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 Finance Expert, Dr. Don Keysser
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In this episode…
Today’s guest is Dr. Don Keysser, Managing Principal and Business Finance Consultant at Hanover Limited, where he specializes in business development, capital planning, financial analysis and more. Additionally, he teaches Business and Finance at the University of Minnesota, and St. Mary’s. Dr. Keysser has over 20 years in expert witnessing and holds an MBA and DBA.
Preparation is key, and Dr. Keysser has worked with both attorneys who do a great job, and those that fall short. He recommends a proactive approach; ask for mock depositions when possible, noting that ill-prepared experts can have a profound impact on the end client.
Check out the entire episode for our discussion on working internationally, working for both plaintiff and defendant and marketing.
Introduction to Dr. Don Keysser
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 Balmer, and today I'm excited to welcome Dr Don Kaiser to the show. Dr Kaiser is Managing Principal and Business Finance Consultant at Hanover Limited, where he specializes in business development, capital planning, financial analysis and, more Additionally, he teaches business and finance at the University of Minnesota and at St Mary's. Dr Kaiser has over 20 years in expert witnessing and holds an MBA and DBA. Dr Kaiser, thank you so much for joining me here today on Engaging Experts.
Speaker 2Thank you, noah, it's a pleasure to be here.
Speaker 1Absolutely, let's jump into it. So you have over 35 years in finance, but how did you first get involved in expert witnessing?
Speaker 2It was kind of by accident. My first case was a case that I'd been hired on as an investment banker and I ended up resigning from the transaction because the client was doing a lot of really dumb things and wouldn't listen to my advice. So I said, okay, gentlemen, I need to leave this engagement, good luck. They hired a different investment banker, who I will not name here, and that investment banker did the transaction and within less than a year it collapsed.
Speaker 2And so in the litigation that followed up, the attorneys during discovery found all these memos I'd written to the client and because this is back before email, so you actually wrote real paper and ink memos. And they called me up and said would I be happy to testify on what the investment bank that replaced me had done wrong? And I said, oh, I'd love to. Are you kidding? It's a chance to stick my thumb in somebody else's eye. And so I did that. I really enjoyed it a lot and I realized I was good at doing it, and so then I had a few more referrals from fellow you know, from friends who were attorneys, and a mushroom from there. So I've now done 50, I think it's now 53 cases to date all across the country and one international. I did a case last year in Cayman Islands, in Grand.
Speaker 1Cayman. Oh, how was that? How was it different working internationally?
Speaker 2Well, it's a British legal system, not an American one. So I asked my attorneys, all of whom were British, said what are the protocols here? They didn't want to feel like a total idiot and they said first of all, never call the judge your honor, it's always my lord or your lordship. So the first time I actually spoke in the courtroom to the judge, it was a bench trial and I turned around, I spoke to the judge and I started to say your honor. Then I caught myself halfway through and I said no, excuse me, my lord. He started laughing because he knew I'm an American and he just thought it was funny.
Speaker 2So but that trial went on for about five days. We won that case and the $20 million award to us, to our side, and that was very gratifying. But it was a different system, quite a bit different system. But otherwise I've been all over the country on these cases. I found that most cases settle out of court. Of course, these are civil cases, not criminal, obviously, and most of them settle out of court. Although I've now had seven jury trials, I've got two more coming up early next year and then one bench trial trial, having worked across the states and, in fact, internationally.
Navigating Different Legal Venues
Speaker 1What are some of the differences across different venues? And, more importantly, or equally importantly, how do you prepare differently? You know, when you're working in a new venue, do you have to become familiar with some of the laws or do you have to become, you know, are some of the systems different. You know what's the preparation like going into a completely new venue that you've never worked in before.
Speaker 2Well, you know, I'm not an attorney myself, I'm an investment banker, so I'm always very careful to not give an illegal opinion. I'm very careful not to do that. I have local attorneys, of course, who've hired me, and they are the ones who will give the legal opinions and argue the legal side of the case. I'm there to argue about the investment banking side of the case standards of care and practice, investment banking practices, financial analysis so the legal issues aren't too much.
Speaker 2What I've learned to be very careful about is that different jurisdictions, though, have different rules about discovery of expert communication. So if you are my attorney and I'm I've been hired by you to present a case, the very first question I want to ask you at our first conference call is what are the rules on discovery and if I can communicate with you without fear of discovery? Then I can send you draft reports, I can send you emails discussing my views. In some jurisdictions those communications are discoverable, and then I have to be very careful about what I write down, and I will never send you a draft. I'll discuss the draft with you on a screen like this, like a shared screen in a Zoom call.
