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 Marketing and Reputation Management Expert, Chuck Malkus
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In this episode…
Our guest, Chuck Malkus, is the president of Malkus Communications Group, a marketing, public relations, and reputation management firm. He’s a published author, ethics speaker, and sought-after expert witness.
Delivery is everything, according to Mr. Malkus. Whether facing a judge, jury, live or over the Internet; a confident demeanor pay back dividends. Outline your three most important points, and be prepared to deliver them in a way which quickly resonates.
Check out the entire episode for our discussion on tight deadlines, being prepared for intimidation, and scoping out the venue in advance.
Introduction to Chuck Malkus
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 Chuck Malkus to the show. Now. Mr Malkus is the owner of Malkus Communications Group, a public relations and reputation management firm. He's a published author, an ethics speaker and a sought-after expert witness. Mr Malkus, thank you so much for joining me here today on Engaging Experts.
Speaker 2Well, it's great to be connected. Noah, Thank you for reaching out.
Speaker 1Of course, let's jump into it. So you've been in media and reputation management for gosh over 25 years. How did you first become involved in expert witnessing?
Speaker 2It's an interesting start, Noah. I had written a book about a law firm which included 75 attorneys. That ended up being a $1.4 billion Ponzi scheme the country's fourth largest. The amount of time that I took regarding interviews and really pursuing the bottom line as to what happened with the first case ever of its kind in the legal industry, and so that's how I got started.
Speaker 1So you have been doing this for a while now. What are the sorts of questions that you like to ask? Because a call, an initial phone call, really is a two-way vetting. It's not just the attorney vetting you for your expertise and what they might make of you or what juries might make of you on the stand, but also you're vetting them. Is this somebody who I want to work with? Do they have a case? So what are the sorts of questions that you, as an expert witness, want to hear and want to ask an engaging attorney?
Initial Calls and Expert Vetting
Speaker 2Certainly Well, first and foremost, what is the basis of the case and secondly, how far along are they with discovery, which opens up? You know that's a broad question, but you then are allowed to hear from the attorneys as to the context of the case and then, after asking those questions, where are they in the discovery process relating to depositions? And part of this questioning is for both of us to benefit in a potential relationship, because, after I read the complaint, I'm going to ask where they are with given instances that have taken place that are mentioned in the complaint and potentially something that they may ask for additionally. So I try to open it up as a conversation and I also try to let them know that I'm there more than an expert witness. I'm there as someone who will provide some expertise on what to look for.
Speaker 1Do you typically find that you're contacted by somebody who gives you sufficient time to be able to do everything that's required in the role that they want you for, or is there a lot of last minute? I need an expert witness report tomorrow sorts of phone calls.
Speaker 2Well, fortunately, I've been blessed that when I get contacted there is some time to work with at least four to six weeks, which I think that's important to have as an expert witness so that you don't feel you're on a tight deadline and that there's an urgency and that you may not be able to do the amount of due diligence that you would like to.
Speaker 1So you mentioned you know you want to know where they are vis-a-vis discovery. Does that usually require an NDA? Do you get kind of deep into the case with the initial couple calls?
Speaker 2Well, the NDAs come into play typically prior to the second call, and the reason for that you know I'm an author, I'm also a TV executive producer. They realize they're speaking to somebody who may have an interest of taking this further than an expert witness case.
Speaker 1Let's talk about your preparation routine. So you're brought on and you're going to go into a potentially contentious cross-examination or a deposition. What's your pre-depo or pre-trial routine? Some people like to drink a lot of coffee or do a bunch of exercise or fast. Do you have a routine that works for you, that gets you into the right headspace, and what other sorts of preparation techniques do you find are useful for you when getting ready to go into a potentially contentious action?
Speaker 2Certainly Well for me is to start the day early with a unsweetened iced tea to help get things flowing properly as far as my adrenaline. And then what is also important, because preparation is key for any expert witness. But, just like I teach in my speech classes as a professor, preparation begins with an outline and, most importantly, knowing what your top three or four points are, so that you are able to deliver messages which resonate and raise eyebrows.
Speaker 1Speaking of being a speech professor and also a public speaker. What are some of the sorts of techniques that other expert witnesses can utilize to make sure that they're presenting their best selves in front of juries and judges?
