Engaging Experts
After 25 years helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On this podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Engaging Experts
Engaging with Business Law Expert, Professor Stephen Diamond
Use Left/Right to seek, Home/End to jump to start or end. Hold shift to jump forward or backward.
In this episode…
Our guest, Professor Stephen Diamond, is an Associate Professor of Law at Santa Clara University and an expert witness for law firms on a wide range of business and governance issues. He is a published author, researcher, and recipient of an SSRC MacArthur Foundation Fellowship in International Peace and Security. Professor Diamond holds a JD from Yale and a PhD in Political Science from the University of London.
According to Professor Diamond, having a great deal of expertise does not necessarily correspond to being a great testifying expert witness. The ability to use your knowledge and experience to research and opine upon the specifics of the case’s unique fact pattern differentiates the two, which comes with experience.
Check out the entire episode for our discussion on encouragement from attorneys, when to say “no” to engagements, and the importance of frank conversations.
Introduction to Professor Diamond
Speaker 1This episode is brought to you by Roundtable Group the experts on experts. We've been connecting attorneys with experts for over 25 years. Find out more at roundtablegroupcom.
Speaker 2Welcome to Discussions at the Roundtable. I'm your host, noah Balmer, and today I'm excited to welcome Professor Stephen Diamond to the show Now. Professor Diamond is an associate professor of law at Santa Clara University and expert witness for law firms on a wide variety of business and governance issues. He's a published author and researcher and the recipient of a SSRC MacArthur Foundation Fellowship in International Peace and Security. Professor Diamond holds a JD from Yale and a PhD in political science from the University of London. Mr Diamond, thank you so much for joining me here today at the Roundtable. Thank you, noah. Let's jump into it. You're an established attorney, academic and researcher. How did you first get into expert witnessing?
Speaker 3first get into expert witnessing. Well, I joined the faculty at Santa Clara Law School in 1999 after five years of very long hours as a corporate associate at two major law firms, and it wasn't until I got tenure that I turned my attention to the possibility of engaging in, to the possibility of engaging in some outside work, consulting and expert witnessing. And actually it was purely happenstance. I got a call out of the blue. I'm not exactly sure how it happened. There may have been someone who said, hey, that guy might be perfect for you. I don't know. But a law firm San Francisco-based law firm gave me a call and I met with the lawyers and that was my first expert gig. It went through a report and deposition testimony, did not go to trial, as many of these matters often do not end up in trial, although I've testified at trial, and that was sort of the starting point.
Speaker 2As an attorney had you had a lot of experience working with expert witnesses in your practice?
Speaker 3Absolutely none. So my expertise and of course there's a difference between being an expert witness and having expertise, that's an interesting question. But my expertise, my background, was as a transactional lawyer as opposed to a litigator. So you know, to be honest, it took a while before I ended up in trial testimony and I think I joked with one of the attorneys oh so this is what the inside of a courtroom looks like, right, stealing a line from Tom Cruise. And so no, my background was in transactional law, representing particularly my four years at Wilson, sonsini, goodrich and Rosati, the major leading law firm in Silicon Valley, doing a lot of work with high-tech companies. We just never I mean very, very limited interaction with the litigation side of the practice.
Speaker 2So tell me, what's that phone call? Like you as an attorney who hasn't really used expert witnesses gets a call to become an expert witness. How does that phone call go? How do you vet the other attorney and decide if you're the right person for the job?
Speaker 3You know, I think, because I knew nothing, I feared nothing and I just dove in, and they never complained.
Speaker 3In retrospect I think I would, of course, done that first gig very, very differently, a little bit like the first pancake. But I think maybe that's essentially even if you have had some prior exposure or have some sense of what it's all about, you would still have these transitional issues before you kind of pick up on what's really at issue, what the trier of fact, the judge and jury, are looking for if you end up at trial, and, of course, every step of the process, you're keeping in mind the fact that you may eventually end up giving trial testimony. And so I think it takes several of these for even, I think, someone who has some prior understanding of the process, even a litigation background, to put yourself in that seat as an expert witness, which is a very unique role, a very unusual role in the courtroom process. So I think it takes time, and it just takes several gigs before you begin to iron out the kinks, some of which can be pretty significant, as you move forward.
