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 Forensic Accounting Expert, Professor J.W. Verret
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In this episode…
Our guest, J.W. Verret teaches Corporate Securities Law and Financial Accounting at George Mason Law School. Additionally, he is a published author, practicing attorney, and sought-after expert witness specializing in securities and corporate litigation, forensic accounting, and fraud examination. Professor Verret holds a J.D. and master’s degree from Harvard.
Professor Verret advises responding to potential engagements within an hour. Even if you are the ideal expert for a matter, attorneys will reach out to other qualified candidates, and it is a race to respond first. Promptness is a virtue for expert witnesses—and that extends to the vetting process.
Check out the entire episode for our discussion on mentors, lining up your credentials, and AI writing tools.
Introduction to Professor J.W. Verrett
Speaker 1This episode is brought to you by Roundtable Group the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at roundtablegroupcom. Welcome to Engaging Experts. I'm your host, noah Ballmer, and today I'm excited to welcome Professor JW Verrett to the show Now. Professor Verrett teaches corporate securities law and financial accounting at George Mason Law School. Additionally, he's a published author, practicing attorney and sought-after expert witness specializing in securities and corporate litigation, forensic accounting and fraud examination. Professor Verrett holds a JD and master's from Harvard. Professor Verrett, thank you so much for joining me here today on Engaging Experts.
Speaker 2Great to be here with you, Noah, at the roundtable.
Speaker 1Absolutely Well, let's jump into it. So you've made a career in academia, but you continue to practice as an attorney and an expert witness. How do you find the time?
Speaker 2Well, to be honest, when I started in my 20s as an academic, my portfolio made sense as I got older and my family grew. I have four boys at home. I have a flexible career, but I have some obligations to meet and this gives me the opportunity to do that. It's also true that practice and expert work makes me a better teacher. I'm able to be both a tenured academic who publishes in academic publications and academic articles that survive the rigors of tenure, but also are written with the design to being useful in corporate and securities law questions that are actively litigated in court. So I find that grounding in the academy true grounding in the academy as a tenured expert makes me a better expert, and my work as an expert in practice makes me a better teacher. So there's synergies all around.
Speaker 1There are synergies all around. Do you use any particular scheduling techniques? Are there calendar softwares or something that you like to use to keep your days organized?
Speaker 2I use Google Calendar. But you know, when folks use Calendly, I respond to that. The world seems to be shifting in that direction a little bit, particularly in your area of the world. Sure, the Silicon Valley folks really love Calendly. But no, Google Calendar does a pretty good job of keeping me in line. And, look, I have a lot of clients with different preferences, so some people are really into Teams, Some people are really into other ways of communicating. So I'm on a lot of platforms and that's just part of as an independent with a lot of affiliations and a lot of roles. You just have to be ready to have a lot of email addresses and a lot of platforms and check them all. So that's just part of the game here.
Speaker 1Be nimble Good advice. So how did you first get started in expert witnessing? Did you get a call out of the blue? Is it something that you were looking for?
Speaker 2It was something that I was looking for. My mentors had done a good bit of that. My mentor was a guy named Professor Lucian Bebchuk at Harvard Law School and he had done a good bit of that in his career. I was, so it was the deep end of the water here. The allegation was that the CEO wasn't straight with the world about his own personal tax problems as a result of some issues he got for putting his options package into a tax shelter that the IRS had deemed void but that he still owed taxes on. So in other words, he had an option package that didn't incentivize him at all because it was worthless, but he still owed a lot of taxes. So he was personally bankrupt. The question is, is that material or not? So I took on the opportunity. I was very young. I still believe I was qualified, but I was very young. It was very early. I went through a seven-hour deposition with a lawyer from Cravath. It was trial by fire, but I survived it. The case settled and I've just been going from there.
Speaker 1So, as somebody who has been through law school myself, they don't prep you a whole lot on being an expert witness what it's like from that side. You mentioned that you had had some mentoring. Did you find that valuable and what, in particular, did you take away from it? What would you recommend from newer expert witnesses vis-a-vis getting a mentor and making the best use of one?
Speaker 2This is hard because most mentoring in the expert field comes from working at expert firms. Sure, there's not a lot of ways to get it otherwise Experience is the best teacher. But that can be very dangerous in expert work because a couple of bad dauberts and a couple of bad testimonies and then your career's over. So making those mistakes earlier. Very dangerous because once you get in a hot seat, you are making a record that exists forever.
