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 Economics Expert, Dr. Philip Cross
Ever wondered what happens when economics meets the courtroom? Dr. Philip Cross pulls back the curtain on the fascinating world of economic expert witnessing with refreshing candor and practical wisdom.
After earning his PhD from the University of Wisconsin and teaching at Georgetown University, Dr. Cross transitioned through major consulting firms before founding his own successful practice. His journey reveals a counterintuitive truth: authenticity trumps polish in the expert witness business. "I've kind of unlearned over the years to try to be slick and professional," he explains. "I'm just myself."
The conversation explores the delicate balancing act economic experts must perform – applying economic expertise across diverse industries without overstepping boundaries, managing different attorney styles from micromanagers to completely hands-off, and navigating the stark differences between plaintiff and defense work. Dr. Cross maintains a deliberate mix of both to protect his credibility.
Perhaps most illuminating is Dr. Cross's perspective on what makes attorney-expert relationships work: clear communication, appropriate boundaries between experts and end clients, and mutual respect for each other's expertise. Whether you're a practicing attorney, aspiring expert witness, or simply curious about how economic analysis shapes legal outcomes, this conversation offers an unvarnished look at a profession few truly understand.
This 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 Philip Cross to the show. Dr Cross is the founder of Kenyon Consulting LLC, an economic and statistical consulting firm. He has over 20 years of experience as an economist and statistician in academia, government and consulting. Dr Cross holds a PhD in economics from the University of Wisconsin. Dr Cross, thank you so much for joining me here today on Engaging Experts. Oh, it's my pleasure, Noah. Thank you, Of course, let's jump into it. So you're a PhD economist with a background ranging from gosh academia to consulting. How did you first become involved in expert witnessing?
Speaker 2:Okay. So yes, when I first finished my PhD, I went into academia. I taught in the economics department of Georgetown University for a few years, then I left academia and I entered consulting. And when I first entered the consulting world, I was already living in Washington DC because I had been working at Georgetown. And there's a number of big consulting shops on K Street, on Pennsylvania Avenue in downtown DC, and I ended up working at one or two of those for the next few years, including Deloitte. There's another mob called Berkeley Research Group and then there's another mob called Alex Partners, and after doing it for a few years, I basically just decided to go out and start my own business. So that's what I did five years ago. So, yeah, I've been an expert witness for a while and I started my business five years ago and it's going gangbusters. So it was the right call to make that move five years ago.
Speaker 1:Yeah, tell me about your first call. So you get an engaging attorney, randomly, calls you out of the blue and says, hey, we need an expert in your field. What's that first call like? What are the sorts of questions that you're asked? And, now that you've been doing this for a while, what are the sorts of things that newer expert witnesses should know and should also be asking? Because it is a two-way vetting process they're vetting you as an expert, but you're also vetting them. Is this an engagement I want to take?
Speaker 2:Yeah, that's an excellent question, Noah. So my style may or may not be relevant to new experts. Basically, yeah, earlier in my career I got a lot of advice that I tried to follow, which was you've got to be very slick, you've got to be very professional, you've got to tell the potential client what they want to hear, and following that advice didn't really get me anywhere. I'm kind of a take me how you see me sort of person, and if I'm not behaving like that, I just feel like I don't come across as the best version of myself. So I actually ignore these days, I ignore all that sort of advice, and when a potential client reaches out to me, I'm just very frank with them. You know I have experience with a number of different areas of economic consulting, and so sometimes I have the potential to be engaged on a matter that I have a ton of experience in, and so then I'll just say, look, I've got a lot of experience doing this sort of a damages analysis or whatever it is, and I'll explain it. And then on other occasions I'll be kind of chasing a lead where I don't have a ton of experience, but then perhaps it's the sort of case, it's the sort of litigation where I kind of think, well, well, I don't have specific experience for this stuff, but I think there's probably no economic experts out there that have a specific experience in this stuff. You know, so I can, I can throw my head in the ring along with uh, along with everybody else, and, uh, we can see how I go and, um, yeah, so I just I've kind of weren't over the years. I guess I've kind of unlearned over the years to like try to be slick and professional or whatever. I mean I just I'm just myself. It's not that I'm completely unprofessional when I'm being myself, right, but you know, it's just I don't put on any bells and whistles to try to impress people.