Speaker 2Tell me about that deposition. How is it, for the first time, getting peppered with questions as an expert witness in a deposition?
Speaker 3Well, I think in retrospect I'll just be very, very frank I made the classic mistake of assuming, because I had expertise, that I was there for a really good testifying expert and so it was a really good learning experience.
Speaker 3Again, I don't think I gave away much ground. It was relatively limited business law matter involved limited liability companies, llcs which, of course, are the fastest growing form of business organization and one where it really does take a good deal of experience to unpack the issues at stake in the context of LLCs, and so you just sort of realize you're in for a grilling. But, as I said, I had two very patient, senior, experienced litigators working with me who were very encouraging, very supportive, and I think they felt they had, from their perspective, probably oh, this is someone who will come across as a real world expert, not a professional expert, right, and I think that's another aspect of this. And I think that's another aspect of this and my major focus is my teaching, my research, some business consulting, and I'm available as an expert, but it is not my central career. So I hope that I continue to actually bring expertise into the expert witnessing context and I think that can be valuable in the right circumstance.
Speaker 2You've touched on a little bit, but I'd like to dovetail. Let me know what is the daylight? What is the difference between expertise and being an expert?
Speaker 3Sure, you know, by expertise, of course I kind that 10,000-hour rule. If you've worked on something for 10,000 hours you develop expertise and I think my five years in corporate transactions I developed an expertise. It was certainly 10,000 hours right, because you're working. You know, in the 90s we worked at a 2,500-hour pace, a billing hour pace pretty much. I started in New York at Latham Watkins and then moved after a year to Wilson-Sonsini in Palo Alto and it was basically nonstop. So you know you were doing deals constantly and from startups to major public companies M&A, ipos, venture funding, intellectual property issues, startup formation, startup governance.
Speaker 3I served on the board of two startup companies. I later served on the board of a publicly traded company that had been a client. So I'm in that world in a sense, and still am to a certain extent, and then I teach from that material and that experience. But when you are engaged as an expert witness, it's usually based on a very specific set of issues that are relatively narrow and good legal teams and most of the teams that I've worked with I would consider very, very good, right, they've already thought through precisely where it is. They think they need the trier of fact to hear from an expert in order to weigh in on that issue.
First Steps into Expert Witnessing
Speaker 3And so then it's a question of whether there's some element within your expertise plus your own ability to analyze the issues do the research that's necessary, conduct whatever examination is necessary of the record to draft, typically draft a report that's focused on those issues and centers in and this is essential to, I think, crossing the bridge from expertise to being a good expert, listening to what the lawyers are looking for, because you're going to waste your time, their time and, more importantly, the judge's time and the jury's time. If you know, in other words, if you don't listen and you're not focused, it's not going to happen, it's not going to go well. Right, and I think that's really the primary issue, and someone with expertise thinks they know a lot about a lot of things, and they often do. 99.9% of those are probably irrelevant. The 0.01% could be directly relevant and of significant value for all the parties to the matter to hear from you.
Speaker 2One of the things you mentioned were that your attorneys early on and hopefully going forward were very encouraging and helped kind of show you the ropes and walk you through it a little bit. What are some of the things that attorneys can be doing and should be doing with newer expert witnesses when they're just getting started? How do they best prepare a newer expert witness for depositions and reports and trials?
Speaker 3Well, obviously they have to tread an important line, right, they're bringing in an expert to aid the trier of fact, not to be an advocate, right? And yet at the same time, of course, they want that to be effective in the interest of their client and the issues they're litigating. And so I think, number one, making that clear If they're working with someone who's really a newbie like I was right but someone who has a certain ability and background and experience, you just want to help educate them. And I think most individuals, professionals, who are considering making this kind of transitional step, adding this area of activity to their professional life as an expert witness, will know, know, savvy enough to realize oh, you know, this is.