Speaker 2I was lucky that I had the opportunity to testify in Congress a number of times. This was right after the financial crisis and before the Dodd-Frank Act. So in a couple of years I had an opportunity to testify in the House and the Senate about a dozen times about corporate governance, securities and accounting issues. No-transcript, looking to get a sound bite and they're looking to make you look ridiculous with a sound bite, and so being in that environment has translated a little bit to the expert environment. It was a good way to learn how to be very disciplined about exactly what you intend to say and to respond to a question with what you have decided you intend to say and to respond to a question with what you have decided you intend to say.
Speaker 1Oh, so it's easy. So new expert witnesses should just testify before Congress to get some experience. It worked for me. It worked for me.
Speaker 2I think for other experts out there you just can't avoid working at an expert firm and backing up another expert as they and just kind of working through that apprentice system.
Speaker 1Speaking of firms, have expert witness referral services been a boon to you? Is that something that has helped you get work and improve your work?
Speaker 2Absolutely yes, especially early on. I have my own firm, veritas, and I have affiliation with you guys, with the expert roundtable, and it's a great combination. I do my own marketing and I try to get myself out there, but I love it when I get a call from you guys and it's always been a case that's very well curated and very well designed for where I would fit already. So a lot of that work is already done, so it's great.
Speaker 1Let's talk about those phone calls a little bit. You get a. You get a call from either the attorney or one of the attorney's representatives, maybe a paralegal. How do you vet that job? In terms of a are you the correct expert in terms of subject matter? And B is it just something that's going to work? Are you going to click with this team? What's the calculus that goes into making that decision?
Speaker 2Yeah, I would say it's three things. First, am I an expert in the subject matter? Am I going to end up with? Assume this goes every attorney thinks everything's going to settle, but assume this goes all the way to trial. What's that Dalbert look like? And I'm sitting in a Dalbert chair for three hours. What happens to me at the end of that?
Speaker 2I don't want to try to take on something that's outside my range of expertise. So far I went through one Darbert experience, got through it and was named an expert in exactly what I was going to be an expert for. That's not to say it's career-ending if you try for something outside your area. But that means that sort of sub area that's going to be used against you, even for other areas where you do have the appropriate focus and expertise. So you want to be careful about that. The other thing you want to do is make sure that you agree with the position. I mean look, I'm not going to get behind a position I don't agree with. I want to.
Breaking into Expert Witnessing
Speaker 2And there's going to be uncertainty and unclear things, and that's not to say you need to believe the person is guilty or not guilty in a white collar criminal matter or you need to believe that one side or the other should win. But for the particular issue you have to agree with. You have to understand the particular issue you're being asked to satisfy about. You have to agree with the position. You have to strongly agree with the position. It's better to let something go than pursue it, um, if it's not the right fit. And then thirdly, yeah, professionalism. Um, am I going to have to hunt you down when the retainer is empty and it's time to replenish the retainer? If that's a part of the engagement and that's usually part of the engagement that I prefer, um, if that's where this is, then I don't want to take that job either.
Speaker 1One of the most difficult things for newer expert witnesses is saying no, because they may not have as many opportunities as somebody with a long and storied career such as yourself. When you were first getting started, did you turn down a significant number of potential engagements?
Speaker 2I actually erred on the side of turning down and I probably turned down things that I could have pursued. Sometimes you wish you could go back to those. The other lesson I learned is that when you get the phone call, you need to respond right away, within a few hours. Doesn't matter if you're on vacation, doesn't matter what. I had an experience where there was an opportunity I really actually wanted. Um, I had. I didn't set my faculty uh voicemail up to auto forward to me, so I just wasn't in the office for a day or two. I missed an opportunity because someone called and then they called another expert a few hours later and they picked that expert. So you better believe now, if you leave a message on my faculty voicemail, I'm going to get an email about it within a couple of minutes and I'm going to respond to you in a couple of minutes, even if I'm at family dinner or whatever, and we're going to chat right away.
Speaker 1So don't wait, absolutely Okay. So you've taken an engagement and you've decided that you're the right fit, and then you you meet the trial team. Have you worked on fairly extensive trial teams that might have multiple lawyers and multiple experts?
