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 Entertainment Expert, David L. Simon
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In this episode…
Today’s guest, Mr. David L. Simon is the founder and president of Simon Brothers Media Consulting and Advisory firm. Additionally, he is on the board of directors for Fan Film Limited, where he has produced documentaries for film and television. Mr. Simon is a sought-after expert witness with over twenty years of experience in entertainment litigation matters.
Keeping a record of everything you publish, including interviews, is the best way to avoid situations where your own words are used against you in court, according to Mr. Simon. His hard drive and cloud are “bursting at the seams,” organized with the contents of his long career in entertainment. Even when you take a consistent position on a topic, being able to refer is a boon, because the opposing side will certainly be looking.
Check out the entire episode for our discussion on keeping up in a dynamic field, giving the neutral truth, and working on a team.
Introduction to David Simon
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 Mr David Simon to the show Now. Mr Simon is the founder and president of Simon Brothers Media, a consulting and advisory firm, and he's on the board of directors for Fan Film Limited, where he has produced film and television documentaries. He's a sought after expert witness for entertainment litigation matters with over 20 years of experience. Mr Simon, thank you so much for joining me here today at the Roundtable. You're welcome. Thank you, of course, let's jump into it. So you've been in the entertainment business since wow, at least the late 80s. How did you first become involved in expert witnessing?
Speaker 3Well, I've been in the entertainment business actually since the mid 70s, wow. But uh, I got involved in, uh, the expert witness business sort of um. You know, I didn't plan on it opine on a case involving a logo, which was something I had a lot of experience in over the years.
Speaker 2Is it something that you were actively seeking out, or did they just find you?
Speaker 3They just found me. I really hadn't thought about it before.
Speaker 2First of all, when was this? How long ago was it when you first got?
Speaker 3these first calls, I'd say 1995.
First Steps into Expert Witnessing
Speaker 2Okay, so it was in the mid-90s when you started expert witnessing. You'd been in entertainment for a long time and you get this call, and so what sorts of things did you think about expert witnessing? What were your expectations heading into this first engagement?
Speaker 3Well, I think the first thing is you have to look at whatever the case is and determine, number one, whether you're the right person for it and also, you know, depending on whose side you're on the plaintiff or the defendant you really have to decide whether or not you agree with it, and that's the way I've approached it from the very beginning. Uh, and that's the way I've approached it from the very beginning.
Speaker 2Sure, how do you make that determination? What are the sorts of factors that go into into the calculus? Oh, am I the right person for this? Beyond just having the appropriate experience, what are some of the other things, the intangibles, that you look for?
Speaker 3Um, I I think a lot of it has to do, especially now, with the way the business has morphed into a much larger and more complex media, keeping up with what's been going on in the particular aspects of the business in which I am supposed to provide my expert opinion. Sure, so I have to look at the areas in which I feel that I've had the experience, that I'm up to date on what's going on in the in that particular aspect, and you know again whether or not I can, with my hand on my heart, say that I agree with whomever has asked me to opine.
Speaker 2So you talk about staying up to date. Now, every industry is different. For your industry, what are some of the things that you do to kind of stay abreast with what's going on in your field, with the most current thinking and goings on? How do you stay current?
Speaker 3Well, part of it is, you know, working in it and through that I, you know I see changes every day in companies and methods and methodology. And also, you know, it's whether or not you know, I have a I really soak up information about the industry, so I'm reading not just the normal, you know what used to be Hollywood Reporter and Variety or something I'm into a lot of other more specific kinds of data and information related to the changes in the business or the changes in the players of business or the changes in the players of business.
Speaker 2Have you done any industry reporting or written for any of the trade publications or taken interviews or anything like that?
Speaker 3I've had a couple of interviews. I've also written a couple of articles on valuation of feature films and the vertical integration of media companies and especially media conglomerates.
Staying Current in Entertainment
Speaker 2Once you've taken interviews and written in articles and maybe use social media, anything like that, how do you keep track of all the things you've said, in case the opposing side at some point wants to use something that you've said either to twist it in some way, or maybe you've changed your opinion on something? How do you keep track of the different things that you've said over the years and how do you respond when somebody tries to use that to impeach you?
