Gentleman in Waiting

Gentleman in Waiting

It’s a funny thing in the expert witness game, the generally accepted view is that an expert’s ability to write extensive and factually accurate reports and rebuttals, all properly referenced and footnoted, is one level of proficiency. Being analytically astute, compelling and hard-charging are all attractive attributes but the analytical and written work constitutes only one level of proficiency as an expert. Please understand that these are very long and involved reports and rebuttals that, in my cases, have run as long as 150 pages and involve review of over 1,000 evidentiary documents, so they are significant and time-consuming undertakings. But the second level of proficiency, the level that does more to set an expert’s worth to litigators than anything, is their experience on the stand or in the courtroom giving live, think-on-your-feet testimony. When going through the interview process when litigators and clients are selecting experts, the testimonial experience does the most to drive up the acceptable pricing per hour of expert witness work. Since starting this expert work, my billing rate has gone up by 46%, a not insignificant increase due specifically to this experience in in-person testifying.

I now have almost a full year of testimonial experience. In fact, that totals about 150 hours on the stand in about fifty cases. I don’t want to get into details about the cases themselves but would like to describe the process during COVID. These hearings are conducted via Zoom, like so many other business dealings in this new reality. The hearing I have been involved with are usually either on Eastern or Central time, so starting two or three hours earlier than my time here in San Diego. They start at 9am or 9:30am and they tend to have a wide array of participants. The cases I am working right now usually have seven or eight claimants grouped together which means there are usually anywhere from eight to a dozen arbitrators, one of whom is designated as the lead. There are three or four administrative people ranging from court reporters to court officers who keep track of administrative details. Then there are from two to four lawyers from each side, several claimants themselves and several representatives of the defendant. Plus, there are anywhere from three to six witnesses who will be called in some sequence or other.

I cannot even imagine this case happening live and in person. This is already a tremendous expenditure of time by a lot of people doing it in a relatively painless physical manner by Zoom. I almost can’t imagine if this had to be done in person. And one of the biggest reasons for this tremendous inefficiency is that more time is literally spent waiting to give testimony versus giving testimony. If there was in-person work involved, between travel time and inconvenience the ratio of testimony to waiting time and travel time would be in the range of one to three or four. It is already a feeling of wastefulness when you sit and wait and wait and wait for your turn to testify. Some of the time has some value because you get to hear what certain arbitrators are most interested in and you are somewhat prepared for how they are likely to lean into particular issues. I would argue that only 25% of the arbitrators are obviously pro-defendant and another 25% are obviously pro-claimant. That means that I feel that 50% of the arbitrators are not so obvious in their leaning in either direction.

A typical week when I must give testimony (which has been a weekly event for me since August or eight months) starts like this. I get an email the prior week advising me of the claimants and timing of hearings as well as giving me the details of the Zoom call-in. I then get a text from the litigators early in the week with their expectation of whether I am likely to be called that week. So far, those are always a great big maybe, which means I must remain “on call” for testimony and be prepared if I am needed. Sometimes there is a need to review specific materials based on the way a particular hearing is trending. That usually involves several hours of testimony preparation. The pattern we have been in for several months now is that the lawyers play a videotape of one of my earlier testimonies and cross-examinations (several hours worth) and then I am called on or not on Friday with other expert witnesses to answer questions about my testimony or about specific points of view that I have expressed or the arbitrators want to get a point of view from me on. So on Thursday I find out definitively whether I am needed on Friday or not. Right now it is sort of a fifty/fifty situation. Some arbitration panels seem very curious and others seem more inclined to come to their own conclusions based on what is in the can already.

If I have been told to appear, I am also given a start time. For instance, this morning I was told to be on by 7:30am PDT. That requires me to arise at 6:30am, shower and shave and put on a dress shirt and tie, since this is a Midwestern-based arbitration where most of the witnesses, lawyers and arbitrators are more formal than not. I have been on other cases where the arbitrator has actually made fun of a witness for wearing a suit and tie, so it requires you to be aware of the local preferences. I then log on to the Zoom call, which I find always must be done with some time to spare just in case there is a log-in issue. In all honesty, that is getting better and better and there are fewer and fewer problems either with Zoom or my personal connectivity. But, unfortunately, this is when the fun and games begin. With this size of arbitration, the hearing rarely starts at the appointed time, but rather can start up to an hour late. During that time, I can find things to occupy and amuse myself, but I must simply stand by and wait.

Then the big drumroll of the morning is who will be called first for questioning. How do I say this with some degree of political correctness? Some witnesses are valuable to listen to because they give crisp and authoritative answers. Others ramble and tell stories and try to be funny and generally waste a lot of time. As I listen to the testimony of another witness, I usually learn the leanings of the arbitrators or at least hear the sort of questions they like to ask. It is always funny to me when they ask another witness about an issue that is part of my testimony. The witnesses usually correct them and say they should ask me. So now I know what I will be asked. It is also valuable to hear how some other witnesses (sometimes supporting and sometimes contrary). In this case I thing my opposing counterpart is quite credible and well-spoken, so I am not up against an idiot by any means. But he is clearly on the losing side of this argument and we have already secured over $300 million in verdicts on behalf of our claimants. I consider myself as a strong and authoritative expert witness and my litigators, who do not strike me as guys who offer praise easily, as very happy with my testimony and responses to arbitrator questions.

My questioning can run anywhere from a few minutes to a few hours. SOme times I am asked simple yes/no questions and sometimes I am asked to hypothesize. The details of this case and the principles around my testimony are VERY familiar to me at this point. I am paid well for my ongoing work and I do not mind putting in the time, but I must admit that I still feel some pleasure at being told that I am excused. My litigator handler then texts me with a texting high five and we agree to text again next week. If a measure of someone’s pleasure with your performance is measured in how quickly they pay your bills, I will note that I am paid within ten days of billing at month end. So while I an a gentleman in waiting for purposes of the court, my clients are very prompt and never keep me waiting. As it should be.