reports?

Jonathan Bernstein: I got a thorough briefing from counsel in both cases about what they hoped would be the outcome without trying to prejudice my results. I had a good indication but, in both cases, I dug for myself and made sure that I could defend myself factually and that my client’s side of things was strong.

If it had been strong, that is the first thing we would have said. Also, I think Erik will tell you that he and I are both plain talkers and many times the attorneys we work with appreciate that we do not try to sound like we are pedantic. We do not try to sound like we are talking from 50,000 feet. We work in the trenches.

Noah Bolmer: Do you think that sort of pedantry can foul you up a little? Is that something you would recommend to other expert witnesses to avoid or how important is it to get super technical and specific in your work?

Erik Bernstein: It is important to use technical terms when they are the only terms that apply. I also believe it is critical, and this is something we preach to clients, that a layperson is able to understand those terms. As expert witnesses, a big part of our job is to educate the folks who are reading or hearing our testimony. Making it so they can digest it and understand it without going to a dictionary or searching online is huge.

Noah Bolmer: How do you stay within those four corners? How do take your expertise and form it in a way that you know satisfies what the attorney is asking for without going too far above and beyond both? Billable, obviously, but also for the good of the case. How do you frame the entirety of your expertise?

Erik Bernstein: I think it is important to know what you are driving at with any piece of it. With the report, for example, it is important to know the conclusion you support. You do not just start writing a report and go on and on until you stop at some arbitrary point. You have a specific goal in mind, and you are trying to convince someone that your opinion is correct and support that opinion with facts.

Noah Bolmer: Since you are both going.

Jonathan Bernstein: During the first case that I worked on the first thing I did was read about the opposing counsel’s experts.

Noah Bolmer: Do you think that it is important that your attorney advises you on who the opposing counsel is? Is that important to your work as an expert?

Jonathan Bernstein: The judge is important to us too because some judges are very critical of certain types of language or have a previous bias against people in certain professions.

Noah Bolmer: Did both of you feel adequately prepared to go in? Did your attorney do a good job on your first time writing a report? And in Erik’s case, going to the deposition. Did you feel adequately prepared by your attorney about what to expect? What was required of you? When would it be required? All of the things that are involved in being an expert. Did they do a good job? If not, what would you change? What would you like to tell attorneys that is helpful for new expert witnesses?

Erik Bernstein: It helped that I got to go through a case where it went to the report step and then stopped. Then I got to go through the report stage again and then into the deposition. It did help me to work with legal teams who were willing to educate me on things. I knew what information I was presenting. The formats for litigation were different from most other things we put together. They told me what kind of experience I could expect in the room during deposition and prepared me for the curveballs that could come my way. I think what was helpful was learning about the Daubert Standard. That was a huge aha moment for me to understand the standard that I would be held to and be accepted as an expert by the court. I think that would be helpful to have known even earlier on because we did come across it as it went in. I feel that is enormous for experts. You have to know what to do to make sure you are officially an expert, not just someone writing a report to have thrown in.

Noah Bolmer: Let’s talk about that a little. What does it mean to you to be an expert? How do you maintain your expertise? How broad and deep does that expertise have to be? What do you recommend that other perspective experts and continuing experts do to maintain that?

Erik Bernstein: A huge part of it is just speaking and writing about what you do. For example, I know it can typically be helpful to have something like a peer-reviewed paper or a book.

Jonathan Bernstein: Okay.

Erik Bernstein: I do not personally have that. What I do have are thousands of blog posts that I have written and hundreds of media interviews that can be referenced. They show that I have a method that can be replicated. It is repeatable and that seems to be a huge qualification. If it is just something you are making up as you go along, that is not going to fly as we have learned.

Noah Bolmer: That is being published in 2023, right?