Speaker 3Normally well, first of all, I keep a record of everything my hard drive or my cloud is busting at the seams. But in terms of impeaching me, I've been very consistent in, especially in the cases where it involved valuation of either a television series or a feature film, of either a television series or a feature film. And you know, I feel very comfortable, you know, being able to rebut whatever they're trying to put in my mouth, words they want to put in my mouth.
Speaker 2Does that?
Speaker 3sort of thing typically come up during depositions. Yeah, yeah, it will. I mean not necessarily going back and looking at my articles, but it would be in previous testimony in other cases. But you know it may be boring to hear, but I am consistent in the methodology that I use than a decade actually two decades, as a buyer and a scheduler and even on the sales side of things and working for large companies like Disney and Fox and DreamWorks. So I, you know, I've had that hands-on experience and I've had to make those estimates or calculate based on, you know, comparison, and that involves a lot of different areas to compare.
Preparation Techniques for Testimony
Speaker 2You mentioned a changing landscape. Has that impacted the way that you go about expert witnessing to any extent? Has the changing structure of entertainment and media had an impact on your day-to-day work as an expert witness?
Speaker 3It does have an impact. Um, you know, speaking from, uh, as an ex studio guy and somebody who is either, uh, working with the studio or working against the studio, some of the studios are a lot more difficult to deal with and you're not going to be able to get, they won't commit to anything, so you can't get to the point where there is discovery, for instance. So you're working with, so you're working with. You know an algebraic formula, but it you know I've been able to. In most cases I've been able to build at least a basic model that can be used.
Speaker 2What are some of the preparation techniques that you find helpful when going into a deposition or even going into a trial? Are there things that attorneys should be doing that work particularly well for you?
Speaker 3Yeah, I'm obviously not getting into names or work cases, but you know, some attorneys are working right alongside you and really seem to care about what I think. There are other attorneys and I'm not saying this is wrong they will want me to adjust my testimony based on something they think is important that I don't necessarily agree with or I wouldn't normally use in my testimony or my expert report, and that's seldom.
Speaker 3But, also when you're going into deposition and prepping with the attorney or the attorney and the team. That's very important because you really it's not like you're reading the script, it's just that you're prepared for all the answers and as much as you know I don't get stage fright and it's still sometimes you know you get an excellent attorney on the other side who's really good at trying to get somebody to go, who's really good at trying to get somebody to go, and you know you have to sort of ignore that. And you know when you do take a break, you know some attorneys don't want to talk during the break, which is crazy in my opinion. It's not like they're telling me what to say, they're telling me whether I am hitting on all cylinders, so to speak. Sure, so that's important to be able to have that opportunity before and during be able to have that opportunity before and during?
Speaker 2Regarding not getting kind of frazzled by the opposing counsel is that just something that comes from experience, or are there specific techniques that you use, like do you have a cup of tea before you go on? Or is there something that works for you to keep you kind of calm, cool and collected when they are peppering you with potentially difficult or embarrassing?
Speaker 3questions I tend to I don't really have a cup of you know, losing tempers or whatever is to just slow things down and to not only remind myself but to remind opposing counsel that you know I wrote a report and let's go to the report because on page you know, page whatever, this is what I said, and if you're trying to tell me I said something else, that's not true.
Speaker 2Do you keep a copy of the report with you when you're giving testimony so you can refer back to it? I know that not all jurisdictions I think California is one of them that might not allow it in all situations, but is that something that you recommend? Yeah, I think it is one of them that might not allow it in all situations, but is that something that you recommend?
Speaker 3Yeah, I think it's important, Not only. I mean this isn't like taking a test. You know you're not trying to. You know get a good score on the SAT. You're backing up something that you spent numerous hours researching and formulating and writing clear that you know the expert witness should be able to refer to the report that they're questioning me about.
