Time Travel
I have never been a fan of movies that deal with the issue of time travel. The old standard of H.G. Well’s The Time Machine was OK and I must admit I enjoyed the Back to the Future series, but by the time The Terminator came around, I found it was all getting too hard to suspend disbelief. The one that really pushed me over the edge was The Curious Case of Benjamin Button, which just struck me as absurd. Time is a difficult enough dimension for us all to handle in our pea-brains, and the whole idea of an extra dimension with warps and mobius strips and such just take me to places that I cannot make sense of.
I have my own form of time travel that I engage in and its more than just about having and pondering fine old memories or staring at the memorabilia in my office. Its all imbedded in my expert witness work. You see, in that work I am selling my experience. Specifically, I am selling my expertise gained through my experience. It requires me to convince a group of lawyers that on three very separate dimensions, I am the right guy for them to hire to help them take their civil litigation case to victory. The first dimension is my level of expertise. The predominate measure of that is the length and depth of my resume. The presumption is that if I held several high-ranking positions in the particular area of expertise these lawyers feel is at the heart of their case, then I must be very savvy in that arena. That is a very reasonable assumption, but there is more to just what’s on paper. They basically need to drill down during their voir dire to determine is I actually dealt specifically and directly with the issues at hand. That requires me to go back and remember the various incidents in which I happened upon similar circumstances as the issues being adjudicated. I must dredge up memories and instances that help prove the point that my experience is directly relevant to their case and that process of dredging tends to unearth those and many other memories that would otherwise lay in the deep recesses of my brain and not come out under normal circumstances. When you drill down for details, especially in complex areas of financial products or law, you have to cut through a lot of the other nonsense that one’s job, particular senior management jobs, have packed around them. In mining, they call all that stuff the “overburden” that one has to get out of the way to get to the more valuable ore.
The second dimension is authority of expertise. Now that I have established that I have directly relevant experience in the given arena, I have to show that my particular experience qualifies as more authoritative than that of what will presumably be an opposing expert. Sometimes its about going head to head with another very similar expert and just letting the seniority of your old positions speak for themselves. I am in a case right now where two of the opposing experts use to work within the very organization that I ran during the exact reference period in which we are being asked to consider. It is a very compelling argument that my views on the matters are more authoritative than those of people who worked for me. Often times, I am far more senior, or was far more senior at the time, than anyone else involved in the case. I have often said that I may be the most senior person willing to bother to do expert witness business in my fields since it involves lots of tedious reading, lots of writing (which many people do not do with as much facility as I do) and then a great deal of deposition and testimony work that can be very abrasive. It certainly is not everyone’s cup of tea and I, by contrast, find it both interesting and energizing, where others may just find it more trouble than it is worth. Throwing oneself into the fray of litigation is generally something that people seek to avoid, but I find that doing it as a hired gun versus in one’s own affairs is quite a different matter.
That leads to the third dimension. Once I have established that my history connects directly with the issues at hand and that my authority in the particular realm is both credible and compelling, I must be able to stand up to the litigation process, which for some can be very daunting. There is the deposition and then there is the actual testimony. One would think that the later is the more rigorous of the two, but it is quite the opposite. Testimony in a court case or a hearing is a relatively genteel process. There is a referee in attendance in the form of the judge or the arbitrator (sometimes even a panel of arbitrators). They feel compelled to protect the witnesses, even the paid-for expert witnesses. There are rules of the road that litigators cannot generally cross. Especially during the cross-examination stage. Don’t get me wrong, testimony can be tough and cross-examination can pierce through one’s testimony if done particularly well, so one must be on one’s game when on the witness stand, but there is a certain civility to it nonetheless. By contrast, the deposition is seven hours of more or less standing naked in front of lawyers who’s only ambition is to undermine your experience, authority and/or credibility. They want nothing more than to trip you up based on your past or the words coming out of your mouth in the present. There is no judge in the room though the ghost of the judge is often invoked as a threat when needed to get you to answer questions you might not otherwise want to answer…or at least answer in the way that the opposing litigator wants.
I often describe a deposition as dealing with a number of questions posed such as “When did you stop beating your wife?” These are the classic damned if you do and damned if you don’t sort of questions, intended to rattle the expert witness. Anything you say that contradicts your written expert report is a big point for the opposition, so staying true to your opinions stated therein is critical. They want very much to show you waffling even a little on those opinions, so you must know them by heart and stand strong against any and all assaults against them. The more you can cite authority beyond your own experience, the better, but it is always a safe harbor to stand strong based solely on your experience and knowledge as you know it when necessary. This third dimension is usually best displayed by your experience on the stand. How many times have you been deposed and how many times have you given testimony. While previous trial experience as a principal is very helpful as preparation, it is usually not that relevant in making your case for your strength as an expert witness. Therefore, what matters most is what you have done lately in regard to depositions or testimony. It also helps a lot if you can clearly prove that your testimony led to a positive outcome for your clients. This is a more difficult thing to prove, of course, but most cases have published or known outcomes and the more you are associated with victory, the stronger your value proposition.
Preparing and working through all three of these dimensional qualities is my form of time travel. It takes me back into the battles of being a senior financial warrior and the beauty of this form of time travel is that it really doesn’t hurt at all. I get to enjoy the ride and relive the glory without feeling the sword go through my own heart.