Deposing Views

Deposing Views

Today I was involved with an all-day deposition in a case where I am acting as an expert witness. I spent about 10-12 hours reading all the materials I had written on the case (1 46-page Report, 2 20-24-page Rebuttal Replies), the two rebuttals (each 25-30-pages) and various summary motions, articles, etc. I had worked on the case from late November through mid-January, when I wrote the first report. I spent 56 hours on case familiarization and writing the report. I then spent another 34 hours in February and March writing the replies to the rebuttals. It was quiet in April and this week I spent seven hours in the actual deposition chair. That totals about 108 hours on this particular case, spread over five months.

The case is the sort of case I like representing. To begin with I feel I am on the side of the angels in that I am representing the claimants, which is to say the pensioners, the plan participants, the proverbial widows and orphans. I don’t always get asked to represent the pensioners or investors. The last case I worked in my expert witness capacity was one where I represented the investment manager. I have acted as both an investment manager and fiduciary and I have run pension companies and taught pension management for a decade. That means I am trained and experienced in both sides of the most common contest for which I get called to represent. What I have not had to do and hope I never do is to get involved in a case where I do not have a conviction about the party’s position that I am being paid to represent. That is not as easy as it seems. The initial review of the facts may tell you one thing and then as you get into the case and other facts come to light you may find yourself in the uncomfortable position of needing to abandon your client or compromise your principles. Neither is a good thing or a pleasant situation and treading that fine line must be agonizing.

When I confront opposing experts it usually begins on paper. It starts with an exchange of resumes and qualifications. You find yourself by natural instinct acting like a kid on the playground being forced to size up your opponent before the exchange begins. I am a big believer in the importance of humility. I learned a long time ago that no one is omnipotent or infallible. That state simply does not exist. It is a sure sign of weakness when you find someone who thinks they are always the smartest person in the room about any subject in question. But the nature of battle requires a degree of confidence. To begin with, you either have a strong CV or you don’t belong in the expert witness game. I don’t know that every expert witness has to deal with this, but my biggest challenge is not the impressiveness of the positions or the breadth and depth of the experience I have, but rather the bumps I have encountered in the road. I personally believe (or perhaps I have convinced myself) that they are extremely valuable in the rounding out of my experience. The old adage from Samuel Smiles that you learn more from failure than success, is wisdom I have come to accept. But in the expert game, any loose thread the opposing lawyers can pull at will get pulled. Career bumps are just such loose threads.

Therein lies one of the curious things in the expert game. The experts are hired by lawyers. They are put up against an opposing expert and do battle in writing through reports, rebuttals and replies. Think of it like a slowly evolving debate. But when the process gets to the deposition stage, the lawyers are allowed to go at the experts in a bare-knuckle manner. The opposing expert is nowhere near the melee. The expert’s lawyers can add a modicum of support or protection, but for the most part they stand outside the ring while the lawyers tag-team (especially if there is more than one respondent and thus lawyers) the process of slapping around the expert witness. When things progress to trial, the process of questioning and cross-examining is much more proscribed and much more orderly and genteel. Most experts hope that their cases settle on the cusp of trial.

A curious exchange occurred today in my deposition. It was not the anticipated exposing of any and all of my career imperfections, which certainly occupied some attention. At one point, the opposing lawyer put up an exhibit that showed the cover of the book I wrote and published in 2013 on the Global Pension Crisis. It was published by the foremost academic publisher, Wiley & Sons, was written while I was a Clinical Professor at Cornell’s Graduate School of Management and had a foreword from a foremost economics scholar, Bob Frank. It is one of the few books on the subject and has been cited academically (something about which I am particularly proud). The lawyer went to my introduction in that book where I explained that the work was not a product of primary research, but rather secondary research done by other pension experts. I declared myself to not be an academic expert and that the topic of pensions is so complex that there were many who knew more than I. To me, this was a temperate use of humility, but this lawyer chose instead to ask me to read the line that I was not an expert so as to get the words on the record, presumably to use to denigrate my expertise for the cause of their case. I found it curious that an introductory humbling comment in a significant published book of clinical expertise would be used to disprove expertise of the author. I’m betting the lawyer spent no time actually reading the contents of the book.

Such is the nature of the real world of litigation, I suppose. In some ways, my expert witness experience mimics my overall business experience. I like to think that everyone has the best and most honorable intentions, but that is so rarely the case. I find the practicalities of competition to be most often about gaining advantage on any basis available. Whether it is sales practices or litigation, it seems that the ends are often used to justify the means. I find I cannot operate that way. I am forever expecting the best of others in the same regard. That either means I am naive or it means that I unable to learn from experience in this regard.

Ultimately, I stayed in business in spite of the ethics turmoil that surrounds it. Most would assume that was particularly so in Wall Street banking though, as it is what I know, I cannot judge that objectively. I very much like the intellectual and written work challenge of expert witness work. I am far less fond of the thrust and parry of depositions and testimony, but on balance the work suits me very well and I will gladly suffer the harsh and deposing views of people simply trying to gain advantage for the ability to work the issues.