I am sitting in the hot tub on an overcast Autumn day. It’s the first time -in many weeks that I have used the hot tub, and I feel like I have earned it by virtue of working most of the day on two active cases, one of which is at the stage of finalizing the report for submission to the court of arbitration, and the other is heading into a full day deposition tomorrow on a large civil case. I worked most of last weekend on the first draft of the report on the first one, then revised it after a call with the litigator. After that I was asked to do something I haven’t been asked before and that was to turn the report into a PowerPoint presentation. This is a relatively small case in terms of the amount of money involved (less than $5 million) and therefore it is on a relatively tight budget. That translates into a 17-page report (about half the normal length) and was supposed to become a 10-page PowerPoint. It turned out to be a 13-page deck because I just did what slides I thought were necessary to make my opinions strong. The second case is far bigger (several hundred million potentially) and is a civil tort rather than an arbitration. That one is also a bit budget constrained but not so much as the first. In that case I submitted a forty page report (with 150 pages of data exhibits), wrote a rebuttal of 13 pages against an opposing expert report of 73 pages (with 120 pages of exhibits) and have had to contend with his rebuttal of my report which is a scathing 63 pages (with 20 pages of exhibits). That means that for my deposition tomorrow I have to have near perfect recall of 190 pages of prose and 300 pages of numbers. The truth is that I will have a copy of my original report in hand (no notations on it allowed) and I can ask them to show me any of the other filed reports if I am asked a difficult question where my recall is imperfect, but these depositions are all about credibility, so you want to have a strong command of the issues both backing up your opinions and rebutting the other guys opinions. Some people might find this all too stressful to imagine.
Luckily for me, this business suits me and how my mind works. It’s not that my memory is so great, but rather that my reasoning ability, if adequately and recently refreshed, is pretty strong. I don’t get flustered easily and I know how to handle a deposition with calmness. The combination of my years of senior high-pressure work on Wall Street prepared me well for this sort of grilling. I jokingly say that these young litigators (everyone is getting young compared to me and my 70 years) are nothing compared to the sharp knives I faced every day on Wall Street. My time at Bankers Trust was certainly a good testing ground, less because my peers and superiors were nasty, but more because intellectual arrogance was a mainstay of Bankers Trust and there were lots of wicked smart people all around at all times. Deutsche Bank was actually more kind and gentle, strangely enough. But Bear Stearns was the crucible of Wall Street. I knew going in as a senior person was going to be hell on wheels (Bear was not known for absorbing outsiders easily), so I went in eyes wide open. I’m not sure anything could have prepared me for Jimmy Cayne (rest his soul….if he had one) and the other guys around the Executive Committee and Management Committee tables since they were almost as smart as the BTCo. people, a whole lot meaner and tougher, and some were actually downright snarky in a zero-sum gamesmanship way. I remember once while making a presentation, one particularly snarky ex-Academic, ex-Washington bureaucrat (the worst combination I can think of) purposely referenced a page in a 100 page presentation I had sent in advance for discussion that was left blank due to some clerical error. He asked me a question about it just so that the others at the table would open to it and realize I had left a blank page. Pretty snarky and downright petty, wouldn’t you say. Lucky for me, the real Wall Street guys at the table disliked him more than they disliked me. So, I feel like I can think on my feet well if I take the time to prepare.
And prepare is what I have been doing this week. I reread all 200 pages plus another 100 pages of key evidence. I reviewed my team’s comments on the rebuttal, which was a very picky, snarky piece of work (the other witness is, not surprisingly, also an Academic who occasionally works for the Federal Government in Washington…go figure). We used to say that those people can’t argue about money like the Wall Street guys do, so they argue about everything else. I have had two prep sessions with our legal team and they are quite good (they are rough and tumble class action litigators, which is the closest thing you find to Wall Street guys in the legal profession). They have tossed every difficult question at me that they can think of and I think I have honed all my answers. There is no way to be certain what I will be asked and how the temperature of the room will go, but I feel ready. I don’t mind going up against Academics who are smarter than me (technically, they will be behind the scenes whispering into the litigator’s ear) because when the going gets tough I lean back onto 48 years of experience at the senior most levels in the field and this sort of litigation is never about theory and always about practice. When I say that something is based on my experience, it is hard for anyone to disagree because few, if any, ever have my degree of experience…and being academically right is simply not as good as being pragmatically right.
The truth is that experts never work, or are allowed to work, on a contingency basis. We cannot have any money on the line to cloud our opinions. We get paid no matter how our opinions come out or whether our opinions get undermined in some way. We do not want to be disqualified for lack of foundation, but I have been through that gauntlet a few times and always come out in good form. So, if this really doesn’t matter to me, why do I care so much and prepare so much to do well in these depositions? Clearly there is a professional pride element, but that isn’t really the thing that works on me. This is my second career (if not my third or fourth) and I will only do it at best for a few more years, so, in theory, my reputation is not so terribly valuable in an economic sense. But I was raised by a mother who taught me to always do my best and be my best. It’s about how I feel about myself that matters to me and I want to do well in these situations. It matters a lot to me. I wonder if these people in the litigation community that hire me understand how important it is to me to excel at this every step of the way. I think they must because I have 11 cases on my plate, more than any other expert in my firm of 60 experts. That doesn’t just happen. They want the best and I only strive to be the best and I think that’s supposed to be the way this works. Think of me on Friday while I get griddle marks on my ass for 7 hours.