Speaker 2ways it was heartbreaking because the defendant was ultimately found guilty in that matter, but in some ways some parts of it, where the lawyers rented a house in dc and the three or four lawyers and two or three experts all lived in that house. I have to live in dc already so I didn't get to stay in the frat house with them, but they had this sort of frat house for for a month and the lawyer's dog was there and it was just, you know, 18 hours a day prep for trial or when the trial started, go to trial, go home, get a bite and then we're prepping. So I spent a lot of time in that little frat house and and made some made some bonds for life and friendships for life as part of that experience.
Speaker 1And you know that's important and it's something that I hear from newer expert witnesses. They're not exactly. They're not exactly sure how to go about meeting other experts. Are there besides, you know, being forced into those situations where you're on a team with other experts? What are some of the other ways that newer expert witnesses can just get some questions answered from other, more experienced experts or from other more experienced experts?
Speaker 2That's a hard question because either you're in-house at one of the established firms or you're a lone wolf. I'm kind of a lone wolf. I look for opportunities to meet people at other academic conferences or professional conferences like American Bar Association or some of the forensic accounting like the ACFE. So in my field, yeah, I forensic accounting like the ACFE. So in my field, yeah, I would say, go to the ACFE meetings. If you're a forensic accountant in litigation, you'll find other experts there to chat with. Or if you're coming to it as a lawyer which is a unique kind of expert that often doesn't get opportunities to be experts but sometimes gets a very niche opportunity to be an expert You'll find your tribe at the American Bar Association.
Speaker 1Do you find that, as an attorney, the expectations are in some way different for you as an expert?
Speaker 2It's a different world. One of the ways that I market myself, one of the great advantages of me that I think makes me unique from anyone else, is I am both at the same time a securities and corporate law professor and a forensic accountant, recognized expert in forensic accounting professor, and so I get two hats to wear and it's kind of like if you've ever played a fantasy role-playing game, sometimes you can be both a wizard and a warrior. It means you have maybe a little bit less of the attributes of each one, but you also can get synergies as being both. So you multi-class.
Speaker 2Yeah, multi-class. So I'm a wizard and a warrior. What that means is when I'm sitting in the deposition chair, when I'm writing a report a warrior. What that means is when I'm sitting in the deposition chair, when I'm writing a report, I understand all the working pieces of the case pretty much around my report. I understand my piece as a forensic accountant or as an economist Sometimes I wear that hat I understand my piece and what I'm doing there. But I also understand all the working parts around that report without the attorneys needing to explain it to me. And when I'm sitting in the deposition chair and an attorney has a new trick they want to try, I usually have a pretty good sense of what they're trying to get me to say that I don't believe, but they're trying to trick me into saying it gives me a better instinct about that.
Speaker 2So that's useful. And the hazard is just that. Look, the fight always is that the other side will say, oh, you're trying to give an opinion as a lawyer and that's for the court to say, and so we get to exclude it, in which case I'm pretty well prepared to say no. No, that issue is an issue of both accounting and economics and it has implications for law. It's a multi specialty issue, and so I'm speaking to that question appropriately. I'm used to that, and. But that's the advantage, and you have to be prepared for the disadvantage, that they try to disqualify everything you say on the basis of you being a lawyer. And of course, you just have to be prepared for for that fight.
Speaker 1Right, right, I want to go back to that. Dobert hearing that we were talking about before. That's definitely a stress point for newer expert witnesses. Can you describe that process a little bit, how it went and any recommendations that you have for people who are about to go through their first one?
Speaker 2Yeah, this experience was in US. Versus Sterling off, this is a matter where it was high stakes because it was a criminal matter. At this point after the trial, the government is seeking 30 years for Mr Sterling off. He alleged that he ran the largest Bitcoin mixer that mixed all the Bitcoin that came out of the Silk road drug site. This was a million dollar money laundering accusation.
Speaker 2Yeah, I was there to provide expertise in a number of areas, so the first dog the dauber hearing was two days was uh. So I was in the chair for uh, I don't know five or six hours getting grilled by an assistant us attorney who really wanted a piece of me, and it was a good experience. On the other end, it wasn't fun while it happened and you know you get these panic moments in your head. One of the things I did was I focused on my breathing. That's what I do in every stride soul situation. If you ever read about what the Navy SEALs do the box breathing, where you inhale, keep it inhaled for a couple of seconds and then exhale, keep it exhaled for a couple of seconds and then inhale, and you just practice that the whole time you're out there it's going to provide you with tremendous advantage. It's going to relax your entire body, take down the temperature that that opposing counsel is trying to bring up inside of you and focus on what you need to say and what you need to do. The box breathing, look it up. I highly recommend it for structural situations like depositions and testimony and cross-examination. So that helped me a lot.