Speaker 2:I can actually tell you kind of one or two interesting stories about some gigs that I've gotten, and I was kind of curious as to how I got them. So, um, a few years ago I got a um, I got a plaintiff side matter, uh, working with the plaintiffs on a class action in um, a class action in Alabama. And then, like the next year that so I was maybe two years ago I got another one one. This one was I was working on the defense side in litigation in Mississippi, and at that point I'm like you know, I don't really think about getting a ton of business from the deep South. And so I thought, oh, this is curious. I ended up with this you know, this one gig from Alabama and this other gig from Mississippi.
Speaker 2:And I was talking to a friend of mine and this friend of mine said you know, phil, I think I know what it is. I think a lot of these southern lawyers, especially lawyers from the deep south, they're looking for an economic expert. Most of the economic experts I go to, a lot of them are going to be similar to me. They're going to be white guys with PhDs and they're going to live in the mid-Atlantic or in the northeast. That's Atlantic or in the Northeast, that's all like me. But then the way that I'm different is these guys are all going to talk like Yankees, right, and so I don't sound like I'm from the South, but I don't think I sound like I'm a Yankee at all, and my friend has a theory that that's maybe where I got those gigs. And who knows, maybe that's true, maybe that's true.
Speaker 2:And there are other kind of wrinkles that I can kind of go with. You know, I moved from Australia to the US to go to grad school, and so I lived in Madison, wisconsin, for five years while I did my PhD at the University of Wisconsin, you know. So I occasionally get kind of leads for something in the state of Wisconsin, so I'm always going to like put my hand up and say, look I, you know, I spent five years living in Madison. I got my PhD from the University of Wisconsin. So I'm always going to like put my hand up and say, look I, uh, you know, I spent five years living in um in Madison. I got my PhD from the university of Wisconsin. You know, if I, if I have to end up testifying in front of a jury in Milwaukee or whatever, um, you know, I will be speaking with an Australian accent, but I will have that little local connection that I can kind of kind of draw on.
Speaker 1:So yeah, One of the things that you mentioned that was interesting to me is you know you get engaged for some very hyper specific niche that there may in fact be no economist that is an expert in that very, very particular thing that they're looking for. How do you go about disclosing to the client hey, I have the skill set for this. I haven't. You know, I'm not necessarily an expert in it because nobody is, so there might be some research. Tell me about how that. How does a conversation like that go?
Speaker 2:Okay. So that's an interesting question and before I answer that question, I will just confirm that the premise of your question it's, it's really, it's, it's, it's a really good one, because I have had, uh, I also work with some expert search firms, like the Roundtable Group. There are some others I work with as well, and these expert search firms sometimes reach out to me and they have the most ridiculous requests for the sort of expert they're looking for, right, oh, we want an economist, we want an economic expert who has a PhD in economic and who's very steeped in the solar panel industry in the northern part of the state of Arizona. You know it's like, ok, okay, well, good luck finding that person, right. So, but sometimes I get these requests coming, come in that are like that. So, to answer your question, um, I, uh, it's important for me when I'm retained to work, for example, on on a litigation matter, and 98% of my work is litigation expert witness work in litigation matters. When you're working on a litigation as an economic expert, it's very important that the parameters are set so people know that you're opining as an economic expert and you're not opining about anything else.
Speaker 2:So, for example, I'm working on some arbitrations at the moment that involve the video game industry, and I've had to develop some knowledge of how that industry works to be able to work on these matters. But I'm not expected to become an expert in the video game industry and like, for example, some of the research I did to learn about this stuff was, you know, just Googling and talking to my 12 year old son, who knows he's a gamer and I'm not right. So that's that's kind of why I've learned a little bit about the parameters of the industry. And then, on this, this particular matter I'm talking about with the video game industry, the lawyer I'm working with is good in that he realises that you know, I'm not expected to be an expert in the video gaming industry and I'm expected to be an economic expert. So that's something that's good to set out from the outset, that you know I'm not an industry expert in whatever the industry is I'm, I'm opining as an economic expert.
Speaker 2:And then, by the way, another trap that you know advice for young experts, another, another, another pitfall that you don't want to fall into when you're a young expert is, if you're, if you're giving deposition testimony or if you're writing an expert report, do not offer a legal opinion unless you are in fact, a lawyer, but you know I'm not. Most economic experts have PhDs in economics, but they're not lawyers, and that includes me. So I have to be very, very careful that I'm not offering anything that can be interpreted as a legal opinion because of then because again I'm going to be opining about an area outside of my expertise, which is a big no-no. So I'm really cognizant of trying not to do that.