Speaker 2What are the things that I've been exploring lately? Speaking of reports, are visual aids, both in the context of the reports, but then also during testimonies, in particularly trial testimony, when the jury might be looking at it. Do you have experience using visual aids and, if so, what works?
Working with Trial Teams
Speaker 3I think, if you're trying to prove a point, that let's, for instance, that some producer ripped off another producer's idea. Visual aids are really good, whether they're static, you know, as a photograph, or a comparison photograph of two, or a clip, um, or sometimes it has to do with, uh, audience research or demographics. Uh, that proves the point. You know you you're ripping off my kid show. Well, no, I'm not, because actually, look at the demographics, right, that I'm, you know, representing and the demographics are, you know, women, 18 to 34.
Speaker 2So when you do employ these sorts of demonstratives, do you put those together yourself, or does somebody from the trial team help with that?
Speaker 3It's a combination. Sometimes I have something that is, you know, perfect and I'll, you know, bring it up to the team and they, you know, wow, that's, that's great, let's put it in. The other would be. You know, if you've got a really good team with resourceful people, they'll be finding things. And what's interesting is and I find this in expert testimony and cases anyway is that you know for an attorney who's not an expert in a particular field, whether it's entertainment or it's medical, or it's you, it's steelworks or something, or airplane building. But I'm very impressed with several of the legal teams I've worked with who have they have the basic understanding and they ask me the right questions to just get them over the top. It's like doing the high jump, you know, and you need that extra quarter inch or millimeter or whatever they call it now. But that's really important to me. It makes it. I think it makes the whole team feel comfortable and we end up with a better report and a better deposition. And if it goes to court or arbitration, you know your testimony and that's the most important thing.
Speaker 3The times that I've worked with people who have a limited understanding of what they are complaining about is difficult, because unless they're open to me wanting to tell them. It's kind of hard to keep on saying but you're going down the wrong road and no, I wouldn't say that or I wouldn't have done it that way. And you know the people that I'm working with have their senior partners and the senior senior partners managing partners. You know, if it's a big case they're, they're putting pressure and that pressure then comes down on the expert and I've only had a couple of times where that's happened and it'll work down the end. But I would feel more confident for the case. You know it's like when people hire me as a consultant, you know the first thing I tell them is I'm not going to tell you what you want to hear. I'm going to tell you the truth or I'm going to tell you how it really works. And you know that sometimes just right away you'd say you know what? I don't think we're going to work together. That has not happened, by the way, with Expert Witness. That has happened in consulting.
Speaker 3I pride myself on the knowledge and experience and expertise that I've built over the last almost 50 years and it's, you know, to have somebody it doesn't matter what age they are, they could be 65 or 35, to tell me no, that isn't what we want to say, but that's not the case. And that isn't what we want to say and as it, but that's not the case. And and that isn't something I can, you know, like I said before hand, on heart tell you. That's what I really believe. So there are times when, when you just have to be brutally honest, and I, you know, I'm, I'm, I'm very, I'm a team player, you know, and if I can try to maneuver certain things in a certain way that isn't uncomfortable for me, I'm all for it.
Speaker 2Sure, like if you can provide, for example, an alternative, maybe that gets you to the same place, but that you feel better about.
Speaker 3Exactly, exactly.
Speaker 2You would. We talked a little bit about trial teams. What is it like working on a bigger team with that might have several attorneys, might have multiple experts? To what extent do you interface with all of the different people, or do you do mainly work alone? How does a trial team work?
Speaker 3That's a really good question. I've worked with. You know solo lawyers, you know who work out of their office at home but have a great case home. But have a great case and you know either they knew me from previous life or whatever, or they were recommended. I was recommended by somebody we both know and that's a lot easier and less potential for confrontation, and I don't want to overdo that.
Speaker 3Using confrontation is probably not even the right word, it is misunderstanding. Working with a large team with you know national, you know offices in, or international, for that matter, you know in LA, new York, chicago partners are people you know that everybody, both attorneys and non-attorneys, bow down to because they're so well known and have accomplished so much. The direct contact or the direct person the attorney that I have the most contact with and the one who basically hires me will get pressure, whether it's from another partner or from another attorney who's handling another expert and and I don't so far I've never worked with any other experts it's, it's always been siloed and I think that's really good because it's up to the attorney and the client, obviously, what they want to use and what they don't want to use.