Speaker 2With that experience, what would I do differently? I would spend a lot more time with my expert credentials to have more references. It only came up later, six months, 12 months later, as the government tried to limit what I could say. They would often say well, this wasn't properly noticed. I was relying on the lawyers to properly notice aspects of me and I probably should have been doing more to help the lawyers when they were focused on a million other things To say look, you need to notice the government about the fact that I'm going to testify about this, for example. Here's just one example During my Daubert, I did not mention that I was going to conduct forensic interviews in prison of the defendant.
Speaker 2But the assistant US US attorney asked me have you conducted forensic interviews in prison? And I said I just got on this case. I have not done that yet, and then I went ahead and did it. I would have thought that was sufficient notice to the government that I was going to do that, but the government raised, you know, raised their hands and said, oh my goodness, we had no notice that that was happening. And the lawyer lawyer said what. You asked him if he had done that and he said it was a good idea. So, uh, and we also, before trial started, we noticed you about it and said no, no, that wasn't enough time and I didn't get to talk about the forensic interviews that I had conducted in prison because, um, I should have thought that far ahead and and thought that that I needed to include in my initial disclosure. I wish, wish I had now.
Vetting Cases and Building Relationships
Speaker 1Is that a? Is that a failing of preparation? Is that something that your attorney should have had handled before you went into it? Uh, force all that. Or is that the sort of thing that experts need to be aware of going into the proceeding?
Speaker 2Well, I'm not going to fail the attorneys because they were drinking from a fire hose. They were writing motions that do the next day, every day. Uh, it was a pro bono matter, uh, so nobody got paid and we were all there because we believed in the case. So, um, yeah, it's just I I should have done more to to think through what the attorneys need to do to help me and support me, and, uh, I should, I should have. Uh, what I should have done was just had a supplemental filing after the Daubert saying we're going to add to what he's going to testify about and specifically mention that item.
Speaker 1Sure and you know, speaking of proceedings where you're being impeached. You are a well-published author. You've written for several law journals, newspapers, etc. How do you keep track of all of that and avoid a situation where a judge or a panel or someone is trying to impeach you on something that you may have said 18 years ago, that may or may not actually even be applicable, or maybe you've changed your mind on something? How do you keep track of everything that you've written or said on a matter?
Speaker 2That's interesting. I've always had a thought that that would happen because I've written a lot of articles. It never really has for the academic articles. Maybe that's just the style I write, or I think I do a good job of sticking to taking positions that are consistent with general topics I've written on. I did have the experience of my Twitter feed being thrown at me in this criminal case. I happened to take the position.
Speaker 2My personal policy views very critical of the government surveillance of private financial information, of government surveillance of private financial information, and so this was also a case where the privacy was at issue. Did you have the right to have privacy in the use of Bitcoin? And was this defendant just using these privacy tools for his own personal privacy? That was part of what was the issue right? So the AUSA and this is what you do when they think they have a surprise gotcha moment you just embrace it. You say, yep, absolutely right, you're absolutely right. So the ausa says, um, did you tweet that financial surveillance is evil? And I said, oh, counselor, that absolutely sounds like me. Yes, and it can be evil when the government abuses abuses of financial surveillance, like russia, like venezuela, like china has done and like the us has done in some instances.
Speaker 2And he, he was, I think he was. He thought I would kind of shrink back in the chair, but I just grabbed it and jumped on it and use it as an opportunity to start talking about why I believe that which helped the case. So he opened a door that he didn't realize, that he didn't want to open your Honor objection. He should just answer yes or no. By then I'd already said my piece. Right, just answer yes or no. By then I'd already said my piece, right. Uh, so the jury heard why I believe what I believe. So yeah, I tweet a lot. I try to think a little more about every tweet could be mentioned in court, um, but you know, you just gotta own it and you just gotta say, hey, you look at the, look at the jury and say you know, I fired off a stupid tweet. You guys ever done that right? Something like that, you know become become relatable.
Speaker 1Yeah With, with, uh, with social media. I guess that there's. There's two ways that you could go about it. You can avoid using social media you know at all and not have really much of a public record of your personal views on anything, uh, or, as you say, you can kind of own it so, uh, you know. That's. That's a really interesting dichotomy. Besides Twitter, do you use other social media that that anybody can go look up and and, you know, see your views on any particular topic?
