Duck, Duck, Goose
It’s not completely random, but working with different lawyers on expert witness cases can be pretty hit or miss. As a hired gun, I am not in charge of anything in these cases expect the specific opinion that I am asked to render to support my team in the case. Like any lawyer considering accepting a case, I am asked to accept a case based on a minimal amount of research and less than full awareness of the facts of the case. That all comes over time and by then, absent some very strong differences of opinion, you are largely locked into a side and must make the best of it. My partners who own the company that I work with (notice I did not say “for”, but rather “with” since I am sort of what they call in the legal profession, “of counsel” rather than being on staff), seem always to be of the opinion that they never met a case they didn’t like and feel that every client (plaintiff or defendant) deserves the help of our expertise. I tend to be a little more wary of becoming a mob lawyer tool, so I spend more time thinking about who’s cause seems more righteous. Being “of counsel” is not unlike being an adjunct professor of a University. You aren’t really a member of the faculty and you get no vote on governance issues, but you do control your own professionalism and can always opt in or out as you choose for whatever reason. When presented with a case opportunity that seems in the headline to fit with my skill base, I get whatever sense I can from the initial complaint and, hopefully, the response to that complaint. I find it is important to hear the initial points of view of both sides so I can understand what I am likely getting myself into. Needless to say, those initial positions may or may not be fully borne out by the facts as provided and as interpreted by me.
While it does vary somewhat, the general approach used by most law firms is to wait long enough into the case process to have some portion of the discovery and disclosure documents to feed to an expert to productively engage them. There is often a more cynical approach (no doubt borne of the experience of themselves being paid-by-the-hour gunslingers) wherein they stall formally retaining an expert until they know that the case is in the final run-up to the report submission dates and the expert must work hard and fast to gather his or her research and opinions to generate that report. It’s a funny timing game with them wanting me to have enough time to get them the report early enough for them to mold it to their best arguments and yet not wanting to give me too much time to run up the billing. If one believed that such work takes as much time as it takes, so long as it fit within the 24×7 confines of the clock, it shouldn’t matter. I’ll bet they are not wrong and if you gave an expert two weeks to do a report and gave that same expert one week for the same report, it would be hard to expect that the two-week effort wouldn’t result in more billable hours for the same job.
I am currently engaged in no less than five cases as an expert witness. For some people that have really worked at developing a big expert witness practice, that is perhaps not a lot of cases, but it is as many as I’ve had at any one time. In fact, I don’t think I’ve had more than two at a time and truthfully, even those have mostly been handled somewhat sequentially. But of these five cases, one is a hold-over from last year where the testimony has been postponed until the middle of next year. I’ve done all the report-writing work on that one and have little to do until it is time to give testimony to an arbitration panel, at which time I will have to completely refresh my knowledge of the case. It is a straightforward suitability case in an investment arena where I am very much an expert, so I have no particular concern about being able to get back up to speed whenever they need me. At the other end of the spectrum, there is another case involving battling High Net Worth family members fighting over the spoils of their father’s accumulated fortune and business with all the incumbent messiness that entails. I imagine there will be the usual claims of breach of fiduciary obligation and the counter-claims of how so-and-so descendant deserves less by virtue of all the hard work needed to create value from the mess that the controlling person feels they inherited. That case has been engaged but has not yet begun with the normal download dump of documentation and evidence. The other three cases, are in full swing.
As seems always the case (pun intended), they are all at different stages of development. One has the report largely finalized and things are teeing up for depositions and testimony in the coming months. That one involves a meaningful amount of money and extremely high principal value since it is about the theft of confidential information. The second is in between the first and second draft of the report writing and has about six months until the report is due. That is an unusually long period of time for this sort of work, but it does involve a a very large sum of money claims and highly complex financial products that need dissection. This is a classic elephant dance with big and savvy market players jousting with each other decidedly NOT over matters of principal, but over nothing more than filthy lucre. In fact, this is very much less a case of harm and wrong-doing and much more a case of opportunistic vulture activity. The plaintiff has purposefully enjoined the battle to seek settlement or adjudication simply to garner transactional profit. I am defending the home front and feel a bit like a lone soldier in the trench with other lone soldiers standing between the advancing hordes and the Kingdom that has hired me for my professional, but nonetheless mercenary abilities. The third case is an attempted class action seeking to do one or both things, recoup value for a harmed class of investors and/or exploit the weakness of a financial services firm’s armor to make it better and earn a tidy sum along the way.
In the first, there is little I can teach the lawyers or the client about the value of confidential information and how important it is to protect it. But they need respected and impartial people like me to stand behind their views. In the second, the lawyers know much less than the battling elephants and are using me to hone their arguments and stand with them to defend that Kingdom to allow it to carry on with its plans for future glory. And the third is all about educating the lawyers in the arcane arena and giving them a path to pursue on this very arcane playing field in which I am experienced and quite knowledgeable.
The first is loving my work and seems genuinely complimentary of my efforts and insights. The second is quite concerned about the elephant dance and likes to crack the whip on me to stand straight on a pedestal in the ring between the elephants since they know me to be a prior elephant. Like all wild animal tamers, they vacillate between savagery and fear and need me to be obedient, which I am prepared to be for the moment. And the last is simply trying to learn and at this point doesn’t really know what they don’t know, so they are happy for whatever help I can lend. I see I have put in over 85 hours among them this month (pretty close to a half-time gig) and I am left to run around the three like I’m playing Duck, Duck, Goose, tapping one and running like hell to sit down next to the others before they can tag me back. I like the work. I’m good at the work. The work suits me. But the games never end and my gamesmanship skills have not yet deserted me in retirement. Duck, Duck, Goose.