The Comfort of Analysis
In the expert witness business there are four basic functions that one must be able to handle. The first involves reading large quantities of evidence, testimony and reports. I have never been a particularly fast reader. I didn’t get glasses until I was in fourth grade. For some reason, my mother didn’t notice my vision deficiency until it was quite debilitating in school. I just could not see what was on the blackboard and finally the school sent home a note telling my mother that I should have my eyes checked. When that happened it became obvious that I had both a significant astigmatism and was very near-sighted. The result was to get fairly thick corrective lenses. I remember my amazement as we drove home that day from the opticians. I was able to see things at a distance that I had never known existed. It was, literally, an eye-opening experience for me. For all of my remaining youth and through college and my early working years, I wore Coke bottle bottom eyeglasses which were the first thing I put on in the morning and the last thing I took off at night. I was never without my glasses. What that delayed prophylactic did to me was make it more difficult than average for my eyes to keep pace with the increased reading needs I encountered in school. It was an issue of eyeball dexterity much less than comprehension, but it caused me to be forced to read quite slowly. By Middle School, my mother felt this slow reading pace would hamper my education. Therefore, I spent one summer in Maine using a reading machine which forced me to move my eyes faster to keep up with a projected script. It was hard work that really tired me out, but I did it enough to speed up my reading pace to an acceptable, but not terribly fast level (probably about 200 words per minute).
Report writing is also a very important part of expert witness work. Since I write 1500 or more words a day between these stories, books I’m engaged in writing and, indeed, expert reports, writing is not a particular difficult thing for me. Writing is not an innate skill as far as I am concerned. As Malcolm Gladwell told us in his book Outliers and based on the research of Anders Ericsson, it takes something like 10,000 hours or 10 years of deliberate practice to gain expertise in an activity such as writing. The math on that suggest that you can reach that level if you put in 2.7 hours per day, each and every day for a decade. I have been writing “deliberately” since about 1990, so I think it is fair to say that I have over 25,000 hours of this activity under my belt. What that translates into is that the report writing for my expert witness comes quite easily to me. Most reports are somewhere between 30 – 60 pages long, though I have had them go up to 150 pages. None of that is daunting to me since I have written a dozen or more books of 400 or so pages. Sitting down and organizing my thoughts into a written document comes naturally to me. That is no small thing and I find that many people hate writing and stare at a blank page like it is the enemy.
The end-stage of the expert witness business involves the actual bearing of witness. That means giving testimony in a legal proceeding like a trial or arbitration hearing. The process most often calls for the filing of a written report with specific opinions and then submitting yourself to a deposition by the opposing counsel. A deposition provides the other side the opportunity to do several important things. It allows them to challenge your bona fides for being an expert. This voir dire process, as it is called, means “to speak the truth”,and it seeks to establish the justification of experience and domain expertise, the timeliness of that expertise, any biases you may have, and any potential conflicts of interest. The deposition process is a bare-knuckle version of giving testimony and it is intended to be a bit on the abrasive side with the opposing counsel challenging the witness and trying hard to find a basis in his comments to undermine the written opinions in the report. Some people find the effrontery of the process to be off-putting and stressful. There is even specific case law that establishes standards for an expert witness with regard to the relevance and reliability of the expert testimony. If an expert ever gets challenged and overturned, that will be the end of their expert career most likely, so some pressure is inevitable in the process. So long as one remains consistent with one’s written opinions, talks as little as possible and avoids excessive hypothetical answers, it is not so difficult. I contend that the normal pressure and combativeness of the business life, especially at the senior-most levels is much worse than anything one might encounter in a deposition or testimony, but perhaps that’s a sign of the rough and tumble of Wall Street as I experienced it. In any case, I find the deposition and testimony process fairly easy.
That leaves the important analytical stage of the process. After reading reams of background information and researching the technical issues involved in the instruments and/or circumstances, there is a need to analyze the data. That means determining first and foremost that the data being used is the right and best data for the circumstances. Then there is the manipulation of the data into various formulas and ratios that are used to make comparisons relevant to the issues at hand. This is part science and part math, and both those skill sets have always been favorites of mine. I was the typical boy who found math and science to be my best subjects in school, but most importantly, they were my favored topics and activities. I liked math and I liked the scientific process of discovery. When I was getting out of business school, one of the jobs being offered was as a financial analyst. Some people find that title to be rather pedestrian, but I must admit that I have always been proud to be called an analyst. To me, to be analytical was to be intelligent and astute. That differed with accounting in my perception. To be an accountant did seem rote, but to be an analyst was to be a seeker of truth and a good analysis to be as good as any riveting story.
This past week I have been writing an expert report and working with an associate in Sicily who has been doing the data gathering and manipulation for me. The client has wanted the analysis done in a certain way and, of course, the imperative of the expert witness business is that one’s opinions must be objective and independently formed based on one’s own data gathering and analysis. At this point we have considered the different data sources, compared them for consistency with the data used by the plaintiff in the complaint, come up with our own methodology for the analysis and comparison and produced the data charts and graphs to illustrate our points and opinions. I must say that I very much enjoy the process of analysis of this sort and effort has reminded me that there is a certain comfort of analysis that overwhelms me when things work out as well as they have this week. There is nothing that feels more productive to me.