Speaker 2Well, it all begins. Foremost is eye contact, confidence and a strong presence. You are not only the expert, but I, you know, tell myself that I'm the guru. You know that might sound a little cocky, for lack of a better word, but you have to know your stuff, okay. Know your stuff okay and it's what I also tell other generations is, if you do the work, you do the research, you take the time, you ask questions, you have a curiosity of everything that may be involved, then, when it comes time to step up, you are going to do excellent, and it's the attitude that you have to have. There's a reason why you are there.
Speaker 1What are some of the caveats? What are some of the problems that newer expert witnesses run into their first time being, you know, in a really tricky deposition or when the during cross-examination, when they're getting peppered with a lot of questions and impeached on their credibility.
Speaker 2Well, there's a couple of things. Number one potentially to be intimidated by who's on the other side of the table. When you go into a large conference room and there may be four or five attorneys and a couple of other individuals on the other side, and I always also tell them you know and this is a TV producer side of me don't ever drink their water, don't ever allow them to give you something to eat. If there's something you need, you excuse yourself and you go to a soda machine. Number one you know you don't want to leave any imprints or you know any other reason for them to take that bottle of water or glass or anything else, if nothing else to try to outsmart you. Okay, as far as first impressions, all right, you are the strength and you're just as strong as they are. I tell the younger generations all the time All right. And then, secondly, I think it's an important fact not to believe that they will ever be your friend.
Speaker 2I mean one of the cases an attorney came in and he had a full box of copies and my books. He had all four of my books. He had file after file after file of what he had pulled up about me and he said you know, I've spent a lot of time reading about you and I said great, then that will make this deposition easy. Going to try to maybe give the impression that he had found something about me personally or that he was prepared to ask me you know a lot of questions and was going to catch me off guard. I think he was really trying to imitate me and I had to come back and let him know I appreciated it. You know how much he had read and he had bought my books.
Navigating Depositions and Cross-Examinations
Speaker 1Some of the best ways to communicate helpful strategies to newer expert witnesses is through story, and I would like to know what are the pivotal cases, what are the moments in your career as an expert witness that either reinforce something that you were already doing or change some aspect of the way that you go about expert witnessing?
Speaker 2Certainly Well. I'll provide a couple examples, noah, with stories of cases that I've been involved in. So the first one involved a country in South America, okay, and this country had signed a contract for marketing services and with the goal of promoting tourism, promoting visitor engagements, tour operator engagements, travel agents, and it was a multimillion dollar contract and it was with a marketing company in the United States and sadly, the marketing company did not have the expertise, clearly, because they did not deliver on the contracted items, number one, I mean not even a quarter of them, and then, number two, for the ones that they did deliver, they grossly inflated numbers which were associated with billing. So, as an executive producer for television series, I know the cost of production, of hiring camera operators, of a day-long video shoot. Okay, they were charging almost 10 times what would be the norm, the industry norm, and so I credit my experience in the film industry to absolutely upfront identify where there was huge gaps, overbilling and simply a lack of expertise.
Speaker 2There was a second case which actually involved a healthcare organization against a large law firm, both for reputational damage and then, secondly, legal malpractice, and as part of this complicated case, the other side had claimed that they were not properly having reputational harm steps taken and it related to media coverage. It related to things that basically, they're saying that their reputation had been severely damaged. But when I took a deep dive, I clearly saw where they had made mistakes relating to proactive media, relating to charges that they had incurred with a public relations campaign which was very flawed and how they had misspent money that they then wanted this attorney and the law firm to pay. Now it was a complicated case and it was quite extensive, but I took it apart, I broke it down and then I was able to deliver an expert witness report which basically tossed the misinformation that they were providing and that they were trying to achieve damages on.
Speaker 1Wow, when you're writing that sort of expert witness report, how do you go about unpacking these super complex situations and making them digestible to people who are laypersons vis-a-vis your industry?
Speaker 2You're right. It begins on the fact that even law firms don't have deep knowledge of news media, of steps of being proactive to achieve media coverage, including television and social media. And then I always keep top of mind if this ends up going to trial, I'm going to be sitting in front of a jury box. So, to answer your question, first, you got to keep it simple the old KISS, okay, and there's different variations of the last two letters, the two S's. And then, secondly, what I try to do is look at each page of the complaint and put it in outline form and then bullet what is being claimed and what is reality. I try to keep it simple for myself, but up front, having in mind the jury box and attorneys who may not have the media knowledge.
Speaker 1Do you use demonstratives in any of your work charts, graphs, models, anything like that?
