Unless you’re fortunate enough to have worked with a particular litigator over a long period…
By John Borrowman, CPC
Borrowman Baker, LLC, BV Staffing + Consulting
You find some of the most interesting people in the world of business valuation. But, rarely do you get much of a peek at what makes them tick.
We reached out to four highly respected expert witnesses to see what they think about the work they do. A special thanks to Chris Mercer, Gary Trugman, Neil Beaton and Jay Fishman for squeezing a few minutes of conversation into their hectic schedules. Here’s what they shared:
When you first began to testify, did you discover a liking for it right away or did it grow on you?
Mercer: I first began to testify because I signed the report at my former employer, and was subpoenaed. It wasn’t something I gave a great deal of thought to. Originally, it wasn’t a matter of liking it as much as it was an integral way of building business in the early years.
Beaton: I liked it right away. My very first case was a damage analysis. My boss at the time told me it’s really formal and that I need to be really careful and not to joke. I got in there and couldn’t help myself. So, I cracked a pretty good joke that got everyone laughing, including the judge. It went over pretty well. At that point, I figured there was nothing that could go wrong. If I could pass that test, I was going to be pretty good at it.
Trugman: I loved it. Absolutely. I’ve always been a student of the law. I was accepted to law school and didn’t go. I remember the whole concept that you are coming into a courtroom and being looked at as being an expert. And you are giving an opinion that is going to make a difference in a case.
Fishman: I liked it. I started out doing all kinds of valuation work. But, I found myself gravitating towards the litigation. I liked it because it was like teaching,
there were elements of theater and, to a certain extent, there’s immediate feedback. That didn’t mean that I didn’t walk into the courtroom with a stomach ache, which I did – which I do, as a matter of fact – but, I did like it pretty early on.
What do you do, emotionally or psychologically, to deal with the hurry-up-and-wait nature of expert witness work?
Fishman: That’s really hard to do. There are two types of “hurry up and wait”. There’s the “hurry up and wait, the trial’s scheduled for next week” and it gets adjourned. Or, there’s the “hurry up and wait, we’re starting at ten o’clock tomorrow and you start at three.” In the first type, I try to communicate and make sure I get a sense of whether this is a real date or not. There’s no substitute for preparation. Before I testify in a sophisticated case, I read every piece of paper in the file. It’s exhausting, but I do it. If I’m prepared, that reduces my anxiety.
Mercer: Scheduling is always an issue with litigation. I’ve developed an attitude that that’s just part of the nature of the business. And, that’s just the way it is. I try to arrange life so I’m ahead of deadlines. And, when those crazy things occur, I’m more likely to have resources to deal with it.
Trugman: There’s nothing you can do, other than take it all with a grain of salt. If you’re going to do this kind of stuff, you have to understand that this is the life you’re asking for.
Beaton: I still haven’t figured that one out. You get loaded for bear and you never shoot your gun. It’s not fun. I haven’t dealt with it.
Are attorneys are getting the most out of your expertise?
Trugman: Some yes. Some no. The better attorneys really understand what they want out of an expert witness. The attorneys that are not what I would consider to be good litigators find themselves in court despite themselves. And those are the ones that are very hard to work with.
Mercer: Over the years, I’ve found attorneys increasingly recognize the value of using qualified experts, either in a consulting capacity or in the capacity to assist with reviewing the work of other experts, or preparing deposition questions for other experts, or even, occasionally, for fact witnesses. I think attorneys are growing along with the rest of us.
Fishman: I think it works this way. There are the ones who say, “I know what I’m doing. You’re the expert. I’m the lawyer. I’m going to do the law stuff. If I need to know something I’ll ask you.” Then there are the others who do want to hear from you and allow you to educate them.
Beaton: The better ones, yes. The newer ones, no. The more experienced they are the more open they are to listening to my opinion and my thoughts than a younger person trying to prove his or her bravado. As they grow and age, they become much more attuned to what works and what doesn’t. An expert should know what he, or she, knows. And, so, why should an attorney not listen to them. They “get it” as they move to that stage.
Fishman: Still, that only comes if they trust you. When I started, I would tell the lawyer, “I think the guy is doing this and it’s wrong.” And, he or she would have to get up and represent that to the judge. If I was right – and thank goodness I was right more often than I wasn’t – I earned their trust and they paid more attention to me.
What sort of attorney behavior would cause you to drop a case?
Beaton: Any lack of integrity. Lying. If they ask me to do something I can’t do. If they withhold critical documents from me. Any kind of lapse, if you will, in integrity, and I’m out of there.
Trugman: Someone who either puts a lot of pressure on me to move my opinion to an area I’m not comfortable with. Or, an attorney who is non-responsive to my questions when I need guidance.
Fishman: If they insist on a position that I can’t take. Any of us who testify have a trail behind us. So, you have to know that when you testify. I try to tell the attorney early on, “If this is where you want to go, I can’t take you there. I’ve written otherwise on that subject.” And if you get to a point where you don’t think they’re going to be able to accomplish their goals through you, it’s time to stop.
Mercer: It may not be a matter of attorney behavior. The circumstances that would cause me to drop a cause would be not being paid. If I found myself in a situation where, for one reason or another, I was unable to issue an independent opinion, I would resign.
What’s the thing about expert witness work that keeps you coming back for more?
Fishman: I still like the idea that I’m teaching and that I’m helping people. But, advocacy has gotten more pronounced in valuation cases. I just came back from a case where my client was furious with me because I did not attack the other side’s witness. There seems to be a view that experts are advocates. And this antagonistic view makes the litigation more expensive and ulitimately unsatisfying for the clients or the system.
Trugman: I think it’s a way to learn a lot about the law, which I enjoy doing. And, I think our role as an expert is to always be educating someone. Going toe-to-toe with another expert … years ago that was a thrill. Today, you realize it’s not about trying to cripple another expert and it’s not about war. At the end of the day, the clients are the ones that get hurt. I’d much rather settle a case than have to go toe-to-toe with another expert.
Fishman: Also, just because you score points in making the other side look bad doesn’t mean the judge is going to believe you.
Mercer: I don’t know whether I love to hate litigation, or hate to love it. It’s just one of those things. It’s a different kind of business. It’s not for everyone. A good expert witness has to have objectivity and a thick skin.
Beaton: It’s interesting. I would say that good judgment comes from experience, and experience comes from bad judgment. Early on, I went toe-to-toe because I thought I knew more and was better. I got killed. So, I’ve gone almost exclusively to the “teach”. I’m the objective expert. I teach well.
What keeps me coming back? I love the fight. I played rugby, and this is my intellectual rugby, if you will.