Speaker 3This is a different setting, right, and perhaps someone like me is relatively unusual, literally going from knowing nothing about it to you know but, but, and will then be open to you know if you will being educated, right, a little bit by the attorneys about what it is they're looking for, and then, if you can't provide it, say no, right, I mean you can't, you know it's. You know expert witnessing is a lucrative, you know, lucrative profession if you are successful at it. And so it's tempting to want to say yes to, but it may be the case. You have to think through carefully whether this is right for you, right, and so certainly with working with a relatively new, less experienced expert, making sure, initially, that they understand what the role of the expert is and then mapping out the process, mapping out the timeframes and expectations, right, but then, of course, stepping back and let the expert do his or her their own work right, so that it isn't a genuine opinion that the expert can stand by under the duress of cross-examination.
Speaker 2As an attorney, do you ever find yourself a little bit more assertive when it comes to questioning things or simply asking questions of your engaging attorney?
Speaker 3I mean, I do ask questions, obviously, about making sure I understand what the issues are. I try to listen very carefully in these initial calls to what it is they're doing and then, of course, I turn to reading the complaint and any of the other papers that are available on the matter. And you know you do want to balance not having to do work that you're not being compensated for, right, and you want to be able to, in my view, be engaged prior to giving an opinion, right? So I think you know it is not the role of the expert, when they receive a call from an attorney, to say, oh yeah, I can opine that you are correct, right, because that's not true, you don't know right, and that, to me, undermines your potential objectivity and credibility as a witness or potentially could down the road. So I think it's a question of on your side, making sure that you do get clarity and again and I've had the good fortune most of the time to be working with what I think are really top-notch litigators, with teams that are very experienced, and I've had situations where they've drilled me initially and it hasn't gone forward, because we come up against an issue where we realize, oh, that's not going to work right, that it's not a good fit, and you can't feel badly about that.
Speaker 3As one academic colleague of mine once said to me. Many years ago I was applying for my first jobs coming out of law school and I wasn't getting offers from every single firm. I was very lucky in terms of the number of offers I got, but I wasn't getting offers from every single firm. I was very lucky in terms of the number of offers I got, but I wasn't, and I was sort of expressing disappointment. He said something very clear. He said look, they know a lot more about what would happen to you at that firm than you do. They're doing you a favor, right. And so if you engage with a firm that asks you certain questions and it doesn't lead to an engagement, that's not necessarily a bad thing, right. So that's the importance of that first interaction between the expert and the potential firm that's going to engage you, or a corporation, corporation because they'll want to know if it's a good fit and that's valuable to you upfront.
Speaker 2On the other side of that coin, do you find yourself turning down any significant number of engagements?
Expertise vs. Being an Expert
Speaker 3I couldn't give you numbers, but yeah, there are situations where I feel as if the you know, look, being a lawyer is tough business, and there are. When you move into the sort of smaller firms, they're under enormous pressure in terms of billing and opportunities. And if they're under pressure from their clients to get results right, they may push for certain outcomes. And there may be situations in which you say to yourself, well, for me this is not the appropriate fit right. And I think being able to tell some firms or some lawyers up front, look, this is not what I do, but this is kind of off center right. And up front, look, this is not what I do, but this is kind of off center right. And you know, those of us who are in academia, we, over time, we all we accumulate titles and degrees and awards, et cetera, and it's, you know, these are earned right, so it's impressive, but at the same time, right, that's not enough. So a lawyer that just wants to hire you because they think, oh, we put him in the courtroom, that'll be great, even if they're experienced litigators, it turns out that some litigators they have made themselves may have limited experience with expert witnesses. So you have to be cautious to a certain extent.