Speaker 1But I'll never give you anything on paper.
Speaker 2So that's the first question I ask, and that does vary from jurisdiction to jurisdiction. That's really the only concern I have about local law. Otherwise I don't really cite the law or give an opinion on the law.
Speaker 1Do depositions go any differently in different venues?
Speaker 2Not really. They're pretty much the same. I've been getting used not to see more video depositions. They never used to be video and they're now more and more more commonly video. And the last couple years, because of covet, I've done uh zoom depositions. And my last deposition the attorney I worked for was in salt lake city, the opposing council was in baltimore and I'm sorry it was in philadelphia, the court reporter was in baltimore and, of course, here in minneapolis. So it was interesting experience, but it works just fine and we got in the habit, of course, here in Minneapolis. So it was an interesting experience, but it works just fine and we got in the habit of that during COVID. I think we'll probably stick with that now because it saves a lot of costs. Instead of having to fly people back and forth around the country, just sit down at your desk and open your camera.
Speaker 1Now, as somebody who's been doing this for a long time, how does that change? Or does it change the way that you interact? Do you have to change your demeanor? Do you have to make sure that you're, you know, glancing up at the camera to make sure that you're making eye contact? You know what are some of the considerations when you're doing video or Zoom depositions.
Speaker 2Yeah, that's a good point. I try to like I'm trying it right now I've got to position my camera so that I'm looking at you and the camera I'm not looking off somewhere like this that I'm looking at you and the camera. I'm not looking off somewhere like this, you know Sure. So I have to be a little careful about that, and I wear a nice shirt and I usually wear a tie.
Speaker 1Actually it sounds kind of silly, but I wear a tie.
Speaker 2But I'm at my desk, like I am right now in my very crowded study, and so it's usually not a problem. It's usually fairly informal and it works fine.
Speaker 1Let's talk a little bit more about the other questions that you ask. You're talking a little bit about what you like to ask prospective counsel. You like to make sure that you know the discovery rules, for instance. What are the other important questions when you are being vetted and when you yourself are vetting the action to decide whether or not you're the right expert?
Speaker 2I see that part of my role in the early stages of a case particularly if I'm brought into the case early is to help review the theory of the case with the attorney. I mean, I'm an expert on finance and banking. Most attorneys are not. I mean, they're very knowledgeable and if they've been doing this for a while they have a pretty good sense of how investment banking works and investment management and brokerage practices. But I am the expert. So the one thing I try to do early on is to help the counsel articulate the theory of the case. What's this case really all about? What are the underlying issues here? Not necessarily just legal, like citing case law, which I don't do but what are the underlying theories in terms of the practice of banking? And so that's where I think I play a role. One thing I make sure that the attorney understands and not all of them do is that I'm not here to be an advocate for your client. That's your job. The attorney is the advocate and will argue the client's case vociferously and enthusiastically. Technically I am not I mean that is an inherent tension the role of an expert witness. In theory, I work for the court under Section 702 of the rules. I am an objective assess side and I don't want to argue against them, but I'm not there to advocate for them and so that's. I want to make sure the attorney understands that I can't really fib not that I would an attorney would ever fib, god forbid. But I cannot varnish the truth. I have to really tell the court what I think is real, really tell the the the court, uh, what I think is real.
Speaker 2The dilemma is that I've been involved in cases and usually when I get hired in a case, I know almost nothing about it. I'm giving a name check to make sure I have no conflicts, uh, but beyond that I know almost nothing about the case. Then I get hired, then I start reading volumes and volumes of text and complaints, counter complaints, motions, email strings what have you? And then I begin to get a sense of the case and I've had cases where, once I get dive into the details of the case, I realized that my client has a terrible case. They're just not, it's just not a good case and I'm happy to help as much as I possibly can. But that's usually when I pull the attorney aside and said look, your case sucks. You need to settle this. I'm trying to be real blunt and do them a favor, because if they want to go to trial, it kind of makes me nervous.