Speaker 2Well, I have, but again they're very basic. Number one, I think. Number two at the end of the day, as an expert witness, most of my cases are settled before trial based on the fact-based information that I provided. Number one and sometimes I'll give specific examples of deliveries as a public relations agency had with campaigns that I previously have been involved in. So if the numbers don't add up and if the case was go to trial, then sadly the other side probably wouldn't achieve any success.
Speaker 1To what extent does demeanor play a role in connecting with juries and expressing, you know, getting these points through to them and judges, for that matter, in bench trials?
Speaker 2Great question, demeanor. Number one you must be authentic. You must come across as someone who is not only an expert but has knowledge in the area. And number three even to have some passion for what you do, what you believe in and what you have reported To what extent is the use of humor, a little bit of levity?
Speaker 1Is that a valuable technique or is it too dangerous to bother with?
Speaker 2Let me say, first and foremost, that humor can be risky. However, if you are prepared in advance with a one-liner one let me be specific, only one one-liner it can come across again as you are authentic and you are speaking from the heart and, most importantly, connectivity, whether it be a judge or the jury.
Speaker 1So a lot of these actions, whether they're depositions or even whole trials in some cases, have moved to telepresence. Has a lot of your work lately been online?
Speaker 2Some of the work has been online. Yes, and it's actually in a form of depositions that take place online, and it's not surprising, at the same time, what we've mentioned about your presence Online or in person. You should take it upon yourself to portray a strong presence and a confident presence.
Speaker 1That's exactly where I was going, so it can be difficult to remember to do things like maintain eye contact, because eye contact in telepresence isn't where the person's window is on your screen, it's at the camera, of course. So what are some of the differences between working online in telepresence versus being there, and do you have a preference for either working online in telepresence versus being there?
Speaker 2And do you have a preference for either? Well, ideally, I'm happy to be there. I want to be present in the moment and I feel even body language, for in person, you know, at trial, in the courtroom, use of your hands to emphasize a point, raising your eyebrows, facial expressions all the things that I teach in this Fundamentals of Speech course at universities also need to be expressed when it is a video call, a video deposition, where you can still not at the same extent the eye contact, raising the eyebrows, if you have to occasionally use your hands. It shows that you are engaged, it shows that you are passionate, you are high energy and you're prepared to take on whatever's going to come in front of you.
Speaker 1Absolutely. Have you worked in different venues? Obviously, there's state courts, there's federal courts, there's crimes and torts. Have you worked in different venues? Obviously, there's state courts, there's federal courts, there's crimes and torts. Have you worked across different venues and, if so, what are some of the differences that you, as an expert witness, experience?
Expert Witness Billing and Engagement
Speaker 2Well, it's primarily different what would be county courts and state courts, and I think the only difference really is when you go to a venue that you may not be familiar with. I always encourage arriving at least a day early, walking the venue, have a personal comfort of what you're going to see, what is taking place, so that you aren't in any way overwhelmed. I mean and I say that because, as an expert witness, you know, I take my role very personally, and what I mean by that is that this is a professional delivery that I'm responsible for and I just don't want any surprises and I want to be totally comfortable, and so I think to walk around the day before can really help achieve that.
Speaker 1You talk about arriving the day before. That brings me to travel and other billing considerations. What is your billing schedule like? For instance, do you use a non-refundable retainer? Do you prefer project rates or hourly rates? Do you have a different travel rate? Tell me a little bit about your billing schedule.
Speaker 2Sure Well, as an expert witness, I strongly believe the importance of having a non-refundable retainer up front and most law firms should respect that and value the fact that this is what you require to deliver the services on their behalf number one. Secondly, and it's in the contract, engagement starts upon receipts of the bank wire and then due bill hourly. If it's a complex case and the retainer is spent, then an additional retainer is required, Payment up front for travel, which frankly is 50% of what the hourly rate would be. And I do express to the law firm the benefit of arriving a day early and taking the time to do a walkabout, and mostly that's appreciated.
Speaker 1Let's talk a little bit more generally. Let's talk about getting off on the right foot with an attorney. So you've decided that you are the correct expert. The attorney likes you, you're into the case and it feels like something that you can truly help with. What are the sorts of things that the expert and the attorney can and should be doing and looking for to ensure that the engagement will be productive and efficient and enjoyable for both parties?
Speaker 2Well, I think that that begins the first or second call before you're engaged, to express how you approach a case, how you feel that time will be best utilized, and to let them know that one of the ways this is my process, this is my procedure of doing an outline. This is what I'm going to be looking for. If I have any questions as far as materials, I will let you know. You will find me to be very responsive. I have no problem working long hours. Deadlines are something that my life has always been about and that I personally will make myself available if I need to on a weekend. I mean, sometimes when you get down close to when your report is due, even if you've had four or five weeks in advance, you know there are things that happen at the last minute which could even be an investigation or a deposition by the law firm.
