Waves of Expertise
There are plenty of historians who believe that the world moves forward in waves rather than in anything approximating a straight line. The Strauss-Howe Generational Theory is perhaps the best known of these waves or cycles and it states that there are four 20-year waves that form one full 80-year historical cycle. I have looked at the historical timeline and I find it hard to deny that there is a very clear cyclicality that could easily be characterized as historical waves. In the financial markets as well, those that want to go beyond the underlying fundamentals that drive the markets are often drawn to technical analysis which is the study of the more simplistic movements of price and volume over time. These fractal wave patterns are used by trend-loving investors who like to ride market waves. Both types of waves have the similar characteristic that they are formations of smaller waves within larger waves within larger cycles. if you sit on the beach and stare at the wave patterns in the ocean, you find the same phenomenon. Waves appeal to our sense of order because they take what might otherwise be considered to be random events and put them into some sort of order that we can find some degree of predictability in. The human mind much prefers predictability if it can be rationalized.
My expert witness work seems to also come at me in waves. I often wonder when the flow of opportunities will dry up on the basis of the length of time since I was in the fight on Wall Street. The good news is that this is an experiential business where value is added to an expert the more experience he/she has in the specific realm of expert witness work and even more specifically in the giving of depositions and testimony in these cases. That means that for every year I get further from my direct work experience, the more testimony experience I have to my credit. I would roughly say that the two have balanced one another out and perhaps at the moment my value is actually rising rather than falling. Judging by the number of case opportunities on my plate, that certainly seems validated. At this moment I have given depositions or testimony in five cases which are still pending and in which I have done most of the work but in which I might also still get called to give testimony at trial or arbitration. In theory, all of those are scheduled to go to trial in the next 18 months. Then, I have three other cases on which I have been specifically designated as an expert. Two of them are with a firm for whom I have done two other cases through the deposition stage. Those cases are being brought forward by my client (they are the plaintiff) and they are all defined contribution pension cases. I know one of those will happen between now and November. The other is probably an end-of-year timeframe. The third case is a big international case that is fairly high profile and is moving forward slowly but surely. All of those three cases are on the side of the plaintiff.
Then, in the last two months, four other cases have come onto my plate and I am in the process of interviewing for them. They are a mix of cases with three being on behalf of the plaintiff and one on behalf of the defense. Two involve private equity investments, one is a high-profile hedge fund case. While every case is different and has its own quirks, they tend to involve two common themes. There are those which involve some breach of investment performance where an investor feels aggrieved. The other, which seems to be coming up more and more, is about firms that feel parties or employees/agents have abused their obligation, whether contractual or implied through fiduciary obligation, and for which the plaintiff feels they have been harmed, either damaged in a material sense or in terms of opportunity cost. That tends to mean that these cases are either about bad performance or alleged bad acts (and generally about greed).
The interview process tends to involve a Zoom call and sometimes two. The topics are focused on how well my experience fits the circumstances, assurance that there are no conflicts or extreme biases imbedded, how much testimonial experience I have and the nature of my expert witness experience so as to be sure that I have not given testimony in another case which might be used against me in this case. Then there is the normal reference and reputation check, which luckily in my case, has never been anything but good. There is always some review of the timeframe and assurance that I am fully available when needed and then, last but not least, the fee structure which we require and how we operate as a firm In terms of support staff.
As I review the list of seven cases which I will or might be called to work on in the near term, the first three are just about litigation timing. When will discovery be complete? When will experts have to be identified to the court. When will documentation and evidence be made available for review? When are reports due? How much time do the attorneys want to review reports prior to submitting them to the court? The other four are somewhat timeframe-driven, but more about the attorney’s review of alternative experts and how those can be arrayed to best match their case needs. One of them has asked for a list of my prior cases, which means they are interested. Another has asked for a second Zoom call, which is clear evidence of interest in proceeding. Another has asked for references from other law firms that have worked with me. And one of them is negotiating my rate, and in that situation we know they are anxious to get engaged quickly since they have run short of time to submit their experts.
My last deposition was in mid-February, which worked out perfectly with my trip to SE Asia. I had some light transcript review work in March, but have otherwise been pretty much idle for April and May so far. If anything, these months are feeling like my marketing months as I stack up my work for the remainder of the year. I had a very busy and consistent past ten or so months and once this current pause ends, I think its fair to say from the backlog that I have a pretty full dance card for the rest of 2024 and then some follow-through into 2025. Assuming I get, say, five of the seven cases which are on the hoof, I could easily have a docket of eight or nine active cases to juggle. So far in my five year expert witness experience, I have not ever been too busy to handle the load, but I predict that I may run into that situation in the next year if things fall into place as they seem they are. As I step back and think about the ebbs and flows of this business, I am finding that the variety of cases and the waves of business simply suit me. I’m not sure how long history will continue to repeat itself and whether I’m in the first second or third turning on the expert witness wave for me, but I’m prepared to continue to ride the wave as long as it finds its way to me.