Speaker 3But generally speaking, I'd say if I turn something down it's because they say to me, oh, we're looking for X, y and Z, and I say I don't have that expertise, right, that's outside of my area and fair enough, we will go look for someone else. Or maybe even I have a referral for them to to work in. You know, for example, I don't have, um, uh, direct exp expertise, a lot of indirect expertise in the non-profit sector. My wife is in the non-profit sector but I don't consider myself credible as an expert witness in the non-profit sector, right so, even though it's, you know, branch, if you will, of corporate law, certainly with respect to the corporate law issues, fiduciaryary duty, et cetera. But there's so many tax and other regulatory aspects to nonprofit work, right, that I would. If someone came to me around nonprofit work, I would look for a colleague or acquaintance in another law school or my faculty. That might be more appropriate.
Speaker 2That's an interesting dichotomy between academia and practical experience. How important is it that there is some split between the two? Can a pure academic or a pure experienced professional be as good of an expert witness as somebody who has both?
Speaker 3oh, I think. So, I mean, I, I think, I, I, I, I mean, I do think. Academics, though, have to go through a process, like you know learning by fire, if you will, uh, uh to be able to understand how you need to shape, to be able to understand how you need to shape academic expertise into usable, applicable, relevant testimony. And if you take a very narrow area where there's a direct crossover, let's say valuation issues or price impact of securities fraud. So these are two big areas where experts are brought in. I don't do valuation per se, although I understand how businesses are valued, but I don't crunch the numbers the way. So, let's say, someone with an accounting or financial Excel spreadsheet background would right. But there are financial economists who do that kind of work, like the security, let's say, the price impact. They don't tend to do, some do evaluation, but some do.
Speaker 3Financial economists do securities related work. They're very interested in capital markets and how, whether stock markets are efficient and how, let's say, inside information impacts stock prices, et cetera. Right, so the quantitative methods are perhaps the same. You don't necessarily need the same level of bells and whistles that you might put into a paper published in a peer-review, that in a courtroom. But you need you certainly need credible, acceptable methods of evaluating price impact of, you know, inside information or whatever fraudulent information on on a stock price. So you've got the same methodology.
Speaker 3Now someone who's sitting trying to get tenure or full professor in a finance department of a major business school right, who now is called into courtroom, he or she is going to need if that's first time they're going to need help in how to shape this into a report that's going to make sense, of course, to a judge, but even more so to a jury, and to a judge, but even more so to a jury, or even earlier in the process, into a report that is going to provide the attorneys the kind of credible impact they want to have on the other party of the litigation right. So that's not going to be an easy task for someone who's going to be an easy task for someone who's sitting in an academic office setting, crunching out peer-reviewed papers and then turning to being an expert in court. You can't just walk across the hall or down the street and do that, but you can get there if you're interested and, of course, they're really, really good financial economists and valuation experts who have both academic and real world experience.
Speaker 2How do you maintain that experience? Obviously, you're a researcher. You're a well-published researcher. Do you go to any industry things or trade events or anything like that? How do you stay on top of such a broad number of fields, even though they are interrelated? It is a rather broad expertise.
Navigating Attorney-Expert Relationships
Speaker 3Yeah, so my background as a political scientist is not the kind of thing that I think is ever likely to end up in court, but that's a whole other world. Dealing with international relations, development, economics, range of issues. There is some crossover with my academic, my economic work, because I've been working on climate change and there's an interesting impact on climate change in the developing world. But you're right, that's kind of separate. But when it comes to the business issues and financial issues, well, I live in Silicon Valley and so I'm literally in my I'm at home now and I'm literally surrounded. I could walk in any direction, knock on a door and probably find a current or retired Silicon Valley executive. You know, and I'm teaching and, as I said, I've had board seats and advised startups. I'm right now working on advising a venture capital fund and a very interesting life sciences startup, um, so it's it's just sort of in the mix here.
Speaker 3I think you mentioned that you live in nashville, so I imagine you hear a fair amount of music yes, yeah, that's absolutely accurate and so you know, this is silicon, this is the nashville of of of high tech and business law, uh and uh and so yeah, and then of course I teach uh at the law school and I have got these amazing dynamic students, many of whom are coming in and out of the technology sector. They're being recruited or working in internships and associate positions in the law firms and in many of the local companies where stones throw from Cisco and Apple and Intel and Google and Facebook right are all within essentially 20 minutes drive. So that's just the world I live in, right Self-consciously. I moved out here in 1995, just as Netscape was going public and so so, so I have both teaching, research, consulting and then expert work.