Speaker 1As somebody with a very deadline-oriented career, both in media but also in expert witnessing, how do you keep your schedule together and make sure that you do have sufficient time, because some of these cases can go on for weeks, months, in some cases even years. So how do you make sure that you are able to find the time and that you can give enough attention to each case that you've got going on simultaneous?
Speaker 2Oh, correct, noah. The key thing is time management. Number one. Number two I keep a calendar where I block out hours at a time. And then, third, you know, I make a point of organization with files that will relate to each weekly task, broken down to what is a priority on each given day of the week. And I believe you know very strongly if there's going to be a case which is, let's just say, going to conflict with the amount of time that you have in a given month, you just express that up front and be honest about it.
Speaker 1Have you had to turn down any significant number of cases for lack of time?
Speaker 2Not for lack of time, I did turn down a case which involved a and claims which upon my first glance didn't add up, and again I wasn't going to take on something which later could be a nightmare. I really want to be able to take on cases that I personally believe in, and if there is too many exaggerated claims then you know it's not for me.
Time Management and Final Advice
Speaker 1That's really interesting. Are there any other red flags? Maybe one other?
Speaker 2red flag on a separate case related to a high profile organization which was already having some issues that then actually became a plaintiff in a case against a marketing communications agency and it was a multimillion dollar case where they were claiming that deliverables were not achieved. And I don't know. You know you got to go with your gut feeling and it just didn't pass the smell case, so I walked away.
Speaker 1Yeah, yeah, it's important to know when to say no. I've written on the subject. One of the things that you would mention that stuck with me was being a member of some of these complex litigation teams, these trial teams. You know, sometimes there are a lot of moving parts to these. There might be everything from assistants to paralegals, multiple attorneys and expert witnesses, each in their own field. To what extent, when there are other expert witnesses around, are you interfacing with them during your expert witness engagement, or is it largely compartmentalized?
Speaker 2No, it's exactly the latter as you've just expressed. No, I'll share one. There was one where there was financial damages that were involved, and so there was an expert who was a CPA, who I needed to speak to after he had written his report and the report was filed. I needed to have a clear understanding of the formula that he had taken to opine and to provide testimony. I needed to be clear, without any question, and so there was a conversation based on the CPA's report.
Speaker 1Before we wrap up, do you have any last advice for experts or attorneys that are working with experts and particularly newer expert witnesses?
Speaker 2Sure Well first for newer expert witnesses. Sure Well first. For newer expert witnesses, I express the number one skill set they need is to be curious, to be able to ask questions, so that they will have the knowledge and the ability to write an expert report which is fact-based and which provides new insights. I think for the younger expert witnesses, just an understanding that there's more to the information that you will receive. Don't just proceed with only what has been forwarded to you. Take the extra mile and add value and be able to do a deep dive and even offer that to the law firm.
Speaker 2For attorneys even attorneys who have been around a long while I think it's important when they are interviewing potential expert witnesses, to consider the added value that a given witness may bring, based on their industry experience number one, and then, secondly, what their initial.
Speaker 2When you get to the second call, after you've read a complaint, what are some of their initial takeaways and what are some of the initial impressions that the expert witness has gained as a result of taking some time and not only looking at the complaint? But, frankly, every expert witness in my opinion should do some significant Google searches, all right to look what may have already been in the media to look at what may have already been posted on a social media channel. They have a clear understanding of what social media posts have been associated with, not only this case, but potentially the individuals who have been involved, but potentially the individuals who have been involved. So it's really going an extra mile and expressing that Because, look, you just can't rely on initial discovery. All right, and in most cases along the way, there will be additional discovery, there will be additional depositions and, frankly, if there's one point, of information that's fact-based that you can add to provide to the attorney before additional depositions.
Speaker 1you are adding value to the case and to the law firm. Mr Malkus Sage Advice, thank you so much for joining me here today.
Speaker 2It's been my pleasure, noah, and keep up all your efforts to make a difference for the legal community and these people, to provide knowledge and to help them with their preparations Absolutely.
Speaker 1Absolutely, and as always. Thank you to our listeners for joining me for another edition of Engaging Experts Cheers. Thank you for listening to our podcast Engaging Experts. Our show notes are available on our website, roundtablegroupcom.