Speaker 2One of the things that you had mentioned beyond trial teams earlier on was working for both the plaintiff and defendant side.
Speaker 3Not both. I've worked one or the other Right. Sure it would be quite the engagement to be on both sides.
Speaker 2Sure, have you noticed? Is there a significant difference in the way that you work as an expert witness for the plaintiff versus working on the defendant side work?
Landmark Cases and Learning Experiences
Speaker 3as an expert witness for the plaintiff versus working for on the defendant's side. Um, I, I get very um involved in um the case. I mean, I, I start to take it personally, especially when it's something I know. You know, if I'm on the defendant side, uh, then you know. If I'm on the defendant side, then you know why. I mean, it's so obvious that they didn't do anything wrong, and here's why. But at the same time, when you're the plaintiff, how could you know a studio mismanage, the payment of royalties or whatever it is? There really isn't much difference. I mean, I've worked let's see 25 cases, I think now and two of them have been as the defendants expert and the rest of them have been the plaintiff. I will say that the one and I don't know if you were going to ask this or not, but in your notes you had mentioned class action.
Speaker 3I've been involved with a few class action cases and I find them really strange.
Speaker 3It's not the cut and dry kind of case that you have with something that's not class action, and it tends to be that the attorneys have not really studied up on the subject matter.
Speaker 3So in my case it's great because they're relying on me as an expert, your other experts, to provide, you know, true and accurate information. On the other hand, if they don't understand it, then you know they might. There have been times when I said, well, you know, this doesn't really matter in the case. I said, no, actually this is the whole case, right here and again. I'm not trying to sell myself here at all, but I find that, you know, I just want to have a great relationship with whomever I'm working and you know it's usually the senior and then the of counsel or a newer attorney who's getting their footing, and it's good. I mean, it just depends on the team and personality doesn't really enter into it, although I do appreciate working with younger attorneys who don't know our business at all and telling them stories from my past, and they just, you know we go off on tangents because they want to hear more stories about Rupert Murdoch or Steven Spielberg or something. So yeah.
Speaker 2Does that kind of rapport enhance the engagement? Does being in that kind of collegial environment ultimately help the end client? Just because you're in a good mood, you're doing your best. Is there something to that, or does it truly not matter?
Speaker 3No, it does matter. That collegial atmosphere and relationship is really important and when it's really really top drawer, it's when not only the people you're working with directly, but their bosses, their partners, they report to or they'll come into it every three meetings or and and you know if some, because they're also looking at from 30,000 feet up and they might see something. You know what, if you push this a little bit more, do you feel comfortable with that? And I love when they ask that question.
Speaker 2Yeah, yeah, absolutely, and that reflects what I've heard from other expert witnesses that have been on the show you had mentioned earlier, just kind of in passing, about arbitration, have you done any alternative dispute resolution sorts of actions?
Speaker 3Yeah, I have. Unfortunately, they haven't gotten to the point of sitting in front of the arbitrator. Ah, I see. And you get to that point where you know, okay, next Tuesday you're on and we're doing a deposition, and then you know, the following week you're going to testify. That's usually when they settle.
Speaker 2Sure.
Speaker 3And that's fine. I mean, you know I'm not doing this, you know I don't sit there with, like a cab driver they still have cab drivers, right? I mean, if anything, I think I give away more than I. Well, anyway, you know what I'm saying.
Speaker 2Sure, sure, absolutely.
Speaker 3Well, how about in the lead up itself, even if you haven't been? But it sometimes depends on who the arbitrator is, because it may be a retired judge that all the lawyers involved both sides knew and worked in and you know work in their courtroom, or it may be somebody that's got a lot of experience in our business and that makes the approach different. So it's, I think it's not much different. I mean, I know it's very different, you know technically, but you know my job is to put together, you know, my version of the case for them.