Speaker 2LinkedIn. I actually find LinkedIn is a great development tool for for expert work, and I love LinkedIn. Look, at some point somebody is going to pull up and some marketing that I do for myself and try to cheapen me, in which case I can say you know everybody in business markets what they do. That doesn't mean I'm going to come here and make up something just to get some money from a single engagement. Because counsel I think you know that the moment I get dinged in an opinion from a judge that limits my engagements going forward for the rest of my career, my reputation is essentially. I've got the speech lined up for that cross-examination.
Speaker 1You mentioned marketing and that's an interesting topic. I've run into expert witnesses who don't do any marketing and I've run into expert witnesses who do quite a bit of different types of marketing. What have you found to be effective for your practice?
Speaker 2Docket monitoring and finding something that really is the perfect case for you.
Speaker 2For me, it's a very limited set of things that I really need to monitor SEC enforcement cases, obviously, docket monitoring, finding a position you can get behind based on what you can tell from the public filings, and then introduction to a conversation. And then in terms of generally getting on the phone with lawyers, one thing that always works is if you see something they've done or published and the email starts with hey, I read your article, it's great, and I'm always truthful about that. I read your article it's great, and I'm always truthful about that. I read your article it's great, or congrats on the move to a different law firm. By the way, while I have your attention, can I get you for 15 minutes to pitch on your expert work? They always read the congrats because that's how human ego is we're the same, I'm the same way. And then, once I have their attention, the first paragraph, the second paragraph gives them a couple of sentences about why it's worth their time to spend 15 minutes with me talking about Veritas Financial Analytics.
Speaker 1That's interesting. You know these kind of more guerrilla marketing tactics after fashion, speaking of that sort of thing. Has expert witnessing? You've been doing this for a while. Has expert witnessing changed in any fundamental way since you first began, be it technology, technique, maybe going to settlements more often than they used to? What are the things that you've seen happen over the years?
Speaker 2I think, with the technology available data technology, the ability to just use Dropbox and Box and Stata and Excel, and now AI, enhanced versions of everything the big firm advantage is eroding, and I think that boutique operators like me can go toe-to-toe with the big guys for a lot more than we could before, and I think that's the general trend going in that direction. That's not to say the big guys are. The big guys are going to learn how to harness that technology too, but I think the model of expert, and then under them a legion of analysts that support them that's going to die, in the same way that big law model is going to die. They'll always be superstars, but those superstars are going to be aided more and more by tech instead of by bodies, instead of by people, and that's the way it's headed. So that means that at least a boutique like me can compete with the big guys.
Speaker 1You mentioned AI. Is AI to you a playing field leveler or does it introduce kind of noise into the system? Where do you stand on AI, just kind of generally, as it pertains to expert witnessing or even to being an attorney?
Speaker 2It's a useful supplement. It's an essential supplement. So I teach an AI-based legal writing class and I think you have to go into it with a philosophy that it is not there to replace anything that you've done before. You need to do your own writing first so you don't limit your own creativity, and then this tool can enhance what you do. It's a tool, not a replacement. So if you're using it to enhance the efficiency or the reach of what you're already doing, that's the right way to approach it.
Speaker 2If you're trying to be lazy and use it to replace your own original thinking, original work, you will fail Because, at least for now, it's very obvious. When you do something with a lazy use of an AI tool, it's very obvious. When you do something with a lazy use of an AI tool, it's very obvious, whereas otherwise, if you give it 10,000 words of your own writing and say, streamline this into 8,000 words, that's great. But that's really you, that's your thinking, that's just assisted a little bit by AI. So use it in research. Use it to organize your own notes, use it to edit your writing, um, uh. So use it in research. Use it to organize your own notes, use it to edit your writing uh but uh. Otherwise do the bulk of it yourself and feed it, uh, feed it a lot. Feed it more words than it's spitting out. So if you want something, 5,000 words, you need to give it 10,000 of your own words. That's when it's best. That's how I use it.
Navigating Trial Teams and Daubert Hearings
Speaker 1I, uh, I wrote a recent article comparing different AI software as it pertains to being an expert witness, for instance, helping you with a report to fairly mixed results, and one of the things, one of the conclusions that I came to is that, even when you do as you say and it works properly, it is important to double check it and reread everything at the end.