Jonathan Bernstein: Well, I did that. I did that and I am sure Erik probably will in the future. I published a textbook from McGraw Hill Manager’s Guide to Crisis Management and I also published the Media Training Manual called Keeping the Wolves at Bay because I had those credentials out there. If you want to be an expert, write a book. Then you are an expert. For better or for worse, that is the way the public sees it. So, if you have written a book on a subject, particularly a fairly niche subject, or have written 1000 blog posts on it, you are an expert on that subject.

Noah Bolmer: So, you feel that not only is it important to continue to learn, but it is important to make sure that other people know what you have learned by producing some kind of content.

Erik Bernstein: Yeah, 100%. I think to answer your point, something we did not mention is to continue learning. It is important to be able to say, “Here is how I stay up to date on my field. I read XY and Z publications.” That is something I was asked during a recent deposition. “How do you make sure you are up to date?” How can you say that you are using standards other PR professionals use?” It is important to be able to explain how you keep educating yourself.

Noah Bolmer: You mentioned a standard you had to become familiar with for your case. To what extent is outside research important? If you are given a case and are contacted by an attorney or a firm that will put you in touch with an attorney. That attorney says you must know something related to your field, but you are not up to speed on it. Is it at that point that you say, “No, this is not for me?” Or is it at that point that you say, “Well, I have enough expertise in this area that I am going to acquire the specifics that I need for this case?” How do you make that determination? How do you draw that line?

Erik Bernstein: For us, the cases we have worked on are just smack dab in the middle of our wheelhouse. I think that was helpful. Any tangential things we need to learn? Just doing what we do in crisis management, we have to quickly become experts on anything our clients do. We are used to becoming an expert for a layperson in almost anything.

Noah Bolmer: There is something that I ask everybody. There are a couple of things. One of them is winning the case important to you as the expert. Is it important that you just give the best expertise, or do you have a little bit of a horse in the game? Do you feel like your side must win?

Jonathan Bernstein: To me, my side must do the best it can do. Sometimes the expectations are not to win. Sometimes, the expectation or hope is to settle. Sometimes the settlement is a win. In the one Round Table Group case I worked in it was like a penny on the dollar settlement. We always want the best possible outcomes for our clients, not only because it gratifies us professionally, but because it means they will come back to us.

Noah Bolmer: Before we finish, I want to pivot to one other thing, which is case completion. Do you feel that lawyers keep you abreast of where the case sits because your piece is one piece of that puzzle, right? How do you keep track of where the whole case is? When you get called it might be at the beginning of the case. It might be in the middle, or it might be toward the end. Does your attorney give you calls? Do you have to track it yourself? Does it even matter to you?

Erik Bernstein: I think I have had both experiences thus far. In one of the cases, we were very much a cog in the machine, which is fine. That is just how they operated. I do not know what the conclusion of that case was in the most recent case I have worked on. I have been kept in the loop and they did give me all the background, but enough of the background so I could know the lay of the land for what I was coming.

Jonathan Bernstein: It is the same for me. The attorney for the Round Table Group client I worked for briefed me well. They also knew that I was at a point as an expert witness. He made sure I was well-briefed and sent me some good links and guidelines to research the general process. He was good. Then, the law firm that we both work with directly, [that] was where months would go by, and we had no idea. When we came back with another question, we would not hear anything again for a while. Ultimately, we just heard that something technical had happened and the case was going away.

Noah Bolmer: It is interesting. I take it that it does not impact billing because you bill by the hour or are you doing by the case? I have had different answers from different people. Do you have a specific method of billing that you recommend for other newer experts?

Erik Bernstein: I think it is smart just to make sure you are getting paid for your time. These things like much of our other work in crisis management are open-ended. They could need you for a specific purpose and you are done. It could become a drawn-out deal where you are attached and committed. I think it is smart to make sure you are getting paid for that.

Jonathan Bernstein: The nature of expert witness work does not lend itself to project billing because you cannot accurately predict the amount.

Noah Bolmer: Is there anything else you would like to add for either attorneys or newer experts who are just getting started? Anything that you wish that attorneys had done better or that you wish you had known when you had first became an expert?