Speaker 2Do you find that your role as a professor aids you, as an expert witness, in particular, with something like connecting with juries? I imagine that it's similar to connecting with your, with your students. Yeah, absolutely, I mean, I imagine that it's similar to connecting with your students?
Speaker 3Yeah, absolutely, I mean. I think that's a very important point because I always try to keep in mind from the get-go about the potential eventual idea that you end up in trial in testimony. I've been only in judge trials though so far, which is interesting, um, but but uh, I do think even judges right are looking for sure exactly clear, short, concise, to the point explanations.
Speaker 3I did have one judge kind of admonish me why are you drifting around in these other? And I was like I I I'm very, you know, very concise usually and I was like one he knew, but in his head, basically one iota off the subject in any direction. He was like, rein me back in, keep it focused, which was great, and I picked up on that right away. But but, uh, and did not forget it, and the case came out our way of very, everyone was very happy, but um, but um, uh, no, I think Um, but um, uh, no, I think I think the um.
Speaker 3The way I train my students in business law, one of the key aspects is, uh, explaining that.
Speaker 3Look, one of your key roles is being able to explain complex legal concepts or issues to business people, right, and one way of thinking about it tell them is you, you, as lawyers, know there are rules, that there are boxes that you have to fit into. Business people either don't know that there are boxes and rules or ignore them. So you, you have to explain these things and keep them out of trouble, right? And so that process of being able to break down somewhat arcane legal subjects based in case law, which is difficult for people who are not lawyers to really grasp in deposition testimony that you know how to do that right so that the other party understands that when you're on the witness stand you will be able to communicate clearly your opinions. And they may not want that to happen right, but I think that's an important skill and there is some congruity between explaining complex concepts, working with students on developing an understanding of these legal issues and then communicating them to a judge or jury.
Speaker 2Expert witnesses have told me that they've found visual aids and multimedia to be effective with connecting not only with juries, but even in a bench trial situation with the judge or whomever the trier of fact is, even if it's an arbitration and certainly in reports there might be a graph, something like that have you had experience using visual aids in your role as an expert witness and even, similarly, in your role as a professor?
Speaker 3Well, certainly, as a professor, I use it every day, right, because I use PowerPoint and I'm attempting to organize ideas and frame that for students. So far that hasn't happened in testimony. I think it could be of value, especially when you get into business structures testimony. I think it could be of value, especially when you get into business structures, and I think we might've been headed that way. For example, I was involved in a case a number of years ago involving a real estate project, and real estate projects have a complex sort of waterfall structure and multiple layers of LLCs and other structures inside it.
Speaker 3Unpacking all of that visually is important and I think if we'd gotten to trial we would have thought about that and that very first case actually we were actually prepared to prepare some visuals and the law firm brought in a visual aid expert who would have worked with me to do that. But I've never gotten to that point and it turns out that actually by the time you get to trial, I've had some trial testimony go on more than a day, but it's relatively unusual. It's usually fairly short and you've narrowed down from an expansive set of issues that you might've been looking at early on in the process to the one or two that the lawyers feel the judge really needs to hear.
Effective Communication in the Courtroom
Speaker 2You've worked in both state and federal venues and also across several different areas of law within your fields. Is there a significant difference in either preparation or having to know certain distinct things about the state or particular laws that experts should be aware of and make sure that they ask attorneys before engaging in a new venue or area of law?
Speaker 3Well, certainly what happens is I will get calls typically because I'm based here. It's not unusual that the call is because I'm based in Silicon Valley, based in California, and California has its own. Of course, every state has its own corporation's code or corporation's law and they all now have their own LLC statutes, right, limited liability company statutes. So there are particular. You know, there's a particular familiarity you'll have with how judges and the courts have interpreted those statutes, and so I think lawyers will be looking for that kind of expertise.
