Rejection Angst
Many of us guys have had a lifetime of experience with rejection and should presumably be somewhat immune to it as we reach our retirement years. Not really. It’s not that I fear rejection or anticipate it and thereby avoid situations where it might arise, but when it finds its way to me, I simply don’t like it. Who would? But I keep thinking that I am past needing external validation, and that just ain’t so.
Last week, out of the blue, my expert witness partners called me. When they call me together (one lives in Palermo, Sicily and the other lives in Lisbon, Portugal), I know something is up. It is somehow more than a routine or administrative call. Sure enough, they had a new case for which they wanted to submit me for consideration. The way the ball bounces in this business, there never seems to be an ordinary or routine case. Every case seems to have peculiarities and therefore there is always some sort of questioning of whether the expert is a good fit for the needs of the litigator. The case that Sergio and Damiano presented to me was one where their ex-employer (a large trust bank) was the defendant in a case involving a trust that they had undertaken. Naturally, there was a loss and the issue in question was who bore the responsibility for that loss.
I was the senior fiduciary of a large trust bank for the better part of a decade and had directly relevant experience from that perspective. In addition, the basis of the trust was rooted in a reinsurance situation, which can be somewhat arcane and industry-specific and I had the somewhat unique experience of having set up, purchased and run a group of reinsurance companies while acting in a senior capacity at that same trust bank. In other words, while the circumstances were not directly like anything I had seen before, it was very similar to things I had a good deal of experience with from both sides of the table. That struck me as somewhat of a shoe-in for me, especially since the law firm was in a place that savvy litigators often put themselves into vis-a-vis expert witnesses. They had left themselves a fairly short window of time to get the expert report drafted and agreed before the arbitration panel was to meet. Litigators generally do that in order to control the billing by the experts, but they risk both a rushed job and difficulty in finding someone who happens to be immediately available.
I was both available and a pretty decent fit, so I thought I had a lock on the assignment and was waiting for them to confirm that with their client. I explained my scheduling (since I am starting a road trip in a few days) and was expecting them to load me up with a ton of materials to read and to spend this entire week cramming to produce a first draft of a report that they would review while I was driving East. When they didn’t get back the next day and said they were conferring with their client, I just assumed it was the lack of urgency that always occurs where one day seems like no issue to one party while another party is anxious to get to it so as to be free to follow their plans without disruption.
After a weekend and no word on Monday, I started to feel that there was more at play than just normal casualness. Sure enough, on Wednesday I got the message that the litigator or client had chosen to go in another direction because they had supposedly found an expert that was “a more perfect fit” for their needs. I have no idea what that means, since like any audition or try-out, the deciding party has absolutely no obligation to say more than they want to about the basis for their decision. It could have been that I was too old (meaning my experience was too long ago), it could have been bad chemistry from our Zoom call, it could have been that there was indeed a Mr. or Ms. Perfect that they ran across, or perhaps it was that my managerial record is not without a blemish or two. It could also have been because my colleagues used to work at the defendant firm. Who the hell knows, and based on all the assignments I have gotten over the past three years, I tend not to think it should bother me too much to lose an opportunity. In fact, I have won more than I have lost so my batting average is still strong.
But 45 years on Wall Street instills in you a desire to win and a dislike of losing. I take loses personally and while I always try to be gracious and assume a c’est la guerre attitude, I will admit that it bugs me to lose an opportunity. In this case I should particularly be happy since the assignment ran the risk of disrupting my summer vacation with my kids and who wants that? But that “note to lose” thing runs deep and I find myself wondering if there is a shelf-life to being an expert witness. I know that timeliness matters, but I also know that seniority is an important credential and few could claim to have been as senior as I was on Wall Street. What I really mean by that is that it is hard to imagine very few people with my level of seniority that want to spend their time doing expert witness work. The reading, the analysis, the writing and the client service (bending to the wishes of the litigators) is something that I enjoy, but I am less certain that others have the patience for it.
I recently accidentally was sent the forward-looking schedule of another expert witness involved in a case with me. He comes from the regulatory side and has spent the last twenty-five years making up for his low government salary by doing high-paid expert witness work. I was impressed when I saw the number of litigations he was currently involved with and the testimony schedule running out eighteen months. It caused me to look him up online. He had served as an expert in 835 cases over the last twenty-five years. That’s an impressive caseload of more than 30 per year by my math. By contrast, I’ve done perhaps three per year. Now, I don’t know what the balance is between too much and too few, but I suspect something in the range of a 5 per year docket would be ideal for me. Right now I have worked on two this year so the one that just got away would have been number three. By all expectations, I am liable to get another case or two this year, so I may still hit my target.
Naturally, like all work, there is a love/hate thing that goes on. I always love to be done with work, like anyone else in the world, but I also love to be busy and hate sitting around waiting for the telephone to ring. Expert witness work is something I do not and probably cannot actively solicit, so I must depend on Sergio and Damiano. They have done a good job of filling my plate in retirement, so I have no reason to feel any undue rejection angst, but I guess that is the feeling that keeps us all on our toes and anxious to win new business. Even in retirement, this cat hasn’t changed his spots so very much.