Speaker 2:So, yeah, so I work on matters in a ton of different industries and I'm not an industry expert in any of them, you know. But I've been doing this, I've been doing this for a while. I've been an economic expert in any of them, you know. But I've been doing this, I've been doing this for a while. I've been a, I've been an economic expert for 15 years, and so you occasionally kind of get a lead for a matter where you know you there's there's kind of a, there's kind of some similarity to some some matter you've worked on earlier, and so you just get to tell the potential client about your experience there as well.
Speaker 1:Is there some kind of a tacit understanding that you're going to have to do some preliminary foundational research to be able to apply your opinion to these potentially unfamiliar areas such as, you know, video games? You have to look, you have to learn a little bit about something just so that you can you can apply your economic expertise to it. Is that a billable occurrence? How does all of that work?
Speaker 2:Yes, it is a billable occurrence, although a lot of my clients are kind of price sensitive, so they're interested in the price I'm going to take with a view to keeping the bill down. And, by the way, I've been running my own firm, kenya Consulting, for five years ago, and this is a little bit of a niche in the market I had, because before then I was working for these big downtown DC economic consulting shops who are not at all flexible on their billing, right, you know they bill at top dollar and that's fine, that's their business model. But now that I've ventured out on my own, I'm kind of chasing after a different market than what you know those guys typically capture, and so I pretty much everything I can anticipate doing. I'll tell the client that's going to be billable and yeah, so doing research into a particular industry that I'm working on is going to be billable. It normally doesn't take too long and I use whatever resources I have available.
Speaker 2:As I mentioned before, my 12-year-old son is a good resource sometimes. I also have a couple of fantastic junior staff that work for me on a contract basis. Really smart guys. One's in grad school, one's an undergrad, and these guys are like 22 and I'm in my 50s and so they just know about certain parts of the US economy that I don't really know about again. So yeah, I draw wherever I can on helping to get on top of stuff like that. But to kind of answer your question is yes, to the extent that I anticipate that I'm going to need to do research like this, I do bill for it. But I'm always trying to be up front with clients about what I anticipate is going to be involved in a particular project and what I anticipate the billing is going to be.
Speaker 1:Since we've ventured into billing, let's talk for a moment about how you structure your billing. Do you have a non-refundable retainer? Do you have different billing rates depending on what you're doing? Is it just one simple billing rate? Tell me a little about the anatomy of your billing.
Speaker 2:Sure, so I, I don't charge a retainer. Um, and that has come back to bite me on two, two occasions I've been in the five years I've been running my own business I've been stiffed twice, once for five thousand dollars and once for nine thousand dollars. So both of those, so you know both of those situations when they occurred were really really, really annoying. But you know, price of doing business it's, I'll kind of take it. You know it's kind of unrealistic to expect that's going to happen 0% of the time. So it has happened twice for me and so I can, you know, I can live with it and my response to that is to not insist upon a retainer. I just try to feel out clients to to make sure that they're kind of legit, and I try to kind of avoid, uh, um, kind of getting involved with, uh, someone who, um, I think is likely to do something like that. So I don't charge retainer. Okay, as to as to my bill rates, yes, I have a tiered system. I have a bill rate that, um, I quote for defense work and I have a bill rate that I quote for plaintiff work that my defense bill rate is higher because clients on the defense side tend to have deeper pockets. And again, let's think back to when I work for these. You know big downtown economic consulting shops in on Street or on Pennsylvania Avenue in DC. 95% of their work was defence side work because they've got these defendants with deep pockets who can pay those high rates that those guys charge. So back in those days I was doing a lot more defence work. These days I do not zero defence work, I do a mix of defence and plaintiff. Maybe it's 25% defence and 75% plaintiff. That's kind of how it works out for me these days. And, by the way, I really like having a mix of plaintiff and defence work because if I just did purely plaintiff work, there are some economic experts out there who only do plaintiff work and I don't want to be one of those people because I think it makes my integrity and my reliability as an expert able to be challenged. You know, when I'm testifying it's like, oh, you're like a high gun for the plaintiffs and I'm like, well, actually, no, I do this type of work for the defense as well. And if I was, you know I can point you to situations where I've used pretty much the same sort of analysis on the defense side of a particular type of case and then another time when I did the same thing on the plaintiff side of a particular type of case. So that really protects me from those sort of attacks on my integrity. So that was a little bit of an aside, yeah.