Speaker 2Don't oh, yeah, yeah, don't trust the output until you've read it yeah, every word needs to be yours, and, and, and you know, I I think that, um, in preparing for cross-examination, you just uh, I'm getting ahead to one of the questions I think you want to ask me, but let's talk about cross-examination sure it's just um, I don't war game with other people because all of that's discoverable.
Speaker 2So I don't want to do that. Sure, but the thing I do is just meditate, like meditate on every single sentence of your expert report and just be aware, don't just read it, just set this sentence. Let me give some meditation on this sentence alone. Why did I say this sentence? If I'm asked to defend this sentence, what would would I say?
Speaker 2and do that to the next sentence and then do that to the next sentence, because what you've written is like the bible, but you have to be able to quote your own scripture and every, every single phrase needs to stand on its own are you ever given kind of a skeletal outline for a report from an attorney, or do you usually write everything whole cloth?
Speaker 2I write everything. I would never take an attorney. It's like they gave me language and say use this Attorney. Feedback in formatting is great because I start with creativity and coverage of the necessary issues and that's the first draft and if an attorney wants to take a look at it, I say look, my formatting is garbage. My sites are garbage right now. If you want to help with that, that's great. If you want to associate who can help with that editing and formatting, that's fine. But just, I've done the original thinking. Make sure the thinking is right right now, and then I might get an RA to help me a little bit with the formatting and and R and AI tool to help me with the formatting. But no, if an attorney came to me and said use this language in your report, I would say no, because when somebody asked me on the stand, did you, were you told to use this language and I have to say yes, I'm gonna look like an idiot. So there's no way that's happening. That is not happening.
Speaker 1You mentioned formatting a couple of times. How important is the presentation of the information you know for an expert report?
Speaker 2Well, that's the final thing. And yeah, presentation is important. It's sort of like you know, you cook the meat and you make sure the meat's cooked well and you make sure the sides are cooked well and then the last step is to put the little squiggly lines on the plate, like the chefs do you do? I'm not saying, skip that step, I'm just saying that's the last step in the process.
Speaker 1Sure, to me it seems like it's akin to demeanor in court. The content of what you say is important, but then the way that you present yourself. And I wanted to ask you with technology increasing and people using a lot of things like Zoom and remote technology to even go into court I've seen the entire trials now can take place on Zoom Is there a difference in the way that you prepare or present yourself? Or, you know, is Demeter on camera different than it is in the courtroom?
Speaker 2It sure feels different. So I recently did a deposition against the SEC and I did part of the deposition in person. And you know how that goes. You get into a room and maybe your own counsel is there, maybe not, maybe they're there by Zoom. This one, the counsel who hired me, was there by Zoom. Sec and CFTC lawyers was a joint case. We're all sitting there around the room and they're all looking at me like I just got called to the principal's office, you know, and it's a small room, it's claustrophobic and would you like some water professor, but they try to make it so that you have to ask me to go to the bathroom, professor, and you try to play the game of. You know what I'm going to say when we go to the bathroom, I'm just going to go. Thanks, counsel, I'm in charge. You know there's a little games Right Versus.
Speaker 2The other half of the deposition was at home. So I'm in my basement, I'm with my dogs, I'm safe. It just feels different and I don't get nervous anymore. Depositions I've done half dozen of them, especially after that big criminal cross-examination that is, it's becoming a little hat, but it still was just so much more relaxation. If you're opposing counsel, you definitely want to depose that witness in person, if you can. Uh, it's, it was a much better feeling to be at home with my dog sitting with me and just feeling kind of relaxed. You know, just have fun with it at that point is it.
Speaker 1Have you ever been in a situation where you've been remote in a jury trial? No, not yet. Speaking of juries, how do you go about connecting with them during your testimony?
Speaker 2Eye contact. Okay, eye contact.
Speaker 1Do you use? Do you ever use, do you ever use demonstratives? You know, exhibits, charts, models, anything like that.
Speaker 2Yes, and most of the prep time with the lawyers was just let's see how much we can cut. So I started with the fat PowerPoints and the lawyers were like, oh my God. And I was like, look, I just want to make sure I didn't lose anything important, Like all right, fine. So they just took a slice, slice, slice, slice, cutting out everything you can from that thing. So there's like 10 words on each PowerPoint and we got maybe 15 PowerPoints at most and that's it. That's all you get, and a couple of graphs or charts if they're really self-explanatory and punchy, and that's it. Keep it simple. Keep it simple.