Speaker 2So I've had cases, I've had situations where I tell my attorney, my client, that I want to do a mock deposition with them and I'm going to list out the five terrible questions that opposing counsel could ask me. That would be damaging to their side, to our side, but I have to answer them truthfully. I can't brandish them. So I do this mock deposition where I ask myself the question and then I give the answer and by the time I'm finished my attorney is kind of pale in the face and says oh, I've got a bad problem here. But that's my, that's my duty to them to help them and figure out a, a way to make the case as palatable as possible without trying to be an advocate for them. And that's a delicate balance. I think a lot of experts blur that distinction and are out there in the courtroom being enthusiastic advocates and champions and that's not really appropriate. And if the judge is smart, they'll slap you down and I say no, sir, you can't do that, you can't say that.
Speaker 1Right Both, both under the rubric of 702 and then other similar. You know, obviously each venue has its own version thereof, but but you, your duty, the expert's duty, is to the unvarnished, unbleached truth, not to is to neutrality, not to the end client, as you say. Now you had mentioned. You know attorneys don't always know that. So have you ever been? Not to put you in the hot seat, you don't need to name any names. But have you been in the position where an attorney, or the trial team maybe, has nudged you a little bit more than you're comfortable with just to either frame your opinion in a certain way or to outright change what your opinion is? Has anything like that happened to you? Because that can be instructive to other expert witnesses.
Speaker 2I would say in many cases it has, if the evidentiary rules allow it. I will always give a draft by report to my attorney because it's their work product and they're paying me for it and I want to make sure it fits within their narrative and does not go against the grain of their narrative. So I always give a draft of my report to the attorney or the trial team. However, in a couple of cases they pushed back pretty vigorously and said no, you shouldn't say this, you should say that. And I usually say well, I'm sorry, but I have to give you my opinion as I see it and I will phrase it as well as I can without damaging your case. But I'm not going to shift my opinion and say something differently because it doesn't marry up with the approach you're taking. And there have been a couple of cases we've had some tension on that issue. But again, I remind them that I'm there to be a neutral observer of facts, not an advocate. And we usually get, we usually work our way past it.
Maintaining Consistency in Testimony
Speaker 2These are professionals. I mean, these are not amateurs fresh out of law school. These are pretty seasoned litigation attorneys and they understand that. So they'll push me a little bit. I'll push back a little bit. At the end of the day we have a good report that they can live with and then, as I remind them, my deposition will be pegged upon my report. So when I give my deposition, the opposing counsel will have my report right in front of them and they'll say now, dr Kaiser, on page seven you say X, y, z, and that's fine and I will support what I said on page seven.
Speaker 1So let's talk a little bit about deposition. So obviously you have your expert witness report in front of you and they're going to quiz you about page seven. But what if they quiz you about something that you said on the 3rd of February 1982, in an article that you once wrote, or that you said in some case, you know, 20 years ago? How do you keep track of the things that you've said and the opinions that you've taken to make sure that you don't contradict yourself? Or is it even important that you don't contradict yourself going into depositions and into trials? You?
Speaker 2know it's very important. I don't want to have a situation where I say X and the opposing counsel says well, you know, 10 years ago you said Y. And so I'd say, first of all, I keep all my reports and before I write a new report I'll go back and look at some of the old ones if they cover the same issue. For example, I've testified quite often on issues of disclosure and due diligence. That's a very common theme in defaulted financing and I make sure that I'm relatively consistent in what I said, even 10 years ago. And so and I think I mean my views really have not changed all that much.
Speaker 2I have managed to stay fairly consistent and when there is a change in my opinion, I always cite the context, because nothing is black and white. I mean, it's always got a nuance to it. And the opposing counsel will say well, you know, 10 years ago, on Smith versus Jones, you said X. And I'll say well, you're correct, sir, but Smith and Jones was a different kind of case than this case, and here why they are different. And so I change my, I reflect my opinion in the nuance of this case and that usually is satisfactory.
Speaker 1Is that something that the attorney will prepare you on? Do they do a pretty good job of vetting things that you've said in the past and coaching you on how to respond to those sorts of questions?
Speaker 2Well, unfortunately not. And this is one of the questions I would have of my attorney class.
Speaker 2I just finished a jury trial about three weeks ago four weeks ago and a very nice attorney, very knowledgeable, but did not prep me and I prepped myself and I spent quite a bit of time before the trial, including the night before when I was in the hotel room reading back my opinion, reading my report and reading some earlier reports that had been on the same topic, the same subject matter. Some clients will prep you very, very thoroughly. They'll do a mock deposition. They'll even videotape it just to prepare me for that. Other attorneys unfortunately do not.