Speaker 2:But back to my bill structure. I have a higher bill rate that I quote for defense work and I have a lower one that I quote for plaintiff work and on top of that those two rates that I quote they're kind of my you know I can use the term from the hotel industry they're kind of my rack rates. You know, that's kind of a starting point. But if I think, if I think a matter is interesting to work on and I'd like, I'd like to get the rate, I'll say, look, my standard rate is X, but this sounds like an interesting case, and if my standard rate causes you guys to balk about hiring me, we can talk about me being flexible in the rate.
Speaker 2:And I do that. Yeah, I discount off my standard rates more often than I charge my standard rates. So that's again, that's another part of the flexibility that I have from running my own one-man shop and it's great and it's kind of a mix of things If it's going to be like a big gig, if it's particularly interesting, if it's maybe not a big gig, it's a small gig, but it's the sort of thing where it could lead to further work down the line with the same client or the same law firm. I think about all these things and you know I don't have this set formula in my head, it's more of a subconscious thing. But I kind of think, oh, I'll be OK with giving these guys a bit of a discount if I think that's what it means for me to be retained to work on this particular matter.
Speaker 1:So yeah, Are there any travel considerations?
Speaker 2:Do you charge a different travel rate? Yeah, so I don't. I don't charge for. I don't charge for travel time. So, for example, I flew out to las vegas to testify in a trial last month. Yeah, it's now august, so that was in july, so that was last month. I flew out to vegas to testify in a trial, so I don't charge for the flight. I'm in, I'm in the dc area. I don't charge for the flight out there, for my time, for the, the flight out there and the flight back. You know, obviously I am reimbursed for my travel expenses but I don't charge for travel time. But typically, if I'm flying to Las Vegas to testify in a trial, I'm going to spend at least part of my flight like reviewing my stuff and preparing for my testimony. So that's billable work, right? I'm prepping to give testimony, so yeah.
Speaker 1:Sure, I'm backing up to you were talking about working for the plaintiff versus working for the defendant?
Speaker 2:Besides the rates, are there any other fundamental differences as an expert witness working for a plaintiff or working for a defendant in terms of report writing, preparation, anything else? The types of reports that I do involve involve a damages analysis and they are quite different between the plaintiff's side of the defense side, the plaintiff's side. You're typically writing what's called an affirmative report. So you, you know you're the ball's being kicked off the you, you're that you're the first person to possess the ball to use a sports analogy right? So there's there's damages at issue.
Speaker 2:On the plaintiff's. You write what's called an affirmative report and you say I've done this economic analysis and I think the plaintiff or plaintiffs in this particular matter have been damaged by X dollars. Okay, and then when you're retained on the defense side, you come in as the economic expert on the defense side and you're typically not doing anything affirmative because the plaintiff's economic experts report is already out there. So it's your job to rebut that report. So you're not coming up with your own number, you're looking at the number that the other side came up with and you're looking for kind of credible, reliable reasons to call into question the analysis that they used. So that's a good question. For an economic expert, plaintiff side work and defense side work can be quite different.
Speaker 1:In structuring those rebuttal reports? Is it just a line by line situation or are you whole cloth writing a separate report that just addresses the points that are in the affirmative report?
Speaker 2:Yeah, so you do write a separate report and for example, I could write a rebuttal report to an affirmative plaintiff side report. That was 50 pages and my rebuttal could be like 80 pages. You know, it could even be more involved. But but even if it is an 80 page report, every part of the report is rebutting a particular part of the affirmative report that was produced by the plaintiffs. I'm just trying to think I've ever worked on a defense side case where the defense asked that was produced by the plaintiffs? I'm just trying to think have I ever worked on a defence side case where the defence asked me to ignore what the plaintiffs did and just come up with my own economic analysis? I don't think I've ever done that. I'm blanking on thinking of that. I suppose there are certain situations where that might happen.
Speaker 2:You know, the other thing is the type of jurisdiction that you are working in can affect things as well. I work a lot in federal court and also work a lot in state courts in various states around the US. But I've worked in other venues as well, like I've worked for the Human Rights Commission of Alberta in Canada, for example. I had one gig there. I've had gigs in Australia they work a little bit different than they do here. So Australia has this interesting thing. I've actually never worked on a case like this in Australia, but as an economic expert I would love to.