Speaker 1Keep it simple and lean, and if you want to talk, you can talk but you don't want them to spend a lot of time looking at it while you're talking, do you find that pictures are worth a thousand words Are?
Speaker 2demonstratives more effective than just talking to the jury Only if you only have a couple of them, you don't want to overburden them with, uh, with too long of a slideshow, Absolutely.
Speaker 1I wanted to ask you if you've had any maybe a case or two, um, that have either reinforced or changed the way that you go about expert witnessing kind of touchstone cases in your career as an expert witness.
Speaker 2Well, I've learned from other experts. One practice that I think is very useful is having your expert there while the opposing expert is being deposed, and so I've done that a few times and it's very helpful because I can give you a lot of. You think you're the expert cross-examiner, but I can give you stuff that you don't know to ask about in real time. So I think that's helpful to do, and I had an opportunity to learn from some good experts in matters like that. Of course, I can't mention them because of the confidentiality, but I've had an opportunity to watch some really good experts and see, see how effectively they can stake, uh, effective discipline.
Speaker 2I I think I'm disciplined, but I've seen people who are even more disciplined and who you know, in response to a reasonable hypothetical, will say I don't engage in hypotheticals and we'll say that like 200 times in a row, which is hard to do when you're sitting in a chair.
Speaker 2But I've seen that discipline that you're there to speak to the report and not engage in hypotheticals that don't involve the facts of the report. Yeah, so that opportunity has been good, and the other general advice I think is it is self-serving, but it is also true that it's very useful for lawyers to have your experts in early, have them in as kind of a consulting expert early. You have to be careful about using me as a consulting expert when I later become a testifying expert. But I can give you advice about discovery that's useful. It's not to say I'm going to use a bunch of hours on it, but I can give you some advice about what to ask for in discovery that you will have wished later that you asked for when we get to subsequent motion to dismiss and we get to expert testimony and stuff like that.
Speaker 1Absolutely. One thing I want to ask before we wrapped up. You had mentioned regarding billing running out of retainer, and that's interesting to me. I like hearing about the different methodologies that experts use in terms of billing, so I take it that you use some sort of a retainer mechanism. How do you set up your billing?
Speaker 2Well, if I know you and I've worked with you before and your client is reputable and is a big public company or you're with big law and I know you and worked with you before, I'm willing to be flexible. But if I don't know you, then I need an evergreen retainer, which means upfront retainer, a bill from the retainer, and when the retainer gets to zero the invoices, the retainer gets filled up again and if there's an outstanding invoice that's beyond the last retainer, that needs to be paid before anything happens. So I'm not going to sit in the chair, I'm not going to give you a report until you pay outstanding invoices and until you replenish the evergreen retainer that protects you, that protects me, that limits compromising my independence through billing issues. And if you're not able to do that, then we have to part ways.
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Speaker 1What do you find meaningful about being an expert witness?
Speaker 2It gives me a chance to do something real. And one of the frustrations with being an academic is sometimes it doesn't feel like what you're doing is real. It's just kind of mind games, on, on on with jargon on a journal article Not always really like that, but sometimes it feels like that. It gives me a chance to make my academic research meaningful, significant, impactful and more informed or well-informed than someone who only has the experience of reading other law review articles. I do that and I actually sit in the chair in real disputes. So I understand how theory meets practice and for me it's the ability to honing.
Speaker 2The ability to move in and out of both worlds has taken a lot of time. It's been very hard. It's a challenge to do both at the same time, but I'm better off for being that challenge. I'm a better practitioner, better expert, better teacher and scholar for wearing all those different hats and trying to survive with all those different hats being that challenge. I'm a better practitioner, better expert, better teacher and scholar for wearing all those different hats and trying to survive with all those different hats. And now that I'm coming into mid-career, mid-life, I feel a strength in each of the things I do because of my abilities in the other stuff.
Speaker 1Excellent, professor Vera, thank you so much for joining me here today on Engaging Experts.
Speaker 2Thanks for having me and thanks for working with me. I love you guys, love the roundtable, and you provided essential expertise to lawyers who are panicked looking for an expert. You guys can steer them to me and they'll be all set.
Speaker 1Absolutely, and thank you to our listeners, as always, for joining me for another episode of Engaging Experts. Cheers.