Speaker 2Do you still do a report?
Speaker 3Yeah, usually, and I really enjoy doing the reports. I'm not a mathematician, harvard Business School type of guy with charts and things like that, but I am very number oriented and it's a matter of finding evidence and building that, and so there's a lot of research that needs to be done and of course, it's always helpful if you're able to get numbers from you know during discovery, let any aha moments or significantly changed or even reinforced the way that you go about expert witnessing, any seminal cases in your career as an expert witness, of the first ones I was involved in, which is Alan Ladd Jr and his partner versus Warner Brothers Entertainment, relating to 12 feature films that they felt were being undervalued, and I, you know, during that case I I had two, you know, more than eight hour days of deposition. You know asking questions like okay, you know so much about movies, you know what year was Maltese Falcons, like that has anything to do with it.
Speaker 2Did they really hit you with ones like that?
Speaker 3yeah, I mean it's like. But what was great is in Discovery I was able to get a hold of all of their contracts and look at the the titles that our client owned and look at the other titles to see how much they were valued, you know, were they high, low, were they right on and um it. I've used that model pretty much from then. I'm still using it and that case also was Ladd won and Warner Brothers appealed it and the appeals court upheld the original award and judged it with my testimony and my report. So I felt really proud of that.
Speaker 2Of course, does that sort of action being involved in kind of a higher profile case like that, especially one that you're on the winning side of does that lead to more business? Do people call you because of things like that?
Speaker 3Yeah, I have had um, either people referred uh me, uh and uh to similar cases or people with similar cases had found out you know that I was one of the witnesses, one of the experts who was involved in that. So I don't go around advertising, I don't knock on people's doors and ask. You know, I don't knock on people's doors and ask them if somebody is interested, I'm more than happy to help. And you know, obviously, look at it and see.
Speaker 2Along those lines have have expert witness referral services been of value to you?
Speaker 3I'd say a third of my cases have come through referrals and there's only been and it wasn't the referral company's fault, but there was only one that ended up with a client that didn't want to pay and it had nothing to do with me, it had to do with they didn't want to pay anything.
Speaker 2But it was all resolved and I do feel comfortable working with referral companies yourself, or is there anything specific that you like to do in contracts to either take a retainer or have any special terms in there to protect you from those sorts of situations?
Speaker 3Yeah, I generally will ask for a retainer, an Evergreen retainer, so that, yeah, pay me $10. And when I've earned $10, you pay me another $10. Oh sure, important to have mutual trust. And I've never had anyone come back to me and say, whoa, your hour's ridiculous. You know, because they realize a lot of it has to do with research and finding great examples or comparisons. Great examples or comparisons.
Speaker 2Besides the instance that you were just speaking about, where somebody tried to not pay you.
Speaker 3Have you had any other negative experiences that kind of served as learning experiences? Just, you know I prepared. It wasn't the way I was used to in all the other or most of the other cases, and it really is. It's OK, though, I mean, as long as you have the open door and can tell them that afterwards it's a learning experience can tell them that afterwards.
Speaker 2It's a learning experience. Do you typically find that that sort of proactive approach is helpful, when you can just code your attorney and say hey, you know, there's a little bit of a problem with X, Y or Z, Can we fix this? Is that one, something that you usually feel that you do have that ability in? And two, is that useful?
Speaker 3Yeah, on both counts. I have used it and I do find it helpful.
Speaker 2Before we wrap up, do you have any last advice for expert witnesses and, in particular, newer expert witnesses or even attorneys that are working with expert witnesses?
Speaker 3I would do the for the attorneys at least. I would recommend they do the Balkan mind mill with their experts and try and get in their heads. I respect and appreciate how attorneys have spent so much time studying the law and actually practicing and all I ask is that somebody recognize that in return. And again, I'm not saying people don't, it's just there are times when you are you the expert or am I.
Speaker 2Right, right, absolutely Mutual respect is the best policy. Well, thank you so much, mr Simon, for joining me here today.
Speaker 3You're welcome. Thank you for having me.
Speaker 2And 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.