Speaker 2And I urge my attorneys please prep me, please rehearse with me, because I want to be polished, I want to serve your cause. I've seen when I've been in trials where an ill-prepared expert witness on the other side can hurt that case badly and a well-prepared expert witness can bolster the case badly. In the long run the attorney wins the case. I don't, I never claim that I win a case, but I can certainly bolster the client, the attorney's arguments, with my professional opinions. But I urge my attorneys to prepare me well. It's worth me to go through a mock deposition.
Speaker 1Should newer expert witnesses who haven't been in a lot of these yet haven't been prepped a lot, should they adopt a proactive approach in making sure that their attorney is adequately preparing them and, similarly, what preparation should all attorneys be doing?
Speaker 2Well, one of the things I urge other experts to do. I have given classes and CLE seminars to attorneys. I've also given, in fact, roundtable Group used to have you were part of Thomson-.
Speaker 1Reuters.
Speaker 2Thomson Reuters once you broke away, right Right, but Thomson Reuters used to have an advisory body of experts which I was a member of, and we would meet once in a while and discuss it. And one of the things that I made when I made my presentations is, when you first get engaged by an attorney, immediately sit down with the attorney and go through a long list of questions. In particular, understand the timetable very clearly. When do you want what? Understand exactly what they want me to say in opinions. You want an opinion on this? They'll say no, no, don't talk about that. Talk about this over here.
Speaker 2That's fine, I understand that, but I want to make sure that I am meeting their needs within the spirit of my own knowledge and my own base. I will not give legal opinions and I will give opinions on areas of my expertise and not other expertise and not other expertise. But I sit down and have that conversation with the attorney right off the bat, first conversation we have. I want to make sure we're all on the same page in terms of expectations. I tell them I want to give them a draft to review. They almost always say great, we'd love that. And I tell them that I want a very detailed prep. If we're going to have deposition In most cases I have a deposition and if it goes to jury trial, even more important to have a very detailed prep session where we play a mock cross-examination. That makes a big difference.
Speaker 1Let's talk about trial teams. Some trial teams consist of a variety of attorneys and paralegals and different people who are helping out with the case in different ways, maybe even separate experts in different areas. To what extent do you find yourself engaging with and even collaborating with experts the rest of the trial team, or is it pretty much cordoned off into your own area where you just do your own thing?
Speaker 2Unfortunately, in most cases it's pretty much cordoned off.
Speaker 2If there are other experts involved, I'm usually not even encouraged to communicate with them. Now, typically they are in a different area of this case, so, for example, they may be a tax expert I'm not a tax expert or they might be an engineering expert, which I'm clearly not, or they might be I don't know what, but I'm usually not encouraged to communicate with them. And I'm not sure if the attorneys are fearful of a cross pollination of ideas or I'm not sure why they say that. But I almost never coordinate with other experts. I do try to coordinate with the key members of the team, and it's usually one person who drives that team and I try to make sure I really coordinate with him or her closely. And there might be a couple of subordinates who are also involved in the case who might actually prep me. So I try to reach out to the whole team as much as I can, but I don't usually talk with other experts, which sometimes is frustrating because I want to, but that's not usually the case.
The Importance of Expert Preparation
Speaker 1Let's talk about expert witnessing more generally and expertise. How do you maintain your expertise, because some expert fields, like finance for instance, can be quite dynamic in ways. Rules change, best practices change. How do you keep up with the latest developments in your field?
Speaker 2I think that's a very important question. A couple of things. One is I am an active professor. I'm a professor at the University of Minnesota, at their School of Business, and I'm also a professor in St Mary's in their doctorate program. So I have the advantage of teaching these subject matters and, as I tell my students, when you're a teacher, you're also a student, you're also always learning, because, as you point out, my field is very dynamic and constantly evolving and maturing and as a teacher I had the chance to keep up with the literature and keep reading.
Speaker 2The other thing is when I get hired on a specific project, I will do a lot of my own research into that matter.
Speaker 2So, for example I mentioned I had a case in Cayman Islands or Grand Cayman about a year ago and it had a lot to do with brokerage agreements and short selling and that was part of the case or other elements, and I know it feels pretty well.
Speaker 2But I went back into Google, scholar and other areas and finance journals and brushed up on my knowledge. I read a fair amount. I had a case just a few months ago that involved BlackRock and the subject matter there was carried interest in clawbacks and again, I understand them conceptually but not in detail. So I went back and did a fair amount of research and when I write my expert reports I always cite the sources I'm given by the attorney you know the emails, the counter complaints and all that. But then I also cite my own academic research, the whole bibliography section, the end of my report, where I talk about you know, so-and-so said this, so-and-so said that, and I cite the sources in my report to become kind of a mini dissertation almost. And I want to cite authoritatively the academic sources as well as the trial sources.