Speaker 3When it comes to federal court, let's say securities law, this is not an issue. I mean, there are of course, differences among the circuits about certain standards and you get circuit splits occasionally on key issues. But if you're sort of opining on whether or not there should have been disclosure or the impact of this kind of business decision, it seems less of an issue. That kind of particularity decision. It seems less of an issue that kind of particularity. And I've not yet heard a law firm indicate that that was really a concern when it comes to being in federal court. But I imagine it might be in some circumstances, but I just haven't encountered it yet.
Speaker 2I'd like to move to the more general. What are some of the aspects of the relationship between the attorney and expert that really make for a positive engagement? What are the things that experts should be looking for or doing and attorneys, similarly, should be looking for or doing just to make sure that everything goes smoothly and proper and positively?
Speaker 3Well, I think for me, the most helpful thing is fairly regular communication that gives me a clear sense of when things are due and what the timeline is. I've had any number of instances and this is true with larger firms and smaller firms or even sole practitioners. Uh, solo practitioners, uh, where you know it, it, you just just go silent and you, you know, you, you, you know it's not my full-time gig, so I have other things going on. Obviously, uh, you want, you want to be able to plan and organize your schedule and make sure you have the time blocked out. So I always hope for you know, again, I recognize their life is probably a lot more hectic than mine. So I'm really, you know, maybe it's not quite the right word, but generous with not taking it too. I never take it personally, right, I mean, it's not personal, it's just not personal, right. But you know, that's obviously a real advantage where you get clarity. It also helps that when they do contact you and engage you, they're ready to actually use an expert and you want the work to go forward, and then you feel like, okay, good, let's get into this.
Speaker 3And um, that's not always the case and and I've had many instances where a matter sits for a long time right and then pops back up even a year later, Right, and COVID, of course, was a big disruptor, Uh, and I noticed, uh, it was very, I mean, basically business just disappeared and then it started to come back up and and and and the momentum started to pick up again. So so you know those sort of timing issues are. You know, it's always helpful from the expert side to get that kind of support and clarity from the retaining firm. Then, of course, being able to clearly focus on the issues that they want opined on, so that you understand the framing of the issues and that is really to their advantage. And then, third and finally and this again is generally not an issue, but occasionally it can occasionally pop up Do they really respect the fact that you're going to give an opinion to the trier?
Speaker 3Of fact? You're not there to advocate for their client, right? I mean, there is that line and obviously they can choose not to go forward with you as an expert and you know if they really feel the opinion won't fit. But you know you want to feel as if they genuinely want to know what your opinion is Right, and you know most of the time. I think they're good at understanding where they think things might end up, and and I haven't heard any complaints yet- Absolutely.
Speaker 2Let's talk about billing for a moment. Do you have any specific terms in contracts that you like to include? In other words, do you prefer to use a retainer? Do you like to do a project rate, hourly rate? How do you like to organize your billing?
Professional Boundaries and Billing Practices
Speaker 3But one of the things I'm kind of surprised at, given the transactional background I have in the world of M&A, mergers and acquisitions and securities offerings that I did for a long time there are a lot of standard forms. They all get heavily negotiated, but there's at least a standard template. The industry relies on underwriting agreements, for example, and that's not true, apparently, in the world of experts. I'm trying to think of a single circumstance in which the client or the law firm sent me a form engagement letter for expert witnesses. It may have happened once or twice, but they typically tend to rely on me and I have a very standard, simple form that I use and I will tweak it as needed. But I try and keep it simple and straightforward because if it isn't going to work out we should walk away and there is a dispute resolution mechanism in there. But I hope that never has to happen and it hasn't come up in 18 years, so 16 years of doing this.