Jonathan Bernstein: I would say beware of academic-only credentials unless you are talking about academia. We have come up against this. I have certainly. Both of us have come up against people who have Ph.D’s and Master’s Degrees in this. They teach here and they teach there. If you look and see they have written a press release for somebody.

Noah Bolmer: Tell me about that.

Jonathan Bernstein: They teach it, but they have never practiced it. I think their cases can be picked apart so quickly that attorneys take a risk hiring. Yet those are the highest-paid expert witnesses.

Noah Bolmer: So, you feel that kind of oppositional research is important and for the expert witness to be aware of, is that right?

Jonathan Bernstein: When we did deep dives into the names and backgrounds and I was encouraged to gently make statements, I asked, “Should I say things that will clearly undermine the plaintiffs, expert witnesses’ case? They said yes. And so, portions of my report with the first case I worked on, were a detailed diagnosis of why for detailed analysis of why the two other expert witnesses’ reports were seriously flawed.

Noah Bolmer: How about you, Erik? Do you have anything else that you would like to add for attorneys or newer expert witnesses before we sign off?

Erik Bernstein: I do not think you can ever underestimate the value of good deposition prep and role-playing. Some of it was in contrast with things I have read online. Just generic tips on how to be an expert witness. In this last case, they said, “Go ahead and fence a little more if you feel comfortable with what they are saying. With your answer, go ahead and hit back a little.” That always needs practice even though we teach people to do that. Media training is a different feeling. To be in a deposition and have all the gravity that comes with it. Role-playing was tremendously beneficial.

Noah Bolmer: For me, that is interesting that you have read to the contrary. If you can give me an example of something that you read online that turned out not to be the case.

Erik Bernstein: A do’s and don’t’s list item I read going in was that you, as much as possible in a deposition, want to give yes or no answers. That was repeated online. Sometimes that is the case, but often it is much more like the things we preach in media training. You answer and then you bridge into saying what you want to say if you can. That was a major difference.

Noah Bolmer: Did you feel that your attorney prepared you for that? Is that something that you were expecting and ready for?

Erik Bernstein: I was not at first. I was happy to do the role-play. They opened the gate for me, and they set the boundaries for me. This is the box you can play in if you are comfortable, but they also gave me the edict of your number one job, which is something we tell clients all the time. You cannot win a deposition. You can only lose it. it was the main advice they gave. So, get it when you can, but do not overreach either.

Noah Bolmer: Tell me a little about that role play. What was that experience like? Was it extensive? Was it over a number of days? Was it just an hour long? What was that like?

Erik Bernstein: No, we did different sessions and I think we went for several hours each time. It was exactly what we do in media training. Just being on the other side of it where somebody comes at you with difficult questions and they tear into you a little, right? You cannot BS in these things because that is a good attorney’s job, and you better believe they will find something to catch you on. These attorneys did a great job of doing things like dragging up things that I had written in the past that may have seemed to contradict what I had put out. Though once I was able to explain it, they were not contradictory, if I did not know that was coming, I would have been sweating much more in the room.

Noah Bolmer: For somebody like Jonathan, who has been doing this for decades and has written multiple things, including books, it is not only important, I take it to be familiar with the opposing expert’s work, but your own. What if you forget something that you have written before?

Erik Bernstein: Absolutely. We have seen people pinned down on that in the work we have done. Where they quote your own book at you and say, “Well, you said this in 2015.” If you do not have a good answer to that, well, you are risking not passing that Daubert standard.

Noah Bolmer: Jonathan and Erik, thank you for joining me today. It was a pleasure.

Erik Bernstein: Thanks for having us.

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After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.

At the Round Table with Crisis Management Experts, Jonathan and Erik Bernstein

Jonathan and Erik Bernstein, Bernstein Crisis Management, Inc.

Jonathan and Erik Bernstein own Bernstein Crisis Management, Inc., which has been providing business continuity, reputation, and crisis management services since 1994.