Speaker 1Is additional research pursuant to a report a billable expense?
Speaker 2Oh, yes, yes, definitely, I expense everything. I rarely get pushback on that, but I say, look, I'm rounding out my knowledge, I'm providing more depth. Like the question of the carried interest in the CLAW Act. I had some detailed citations in there and also relating to the Investor Relations Act of 1940, which was very germane in this particular case, and I cited authoritative texts and that made my report much, much stronger. So it's absolutely billable.
Speaker 1In addition to keeping abreast of the latest developments in finance, do you also spend any time approaching or networking with other expert witnesses, either in general, at conferences or in your field?
Speaker 2Well, unfortunately there really isn't a network of expert witnesses. We don't have a trade group or an annual conference or anything. I don't really have a chance to talk to others. I talk to people that I know, colleagues of mine, who are in related areas, and I might ask them, like I have a colleague who has been a very active broker manager and I said tell me a little bit about your perspective on the brokerage agreements and how they deal with short selling, and so I will pick up information from that. But I don't usually discuss the case with them. I think that's usually not appropriate for confidentiality reasons, for other reasons, and in my report I make a point of saying that I wrote the report by myself. I had no outside researchers or secretaries or clerical. I write the whole thing myself, which is true I do. So I will do some conversation with fellow professionals on a very general level. I won't talk about the case per se.
Speaker 1Speaking of cases, do you have a case or two that you can talk about Just generally? I know that you can't always name names because of confidentiality and other reasons, but that served as kind of touchstones in your career as an expert witness that either reinforce something about being an expert witness or change the way that you see expert witnessing in general.
Speaker 2Yeah, I had a wonderful case just a couple of years ago. A European investment bank underwrote a 250 million dollar euro not bond, sorry, 250 euro high-yield junk bond transaction for a European company. The investment bank made a lot of mistakes in their disclosure materials. They tried to sell that bond in the European institutional investor market and no one would touch it because the company was pretty questionable. And so they passed that bond issue over to their American counterparts, their American branch, which sold it to an investment management company in California. That bond issue defaulted in less than 12 months, which to me is an indication, not so much a problem with the project but with the underwriting. Something was wrong when a project defaults within less than 12 months. I was on the side of the investment management company that bought the bond less than 12 months. I was on the side of the investment management company that bought the bond and I argued that there had been some significant flaws in the disclosure of materials and the disclosure process and the management of the case by the investment bank.
Speaker 2Now another case was a flip around and that's why I got confused. For a second. There was another very, very large bond default in Southern United States that involved again a project financing which went bad in less than 12 months. In this particular case I was defending the investment bank, which is a very large American investment bank second tier investment bank and the allegation that they had failed in disclosure. And I went through their materials with a fine-tooth comb, including their cash flow performance, their investor outreach, their due diligence meetings. They had site visits and I came to the opinion that the investment bank had done a very good job, they'd done an acceptable level of disclosure and that they were not at fault.
Speaker 2The fault lay with the project developer who actually ended up in criminal court and had done some criminal activity, including siphoning money away from the project. But the investment bank itself, I felt, had done a proper job and I could defend them. So those two sides are kind of mirroring each other, because the one that I'm attacking an investment bank for gross failures of disclosure and management of the transaction. On the other side I'm defending an investment bank that handled the case very, very well, very professionally, had good team approach, had good leadership and had good disclosure and I felt comfortable on both sides of that equation. So I'm not always a plaintiff or always a defendant expert. I will defend who I'm retained to protect.
Speaker 1Is there any major differences between representing plaintiffs and defendants in terms of just preparation or anything that comes to mind?
Speaker 2Not really.
Managing Case Dynamics and Settlement
Speaker 2I mean I really dug deep into disclosure materials on both cases the European case and the American case and I really took a. I went through a detailed list of all the steps they took. For example, in the American case they had done extensive site visits and they had done extensive conference calls with institutional investors about this project and had gone out of their way to answer questions and I felt they did a very good job. But I went through their materials in great detail. And in the other case, the European case, again I went in great detail through their disclosure process and their management process and I thought they had done a very inadequate, very poor job managing the process very chaotic, very undisciplined, uh, non-systematic process kind of a fly by the seat of your pants kind of process and they missed major issues and they gave some extremely bad advice. They were asked questions by potential investors and they gave clearly the wrong answer to those questions.
