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 Lawyer and Tax Expert, Nancy Ortmeyer Kuhn
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In this episode…
Our guest, Nancy Ortmeyer Kuhn, is a Schulman Rogers shareholder, and she specializes in tax controversies and tax planning. She is a practicing attorney and expert witness for a range of topics including non-profit governance, charitable conservation easements, and general tax issues. Ms. Kuhn is a published author and holds an LLM from the University of Denver.
“Communication is key,” according to Ms. Kuhn. Whether good or bad, having an open dialogue between an expert and an attorney is the foundation of a successful engagement. That said, she also notes that attorneys are extremely busy and may not always have time for extended conversations.
Check out the entire episode for our discussion on settlements, finding meaning in expert witnessing, and representing nonprofits.
Introduction to Nancy Ortmeyer Kuhn
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 our guest, nancy Ortmeyer-Kuhn, to the show Now. Ms Kuhn is a shareholder at Shulman Rogers, where she specializes in tax controversies and tax planning. She's a sought-after expert witness for a range of topics, including non-profit governance, charitable conservation, easements and general tax issues. Ms Kuhn is a published author and holds an LLM from the University of Denver. Ms Kuhn is a published author and holds an LLM from the University of Denver. Ms Kuhn, thank you so much for joining me here today at the Roundtable.
Speaker 3Well, thank you, Noah, for having me. I'm pleased to join you.
Speaker 2Of course, let's jump into it. So you have been a legal and tax professional for quite a long time, but how did you first get involved in expert witnessing?
Speaker 3Well, I started at the US Tax Court as a law clerk and then went to the Internal Revenue Service for 10 years and then jumped to private practice.
Speaker 3So I have experience on both sides, both government and on the taxpayer side. I can view a tax issue either from the government's perspective or the taxpayers perspective, or both depending on the situation, and I think for that reason my background is attractive to two individuals that are looking for experts in tax. I also have a lot of nonprofit experience, and so there are a lot of unfortunately there are a lot of nonprofits that are suing each other these days, and a lot of times it has to do with governance issues, and so that really isn't legal. That's more just my experience being on the boards of nonprofits representing nonprofits, and so I think that's a bit unique to marry the nonprofit governance experience with the tax experience. So I think I probably got started as an expert just because I had been writing about various topics and I was contacted because my name was out there connected with some of these topics. But it's been fun. I really enjoy being an expert.
Speaker 2So were you specifically looking to become an expert, or did it just kind of fall in your lap a little bit?
Speaker 3It just kind of fell in my lap a little bit and I tried it and I really enjoyed it. So then I started pursuing it more seriously.
Value of Expert Witness Work
Speaker 2That brings me to one of my first questions. It's kind of a general question, but it's something that I like to ask our expert witnesses, in particular those who have been doing this for a while. What do you find meaningful about being an expert? Why is expert witness work important?
Speaker 3Well, this may be a little bit self-serving, but when I was first starting out as a young female tax attorney, I wasn't always taken very seriously. I would be in meetings, others would, I would say something. I would just be sort of disregarded and then others would say the same thing and it was like it was the best thing the client or whoever we were talking with had heard. And that's a little bit that got to me after a while. So all these years later, it's very gratifying to be regarded as an expert in my field of tax and nonprofits and for attorneys and judges to respect my opinions. But also I really love the give and take of litigation. I also litigate tax cases and represent taxpayers or nonprofits, including nonprofits, and I enjoy the variety of being involved in litigation as an expert. It's just it's a different perspective and it's a different skill set. I really enjoy the variety.
Speaker 2Do you have a preference between the two?
Speaker 3Kind of depends on the case actually. There are some cases when I'm the expert where I really love to get in there and be representing the taxpayer, but other cases I'm glad to be the expert in that, not being involved in the nitty gritty of the case.
Attorney-Expert Relationship Success Factors
Speaker 2Sure sure, Absolutely, and you know, as somebody who has worked on both sides, what are the main factors that make a great or a positive attorney-expert relationship.
Speaker 3I think communication is important, so there aren't any surprises.
Speaker 1Sure.
Speaker 3And whether you're representing, when I was representing the government, when I represent taxpayers, nonprofits just so that everyone is open about deadlines, is open about the goals, is open about the strength of the case as well.
Speaker 3I just think communication is key to really every relationship, but especially the expert witness relationship, because I don't want to testify as an expert in a case that is just a loser and I'm just wasting the client's money Because litigation is expensive and if they don't have a case, I find it very necessary for me to communicate that to the client's money, because litigation is expensive and if they don't have a case, I find it very necessary for me to communicate that to the client. On the other hand, if it's a strong case and they want to settle for something that really not fair to the client, then that also needs to be communicated. And on the other side of that, I really expect my clients to let me know what's going on in the case on a regular basis deadlines so I get my calendar blocked off and all of those sorts of just administrative details. It doesn't always happen to be honest, but it's just important to have open communication.
Speaker 2To facilitate that sort of open communication, do experts need to take a particularly proactive approach in making sure that they get their questions answered and that they're in the right place when it comes to an engagement?
Speaker 3Proactive but not a pest. Proactive but not a pest, because litigators, litigators are extremely stressed and they have all these motions to file and pleadings to file and discovery and all of that. So, as an expert, I try to give the litigator space and I, you know, I obviously need to know what's going on, but I try not to be a pest. I just let them do their job and usually it's not a problem.