Speaker 3So but hourly rate I work, you know I like to just a simple hourly rate. You pay me for all of my time If there's travel or other expenses reasonably reimbursed. These days travel is relatively rare, but it could happen. I personally still work generally remotely due to COVID, because we have a disabled son and that's sort of an important caveat. That may be not true for many experts. If I were called to testify in court in person I would do it, but I try to keep it remote via Zoom if I can, and that's worked out pretty well and I've done trials in court, I've done on Zoom and it's actually quite effective, quite efficient I think. But otherwise I keep the structure simple. I like an upfront retainer, a relatively modest amount. I apply it against my first few hours. I these days keep it non-refundable, just so everyone has some skin in the game. But it's not a large amount of money. I try to maintain some flexibility in that regard. Obviously, if I'm seeing a repeat client, I'm more flexible, right, the biggest concern, I should say.
Speaker 3I guess, now that we're talking about building issues, it does appear that all lawyers and law firms have different methods for deciding when they will pay people, which I find kind of interesting because of course they're in the business of billing their clients. I always tell my students look, one of the reasons we get so many lawyer jokes from our business clients is because we as lawyers, that is, are a cost center, right, and we usually like to be paid on time and in cash, and that's not. You know, that's something that business people sometimes bristle at, right. So you know, on that side, the lawyers, you know you would think, okay, let's make sure we do this right with the expert witness. But you know, sometimes payments can stretch out and if they are a smaller firm or a solo practitioner and they're working with an individual client as opposed to a corporation or another business entity, right, you have to be ready for that.
Speaker 3For example, I've done a lot of family law work, that is, the business issues related to family assets, typically startup companies, venture capital funds, et cetera and those are a special area of complexity and maybe more common in Silicon Valley than some other areas. So in those circumstances you're dealing with single individuals who are in a stressful family situation, and it's even for wealthy, successful executives who might be going through a divorce and a settlement. Cash flow management is challenging, right. So if you're going to be in that kind of setting, you have to be ready for that.
Speaker 2Without giving any specifics. Are there any cases that come to mind that inform the way that you go about being an expert witness good or bad, that made a difference in your career as an expert witness?
Speaker 3or bad that made a difference in your career as an expert witness. You know I'm trying. I think there was probably one case, and I'll talk about it in general terms. That really was a point at which I kind of gained my footing, if you will, and it involved a battle between two very large global technology companies, but they were battling over two very small startup companies that were very, very distant in their past history and there was a battle over the IP and battle over the behavior of one of the founders and it had all sort of rolled forward 20 years later into this big, very expensive legal battle between these two large companies. And it was a very time consuming expert gig, so much so at one point that I you know this shows some of my naivete I called up one of the engagement partners at a major law firm and I said, look, I don't want to apologize exactly, but I realize my bill is fairly large and he just laughed. He said, steve, your fees are a drop in the bucket and I won't read off the number, but the number was very, very large and I was like, oh, I was literally pocket lint for what these firms are spending over this, uh, this fight and it brought in a lot of large firms and when I was deposed there were, I think, five major corporate firms in the room and one specialist they brought in as a litigator to cross-examine me, who was a very well-known solo practitioner litigator. Uh, and the irony was he had once tried to engage me and I said no for an earlier case for conflict reasons. There was a conflict and I should say this we haven't brought this up now that we're talking about it, but it may be useful to you know newer, less experienced experts out there, know your CV and know your life history, even for things that for some reason just haven't ended up on your CV, because if there are three other major corporate firms on the other side of the table in-house counsel and an outside litigator they will find it. So they did. That was actually one deposition where and this is a, I mean, this was just. It still cracks me up, but at the time I was like, are you kidding?
Lessons from High-Stakes Cases
Speaker 3They did bring up an op-ed I had written in the wake of 9-11 about international terrorism. Now I have an expertise, so to speak, on international relations and I actually spent in college. I spent a semester at the Carnegie Endowment for International Peace, studying under a future ambassador to the United Nations on a project on terrorism. I've done research on conflicts in the developing world. I have a book about the Nicaraguan Civil War, I mean. So I actually have some expertise in this area. I wrote an op-ed about how to deal with international terrorism after 9-11. I can't remember now how this got into the, but they tried to ask some question about that op-ed and it really had no relevance. At the end of the day it really didn't. But they were looking for something and what was going on was something that I do think you'll see as an experienced expert over time. If they think your opinion is strong, they will never bring it up in the deposition. They'll rake over your CV and look for something that can undermine your credibility as a witness.