Speaker 1Does working for both sides make you more attractive as an expert witness in terms of getting engagements?
Speaker 2Yes, it does. Because I'm sometimes asked are you always on the plent's side? And I say no, I actually have gone through my cases and I'd say I'm roughly 50-50 in terms of plaintiff versus defendant. It's not necessarily planned that way. I mean, again, I'm hired by the first guy who called me, but it just worked out that way that I will handle both plaintiffs and defendants and I'm comfortable doing that and I'm comfortable.
Speaker 2If my side is, I think, in the wrong, I will quietly whisper in the attorney's ear you know we've got a problem here.
Speaker 2Let's try to settle this, because I don't want to say that in my report. Of course I can't say that, but no, I think the same metrics apply, the same analysis applies, whether it's a plaintiff or a defendant. You want to get into the details of the case what happened, who said what and why? And I'll say, one of the things that I like to look at the most and I always ask my attorney to do this is give me all the email strings they have, which can be considerable, but I find that people will be very careful in their public documents to be considerable, but I find that people will be very careful in their public documents and then in emails they will say the stupidest things imaginable and they forget that emails are forever, they're like cast in concrete and an email string from five years ago can say awful things, and I love to quote email strings in my report. That's a treasure trove for me of information.
Speaker 1Right, absolutely. You mentioned you know cases going to settlement. Does that affect your role as an expert witness? How common going to settlement has become over the years?
Speaker 2No, I mean I approach a report as if it's going to go to trial. I write a very detailed report, heavily researched, both academically and with trial materials, and if it goes to trial, that write a very detailed report, heavily researched, both academically and with trial materials. And if it goes to trial, that's great. If it goes to settlement, that's great. I never really know what is going to happen. In fact, the two trials that I have coming up next year I thought would settle it and they did not settle. They failed in their settlement talks. So now they want to go to trial. So I never know.
Speaker 2Now the settlement process itself I don't get involved in. They have my ex-report, they might have my deposition, and then the two sides go off in a corner somewhere and they duke it out and they come to a settlement. I don't get involved in that. There's been a couple of cases where I'm told what the settlement might be and what the offer is and I'll say, well, this is a good offer or no, it's not an adequate offer. Then they go back to the settlement table and I find that in about half the cases I'm not even told the settlement is. The settlement is sealed, and so my attorney will call me up and say, okay, cool, we settled last night, we're done. And I'll say what was the settlement? He said well, I can't tell you. It's sealed. Then my next question is is our client happy? He'll say our client's happy. He'll say are clients happy? Then I said okay, that's all that matters to me. I don't know what the numbers actually are. I don't usually learn that.
Speaker 1How does that affect, or does it affect, your contracts? Have you changed any of your billing terms to account for cases that might go quickly to settlement or might have fewer hours, or anything like that?
Expert Witness as Teacher
Speaker 2No, I just build a straight flat hourly for everything that I do and I have. I have one fee for all the work I do. I have a different fee for travel. Sure, that's less, that's less demanding, but no, it's. My fee structure is the same and I've had cases. The trial that I went to a couple weeks ago up northern minnesota, that trial had been around for six years. I wrote my expert report uh, two and a half years ago and and I thought it had died. In fact, when the attorney called me I was shocked. I said, oh my gosh, the thing is still alive. And so we went to trial. But you never know how it's going to go. So I just do a flat contract, number of hours billed, and I bill monthly 15 minute increments and that's that.
Speaker 1As an academic with courses to teach and as a a sought after expert witness and cases going, you know, six years. How do you manage all of your scheduling? How do you make sure that you have time to be able to, you know, write a report? Or, when an attorney calls you at the last minute, put it all together?
Speaker 2It's tricky and I've got a report now that I have to write in the next couple of weeks, so I'll probably do it over the weekend.
Speaker 2Yeah, the juggling can get tricky Now when I teach. About half my courses are online, which is great because I can be anywhere anytime. The other half of my courses are on campus. This morning I taught a class at 8.15 in the morning at Minnesota and I have to be there at 8.15. And then I have a class tomorrow night. It's a night class, but I have to be there on campus from 6 to 9 pm, so I have to juggle and it just gets a little tricky sometimes. It helps the fact that depositions now are more and more online Zoom so I don't have to fly to Philadelphia and spend two days. I can book a deposition in the morning and get it out of the way on Zoom. Trials are trickier and I just figure out how to do it. It's juggling, but that's okay.