Speaker 2:Australia has this interesting wrinkle that they sometimes adopt. That's called hot tubbing. It's actually not as sexy as it sounds, but it is actually quite interesting. And that's where and that's where you have some sort of a trial or some some sort of a um, some sort of a hearing where the uh, the economic experts for both sides turn up at the same time and they both kind of talk back and forth and the judge, or whoever the person is presiding over the hearing kind of questions both people and so you kind of both present your testimony at the same time, according to what the judge is interested in hearing about or not interested in hearing about. So I've never been involved in a hot tubbing case, but that would be, that would be fun. That's kind of. It's kind of an interesting way to do things and it's, you know, it's going to involve thinking things through a little bit differently than how I normally do it.
Speaker 1:So yeah, and, fascinatingly, they're starting to use hot tubbing in the United States, in certain limited circumstances, it's becoming a thing. I actually wrote a couple months ago an article on the topic really interesting stuff Besides that. When you're working in a new venue, what is the preparation like? Do you have to know anything about the, the laws or anything you know does? Does your attorney have to prep you? Okay, this is the first time we're going into this state and there's some things you have to know about presenting your case here or writing your report here, or, you know, just being prepared for this particular venue. What's it like working in a brand new venue?
Speaker 2:Yeah, so I work in brand new venues like all the time. I mean, you know, I'm based in the DC area so I do stuff in District of Columbia Superior Court a lot, and also like the Eastern District of Virginia and other places close to DC. So there are some jurisdictions I'm in again and again, but there's plenty of others where I'm just kind of one and done. And yes, there are rules in different jurisdictions. I can tell you, um, I can tell you one that comes up all the time uh, pre-judgment interest. So if I'm writing a, an affirmative report where I'm saying some plaintiff has been damaged because of something that happened to them three years ago, or whatever, um, jurisdictions, let you add pre-judgment interest. So if I can say this person has been damaged by half a million dollars, but that's because of how they were treated three years ago, and then you can add prejudgment interest to that, to get up to where you are today and different jurisdictions have different amounts of prejudgment interest. Some jurisdictions although I've never worked on one of these, but some jurisdictions basically don't allow prejudgment interest considerations at all. Jurisdictions basically don't allow prejudgment interest considerations at all, so that that's a possibility. Lots of jurisdictions have as as kind of the standard six percent. So six percent per year prejudgment interest, that's a common one, some jurisdictions. That depends on the type of law that's being challenged in the particular litigation you know. So it could be six percent for for this sort of challenge conduct and it could be 10% for some other sort of challenge conduct. And then there's other jurisdictions that say the prejudgment interest should be based on actual interest rates, like the actual prime rate as published by the US Treasury.
Speaker 2:You need to get on top of how the rules work. I mean, especially for an economic expert, prejudgment interest is like a big thing. You have to get on top of how the rules work in different jurisdictions, make sure you're doing the prejudgment interest calculation correctly. And then another part of your question was do the lawyers like let you know, you know, kind of guide you along with this? And in my experience the answer is absolutely not.
Speaker 2:It's normally me telling the lawyers that hey, you know you have to go and figure out what the prejudgment interest rule is in this particular jurisdiction and you've got to come back and tell me what it is. Because lawyers that I work with, I mean I work with some smart ones and some really good ones, but this is just something that I don't think about. I think their kind of base way of thinking is oh, I'm retaining an economic expert, he's just going to go away and do everything, and that's not quite how it works. It's like I'm going to have to say hang on a minute, you've got to help me figure out this, you've got to help me figure out that, and so one of those things is this prejudgment interest issue.
Speaker 1:Shifting gears a little bit. Let's talk about preparation. How do you get ready for the big day? Whether or not it's a deposition or if it's going to be some cross-examination, something's going to happen in court. You have to prepare for it. How do you like to get ready?
Speaker 2:Okay, that's a good question. And again, let me talk about lawyers again. So I've worked with a lot of lawyers who I like. The small minority of the lawyers I've worked with I haven't liked, but most of them I like. But I've worked with lawyers that I like who have a completely different approach. Some of them are very, very hands-on and want to kind of hold my hand and walk, walk me through every step of the process leading up to kind of testifying in a deposition, for example. And then I've also worked with lawyers who I just like. I hear from them like five minutes before the deposition is supposed to start, even though I've sent them like four emails in the previous three weeks about hey, are you okay with me doing this? And so you know.
Speaker 2:So different lawyers take a different approach. These lawyers that want to take a completely hands-off approach. I'm kind of okay with that because I feel like you know, I can guide myself in a way that's going to like best serve the clients. So it's really kind of client-specific, specific. It's really kind of um, lawyer specific, uh. And I can even give you a third example of the type of lawyers that I work with.