Settlement Impact on Expert Role
Speaker 2You had mentioned settlements. With so many cases going to settlement, how does that affect the role of the expert? In other words, do experts need to prepare as though their case is going to trial every time, or does it somehow affect the calculus of the expectations of the attorney or the preparation or any other factors that relate to settlements?
Speaker 3Well, since cases are going to settlement so much, partly because litigation is just so time consuming, it takes forever and it's very expensive it's important, I think, for the expert to get involved as early as possible so that the expert can shape the guidance and shape the arguments for the attorneys regarding, as I said, the value of the case and the best possible terms for settlement. It doesn't always happen, but I, at the same time, the expert. You're right, the expert has to be ready in case the case does go to trial, and the expert may be. I've been deposed several, many times and the case then settles shortly thereafter. But being ready for a deposition is really just the same as being ready for trial. So, right, you have to be ready for a deposition or a trial, but at the same time you have to be realistic about the value of the case and whether it is likely to go to trial. So really it's more advisory in nature at the beginning rather than purely a litigation role.
Speaker 2Absolutely, with that sort of change, similar to a lot of cases. Moving on to settlement, have there been any other changes either in your field specifically or in expert witnessing generally that has changed the way that you approach expert witnessing?
Speaker 3Not really the way I approach it, Unfortunately. I learned the hard way that I need to get a fairly sizable retainer fee up front.
Speaker 3Being an expert witness is time intensive and there are typically reams of documents that I need to review including endless deposition transcripts of the fact, witnesses, and it just takes a lot of time and I've trusted clients in the past to pay me after the work is done, and that doesn't always happen and then it's a problem.
Lessons Learned in Expert Witnessing
Speaker 3So litigation is expensive and that's why a lot of these cases settle. But but so I I have learned the hard way. But I've also seen a lot more litigation between and among nonprofits, which I didn't used to see. I just don't think that used to happen quite as frequently, and so as someone I'm involved in a lot of nonprofits, both professionally and personally as a volunteer, so I really celebrate the work that they engage in. So I do try to work with my nonprofit clients as an expert, but also in a manner that could lower the temperature and get to a favorable resolution, possibly without going to trial. It always makes me a little sad to see nonprofits fighting with each other internally or all of these things, but it happens and it seems we have become a more litigious society, I'm afraid.
Speaker 2Sure, and you know, and when you have different businesses trying to do good work like nonprofit is unfortunate for them to be fighting each other. It's completely understandable. Does that sometimes? Is there a push for some of that to move to nontraditional litigation, like alternative dispute resolution, like arbitration and things like that?
Speaker 3I actually haven't seen that, no, which is surprising. You'd think they would want to go to mediation. Some courts, some courts do require that as part of the litigation process, but most of the cases I see are in trial and they've been filed in local courts, state courts, federal court, whatever it might be.
Speaker 2Sure, absolutely. You had talked about a lesson that you had learned vis-a-vis making sure that you charge a retainer and making sure that you get paid. Our podcast is primarily about those sorts of lessons. Before we wrap up, a story or two about, you know, any expert witness engagements that turned out to be learning lessons for you, or any other insights that you've picked up along the way.
Speaker 3Sure. Well, I guess one lesson I picked up right away is that judges don't necessarily think that they need another lawyer in the case. You know the legal arguments are to be made by the plaintiff's counsel and the defendant's counsel. So I learned that my first task is to demonstrate to the judge and the parties that my perspective is a bit different. Tax laws are complicated and so a general litigator is not going to understand the intricacies of the law, so that I provide that expertise. I provide that expertise, but also, as I mentioned, my expert work on behalf of nonprofits is similarly nuanced. Lawyers tend to not really understand the governance, nonprofit governance issues and the interpersonal relationships that are so important in charitable operations. And with my extensive background with nonprofits as a lawyer and as a volunteer, I think I I offer that perspective. But you know I have to convince the judge that, or actually my client to argue to the judge that I'm not just appearing as a lawyer but as an expert witness.
Speaker 3And one example of this is that I was hired relatively late in a case that was before a local court and when I was reviewing the complaint there was a statement by my client in the complaint. That was just wrong. It was just legally categorically incorrect. So that's an experience that encourages me to you know, it's not good to jump in a case at the last minute. You have to really try to get involved early on and in that case, luckily, the case did settle and so it didn't become an issue.
Closing Thoughts and Advice
Speaker 3But when I saw that I thought, oh no, if I'm on the stand and I have to defend that statement or I have to talk to the client and get them to amend the pleading or whatever it might be, that's going to be not a pleasant situation. So you have to be flexible in those situations and make the best of what might be an awkward situation and really harmful to the client. Also, I've learned that with thick skin because even though I'm an expert and taken seriously hopefully by the judge, but definitely by my client opposing counsel is going to try to tear me apart limb by limb because they don't want whatever I'm saying which probably is going to go against their client to be the final word. So you know you have to have a thick skin for the cross examination part of this. But generally lawyers are very respectful. So it's really not that much of an issue. But you know you have to be prepared for anything.
Speaker 2Absolutely Sage advice, Miss Kuhn. Thank you so much for joining me here today at the round table.
Speaker 3Oh, it's my pleasure, thank you.
Speaker 2And thank you to our listeners for joining me for another discussion at the round table. Cheers.
Speaker 1Thank you for listening to our podcast discussions at round table. Our show notes are available on our website, roundtablegroupcom. Subscribe today on Apple Podcasts or your favorite listening apps.