Speaker 1Will the court work around your schedule to some extent?
Speaker 2Not particularly no, the trial dates. I mean there's so much logistics involved in setting up a trial, including juries and the two legal teams and the judge who has his or her own schedule. I have to accommodate my schedule to theirs and I make it work.
Speaker 1Sure. What is important about being an expert witness? Why does expert witnessing matter?
Speaker 2Well, it brings a level of analysis and knowledge into a complex case and financing cases. And of course I'm only in the finance world. But these cases can get really, really complicated and the attorneys in many cases don't fully understand the cases. The judge in many cases doesn't understand the case, or at least not the details of the case. This might be a judge who does a lot of family law or who does PI law case. This might be a judge who does a lot of family law or who does PI law. And now suddenly they're faced with things like carried interest and clawbacks and short selling and derivatives, and it's a very complex field. So I think I add a layer of knowledge and depth into a case that lawyers really can't do.
Speaker 2And the other thing I'll bring up is that, particularly for a jury trial, I learned from the very beginning that in fact one of my first cases was a jury trial, which is a real learning experience for me. And when I'm first brought into a case I'm wearing the hat of an expert. I'm knowledgeable, I'm an expert, I write a detailed report, but if it goes to trial I wear the hat of a teacher, and I'm a teacher by nature, by trade, and so I find now that my job is to sit in the witness stand and look right at the jury and I coach my lawyer to say the first question you're going to ask me is Dr Kaiser, what is this case really all about? Which is a great open-ended question, and it kind of gives me a runway. And then I try to I don't want to say the word dumb it down. That sounds insulting, but the juries really should.
Speaker 2Usually, by the end of a trial, they are swamped, they are absolutely flabbergasted, they don't understand all the technical terms and they don't quite know what to make of it. And so I try to make it very simple. I'm trying to give them the cliff notes version of this course and I'll say well, mr Jones, this case really is about fraud and this man defrauded that man in my opinion. And so I make it more understandable and simple. I don't use a lot of big words like clawback and short selling. I just talk about this person did not treat this person correctly and was fraudulent, and I don't want to say they were screwed, because I can't do court.
Speaker 1I'll say it's cheap.
Speaker 2I use really basic concepts, but I'm looking right at the jury when I do that and I find that many cases not all, but in many cases, which to me is very gratifying I'm seeing these little light bulbs go on in the jury's eyes and they kind of nod and said, oh yeah, okay, now I get it. And that's really gratifying because I'm trying to make this case understandable to them. And when I told other experts this, I'm no longer the expert, I'm now the teacher, and you have to be able to change hats.
Speaker 1As a teacher and as somebody who needs to connect with juries, have you used a lot of visual aids? Do you have, you know, charts and graphs and things to look at, and do you find that to be useful?
Speaker 2It depends on the case. In some cases we're encouraged to go electronic, with PowerPoints, and or in one case I use a whiteboard to show a chain of transactions. So a transaction here, the net gain was this, and the next transaction here then an arrow down to this transaction. So I try to whiteboard it, but again very simple and trying to show how the client made money, and or also I can do a PowerPoint. Some cases involve PowerPoints and the jury room is set up with screens or with computers. It'll vary. Most of the trials that I've been to are non-technological. I just talk Right and that's it. But some courtrooms have gone very, very technological.
Speaker 1Absolutely. I'd like to back up to one thing. You had mentioned Thomson Reuters and the Roundtable Group before. Have you found expert witness referral services to be useful in finding work?
Marketing and Finding Expert Work
Speaker 2Yes, in fact think I just went through my list of my cases a couple of days ago and I want to remind myself how many jury, how many cases I've received through a service like Roundtable Group or, in the old days, thomson Reuter or TASA. I've gotten referrals from TASA and I'd say, out of 51 cases, maybe eight or so have come from referral source. And that's nice. I like that because I meet attorneys I would never have met otherwise. I do a fair amount of online marketing myself and I get a lot of referrals.
Speaker 1What sort of online marketing works for you?
Speaker 2Well, I've been doing different experiments. First of all, I just create my own databases of law firms. So I'll say I want to see all the litigation law firms in Dallas, texas, and I usually go with the larger firms because they're more likely to have the larger cases, not the little mom and pop cases, but the larger cases. So I'll go to litigation law firms, I'll go into their website and they usually show me who the litigation attorneys are. As opposed to the PI guys, as opposed to the environmental guys, I want the litigation guy and if I'm lucky, they will show me who the chairman or co-chair people are of the litigation department. That's my target.
