The Continuance of Life

The Continuance of Life

Over the weekend I spent five hours preparing for giving testimony as an expert witness in an arbitration hearing that was scheduled to start today and was to be advanced and ready for my expert testimony and cross-examination tomorrow morning. You have to have a thick skin to put yourself out there as an expert witness. Part of the game is to let the opposing counsel have at you as to your qualifications as an expert and effectively to lay all your lifelong foibles and missteps bare for discussion before the court. Did you shoplift that candy bar from the bodega of your childhood? Were those tombstones on the edge of town really already kicked over that night you got stopped in high school by the cemetery? What was that incomplete in second year Art History about during college? And was every step in your forty-five year career all that brilliant or did you fuck up once in a while and have a career setback? I’m reminded in that great courtroom scene in Oscar-winning Kramer vs Kramer when Dustin Hoffman is asked his salary and his wife’s attorney (Meryl Streep is suing him for custody of their child, which she had previously abandoned) says to him, “You’re just working your way down the ladder of success, aren’t you?”

But Dustin was the defendant, and I am a paid-for expert who must take the flogging since I am being paid to take this beating. There is a strange balancing act that goes on around expert witness testimony. I am always asked my hourly rate. If it is too high or higher than that of the opposing expert witness, I am looked at as a mercenary who can be and probably was bought and paid for regarding this opinion. If it is too low or lower than that of the opposing expert witness, I am looked at as the dime-store version of the expert witness field. If, as is generally the case for me, I have a considerably stronger resume and more direct experience than the opposing expert AND I am still cheaper than the opposing expert, I am looked at askance as someone who, despite years of work, has either squandered his wealth or has a sketchy reputation. My standard retort to any judgement about my relatively low fees is that I believe in giving my clients high value. Nobody believes that, but it always sounds good.

The second trip wire in this expert voir dire program is when they ask me if I have ever been a fiduciary. I am generally opining on fiduciary obligations, so it is important to lay out the full extent of my rather extensive experience as a fiduciary and as a professional relying on other fiduciaries. That is what establishes my bona fides as an expert. But the trap is that the questioning then turns to whether I, acting in my fiduciary capacity, ever lost money for my clients. They know the answer to that must, by definition, be yes. No manager has EVER gone through his career without losing money in some way, shape, or form at some time for his clients. Obviously he would not be in the business if that happened too much or too badly. In my case, there were several high-profile losses that were considered newsworthy, so the questioning always turns to something like this, “So, Mr. Marin, when you were a fiduciary and you lost money for your clients, did you ever get accused of bad faith for doing that?” And the answer, fortunately, is no, so the retort is something like, “And yet you feel as an expert that when Mr. So-And-So lost money for his clients he DOES deserve to be accused of bad faith?” And my answer invariably has to be some form of yes, otherwise I would not be testifying for the claimant. Get it?

Well, today I was expecting a call briefing me about how the first day of the arbitration went. This is the first of almost five hundred claims by pensioners against this particular fiduciary defendant. I have been told to gird my loins for one or two of these a week for all of 2020 and most of 2021, all based around the same fundamental facts, but all involving separate claimants, not all claimants as a class. This was to start today and I have been given a schedule for the next eight weeks of scheduled hearings. The Kabuki here is to suggest that we are ready to wage a war of attrition, and we are, to be sure, but it is also, I imagine (I can only imagine because as a hired-gun expert I am not privy to the legal strategies by the law firms that retain me) a reminder to the opposing side that there will be lots and lots of money spent litigating (or arbitrating) 500 of these cases. Instead of my planned briefing call, I got a crisp email telling me that the court had continued both today’s hearing and next week’s. I emailed back to clarify. I have watched enough Perry Mason, The Defenders, Judd for the Defence, L.A. Law and Law and Order to know that lawyers plead for a continuance when they are stalling. So I asked if “continuance” was lawyer-talk for a postponement. The answer was a simple, yes.

Do you remember the movie with Winona Ryder and Angelina Jolie called Girl Interrupted? I liked the movie about a young girl’s eighteen month incarceration in a mental institution, but I loved the title. It was so clever to tell the audience in advance that this was about a girl’s life that was stopped in its tracks and put on hold while the world decided if she was sane enough for it. Well, tonight I feel a bit like Expert Interrupted. I started work on this case in late November. I wrote one report and two rebuttals of four other experts (~100 pages worth). I read countless legal documents, reviewed hundreds of pages of performance reports, researched and read countless articles about the subject investments, calculated and analyzed numerous statistical correlations and then committed my opinions to writing, rebuttal and rebuttal replies. I have even been deposed by the opposing attorneys (there used to be two defendants and now there is one since one settled). I might add that I was told this in passing during my weekend prep and it was all news to me. Paid guns cannot whine, they sit down and shut up. There may be no crying in baseball, but there isn’t any in expert work either.

So after interrupting my Saturday and Sunday at my lawyer’s request, and refreshing my recollections about the case specifics including the distilled four key opinions that characterize my report, I felt very ready for this hearing testimony tomorrow. But that is not to be. We are in continuance. If we had settled I would have reason to be proud though bittersweet (thus ends many expert witness gigs with a whimper and not a bang, but net net and end to a paying assignment). I’m not quite sure about a continuance. I suppose I could console myself that I will likely be paid for several more hours of reacquainting myself with the facts and opinions of the case, but it might start to feel a bit old as well. Professionalism will prevail and it may all uncontinue in two weeks (right when I was heading on a ten-day road-trip vacation). But, so be it. This is the life I have chosen and it is one that suits me and a continuation of life is always a good thing, right?