Speaker 2Along those lines. As somebody who's well-published, how do you maintain a database of everything that you've ever said about? Every topic to make sure that you're ready for it Right, you kind of get used to it.
Speaker 3I mean, this is, I have to say, there's one reason why I've never really been interested in the possibility of seriously a public office or some kind of, you know, government appointment. I mean because you do, you know, you hear about these congressional hearings. I did actually get a call once, when the Biden administration first came into office, from some senior people in Washington DC Are you interested in possibly? And I said, as long as it doesn't involve a congressional nomination, throw my hat in the ring, right, it's like, because I just didn't want to have to. I have testified in front of Congress, in front of the US Senate, but I was not there as a potential nominee and they weren't. My CV was part of the record, but none of the senators, even the ones who are hostile to my position, was actually a discussion over accounting for stock options Pretty arcane issue. You know they will drill down on your CV.
Speaker 2Speaking of CVs, how do you go about getting work? Have you had good luck with expert witness referral agencies?
Speaker 3Yeah, the referral agencies have been very helpful. I can't say what percentage. Expert witness referral agencies yeah, the referral agencies have been very helpful, I can't say what percentage. I always enjoy getting a call from the expert agency like Roundtable Group because I know it's going to be a professional experience and I think that's really valuable and I have a large law firm background and I prefer working with large, established law firms. I will also work with small firms and solo practitioners and have done a lot of that in the Bay Area and elsewhere. But the nice thing about groups like Roundtable Group is there's accumulation of experience, there are contacts. It's a streamlined and efficient experience. They're good at communicating. Sometimes it's out of their control and so there have been times where six months later I get an email saying they finally decided to go in another direction or they finally decided they don't need an expert.
Speaker 3And I realize of course that's not RTG's problem, but at least there's always, and sometimes I say, what was that matter that we were talking? But I'm always happy to get that call or email Sure absolutely.
Speaker 2Before we wrap up, do you have any last advice for newer expert witnesses in particular, or even attorneys that are working with newer expert witnesses?
Speaker 3Attorneys. I mean, I think I actually have. I was just as I was thinking about doing the call with you. You know, the one thing I think there ought to be more of is more attention paid to the role of experts in law school, and one thing that Roundtable Group might think about doing is working with some law schools about doing some roundtables, you will, about the role of experts, um, and so that that law students get exp.
Speaker 3I never got exposure to well, I went to yale. There are a lot of things we didn't get exposed to about how to be an actual lawyer. That's a whole other conversation, um, but uh, uh but um. You know, I'm sure some law schools that you know, in the litigation classes there are people are paying attention, but it's really isn't that kind of focus and it's really an important area for litigators. So um, uh. You know, I think that's that's important is for for younger lawyers to learn how to handle experts, um and uh, um, and then for the for the newer experts. People are looking to do this, have very frank conversations with colleagues or friends. So if I were, if you know, if I refer a matter to someone, let's say on my faculty or another faculty who I know hasn't been an expert. I always indicate a willingness to talk to them about it right Sure, and give them some insight on what's really expected in these circumstances in terms of work, product compensation, managing the relationship with the law firm, et cetera.
Speaker 2Absolutely Sage advice. Thank you so much, professor Diamond, for joining me here today at the Roundtable. Thank you, noah for Diamond for joining me here today at the Roundtable.
Speaker 3Thank you, Noah, for the time and opportunity to talk to you today.
Speaker 2Absolutely, and thank you to our listeners for joining me for another discussion at the Roundtable Cheers.
Speaker 1Thank you for listening to our podcast discussions at Roundtable. Our show notes are available on our website, roundtablegroupcom. Subscribe today on Apple Podcasts or your favorite listening apps.