Speaker 2Then I do not do an email. I send them a packet of mail with a cover letter addressed to them personally, a list of all my cases, which is about a five-page list, a copy of an article that I wrote for Bench and Bar magazine and my CV. So it's a little bit of a package, but I figured if you email somebody it's very easy to delete emails. I delete emails every day. I get lots of them. The attorneys are getting more emails. But now when you get an 8 by 12 or 9 by 12 envelope on your front desk that says, mr jones, you don't throw that away, you open it up. And now I have you right and so I've tried that as a.
Speaker 2It's a little bit laborious and it costs a little money, but I get more to you. If I, if I send you an email, uh, it's very likely you're going to just delete it. You don't have the time to read it. So I've been trying out LinkedIn advertising. I've tried just direct mail advertising. And then I have a lot of attorneys in my database who I've done cases for before, and every once in a while I'll send an email saying hey, guess what, I'm still in the business and think about me. And I just picked up a case from a lawyer that I'd done a deal for about four years ago and he said oh Don, yeah, I forgot all about you here's the case, so stay in touch.
Speaker 2And I get word of mouth, I'll get attorneys calling me up cold and saying I've heard about you and I've got a case for you.
Speaker 1So it varies. Before we wrap up, do you have any last advice for expert witnesses and, in particular, newer expert witnesses?
Speaker 2Well, one thing I'll say and actually to address this to attorneys, because I've given attorney CLE seminars and I advise them if you're going to hire an expert, hire the expert early on, because the more early you bring them in, the more they can add their expertise to helping you form the theory of the case. And the other thing I've noticed when I've brought into a case late is that I'll say I want to see this, this and this in document and they'll say well, discovery is over. Well, why didn't you call me two months ago? You know, and it's hard to reopen discovery, so I'm not getting the data that I need and it never occurred to the attorney. So then, addressing young attorneys, I would say really do your homework well. And then, if you are unsure about how you present yourself, often do a Zoom call with the attorney who's questioning you, as well as somebody else, and impress them with your video skills. Because what I've learned is that there could be an expert who is deeply, deeply knowledgeable, really smart, but they don't show well, you know, they're not comfortable, they fidget, they don't handle the presentations well. So the attorney should really interview.
Final Advice for Expert Witnesses
Speaker 2And I'll share with you one story. There was a case in Florida that I was proposed for. There were two, no, there were three candidates for that position, including me. And I called the attorney up and he was nice and he saw my resume and saw my list of files and he said well, you appear to be pretty qualified. How do you handle trials? And I said I'll tell you what, sir. I will fly down to Miami on my own, nickel, and I will meet with you in your conference room and you can give me a mock deposition. I want you to see me in the flesh. I'll wear a suit and tie and you can give me a mock deposition. I want you to see me in the flesh. I'll wear a suit and tie and you can have me for two, three, four hours and interview me. And I did that and it caught him off guard a little bit, but I wanted him to see me in the flesh and see how I handle particularly handle bad questions and no disruptive questions, challenging questions.
Speaker 2Right and so we met, for he gave me about an hour and a half. That's all he could afford in terms of his own schedule. But I spent an hour and a half with him and he said, okay, you're hired, so that was worth my flying down to Miami to get hired, but really focus on how you present yourself, because you can be awesomely bright and knowledgeable.
Speaker 2But if you can't handle yourself fluently and calmly and make a good presentation and handle tough questioning because both in counsel will try to nail you, they'll ask you disruptive questions and how well can you, how well can you handle that? And that's an important skill for a young beginning expert witness who may not have that. Polish that level of presentation skill and develop that. I actually took some speaking lessons from a professional coach a couple of years ago because I found that I had a habit of talking too fast and stuttering a little bit. I wanted to learn how to slow down and deliver more effectively, and so I had about four or five classes with a voice coach.
Speaker 1It's worth it Sage advice, dr Kaiser, thank you so much for joining me here today.
Speaker 2Thank you, noah, it's been a pleasure.
Speaker 1Absolutely, and thank you, as always, to our listeners for joining me for another episode of Engaging Experts. Thank you for listening to our podcast, engaging Experts. Our show notes are available on our website, roundtablegroupcom.