Speaker 2:Uh, one lawyer I worked with, and the first time I worked with him he was kind of very hands-on, um, but then that that case went really well and he was very happy with my testimony, my expert report and then, and then he was happy with me. So he retained me again and I worked with him a second time. The second time he was completely hands-off. It's kind of like oh, phil is now a known quantity, so I'm just going to let Phil go and do his thing. It can work that way too. Do you have a preference? I mentioned that there are some lawyers that I kind of don't like working with, and I think that's when the handholding gets to be to the extent that it's kind of verging into micromanagement.
Speaker 2:I don't like being micromanaged. I guess my preference, you know, it's kind of Goldilocks Not too far one way, not too far the other way. Just a little bit of guidance, but not too much that you're veering into micromanaging me.
Speaker 1:Do you have any pre-trial or pre-deposition routines? I've had Experts tell me they like to drink a lot of coffee, or they like to fast, or they do yoga or whatever it is that they like to do. Is there anything that gets you in the right headspace? Okay so.
Speaker 2:I mean, again, lawyers will give you advice, and the bit of advice I get the most is like the night before trial, don't do anything. It varies from your regular routine, you know. So if you normally get eight hours sleep, try to get that hour sleep. If you're eight hours sleep, and normally between the hours of 10 pm and 6 am, try to make it that blah, blah, blah, blah, blah. And you know I have some toys that lawyers that tell me like, do the same routine. And again you and sometimes this is ridiculous advice because you know for one I could be traveling.
Speaker 2:I remember one thing I was testifying in because there were a lot of witnesses and a lot of lawyers to save some money, the law firm actually rented an Airbnb that everyone was staying in, you know. So everyone's not booking hotel rooms. So I mean that's kind of smart, although the issue was this was kind of a pretty crappy airbnb and the air conditioning didn't work very well. It's not like it didn't work at all. But I mean I I didn't get the. I didn't get a regular night's sleep. It was not a regular night for me because I was not at home in in my house. My air conditioning works just the way I like it and lets me get eight hours sleep. So you know what you can. But I mean, yeah, you end up doing kind of impromptu stuff, uh sometimes. So this kind of this kind of you know, stick to a regular routine, yeah, I. I mean, I I guess, as I don't, I don't know if it's like a pre, it's kind of a pre-routine. It's like once you get in there and the and the and the and the spotlights on and you start talking, then I think it's important to kind of stick to your routine. And again, you know, I've been doing this for a while now, so it puts me in a good position, you know, because I've kind of. It's kind of I know kind of what to expect.
Speaker 2:There's different types of. You know, in deposition testimony, as opposed to in deposition testimony, everyone tends to be much more polite. In a trial situation or there's other things that aren't trials, but they're called final merits hearings. So they're kind of like trials in that this is the last word that's going to be said on this particular matter and then the judge or whoever it is, the arbitrator or whoever it is, is going to make a decision about you know which side, which side wins and which side loses. So in these final merits hearings, like trials and these other things, things can get really, really nasty in a way that they tend to not get in deposition.
Speaker 2:And you know, a bit earlier in my career I was kind of caught off guard by you know, because I'd done like three depositions that year but I hadn't done a final merits hearing yet. And I come in and there's a final merits hearing and all of a sudden people are being really, really nasty to me, caught me off guard a little bit, you know. But again, I'm further along in my career now. I know to kind of expect that doesn't happen all the time, but I'm kind of, I'm kind of I'm thinking, well, that that's one of the things that could happen, because we're in this, uh, file merits hearing like a trial and and under cross-examination I could, you know, be accused of all sorts of nasty stuff. Uh, you know, sometimes it's everything short of causing causing the the breakup of the Beatles.
Speaker 1:You know speaking of getting impeached on the stand and you know dealing in some, dealing with some of these very contentious, difficult situations. How do you keep your calm and cool and and stay collected during all of this? What sorts of of skills should newer experts be developing to be able to take a step back, take a breath and be able to manage through the situation?
Speaker 2:Okay. So the first skill you need to develop is to remember to take a step back and to take a breath, because if you remember to take a step back and to take a breath, I think 90% of the problems you could potentially run into are going to be avoided. I have given testimony where, in the heat of the moment, I forgot to take a step back and to take a breath. And you know, like 10 minutes, 10 minutes later, the lawyer on my side uh, asked for a five minute recess and then he said hey, phil, you've forgotten to take a step back and take a breath. And I stopped and thought about it. I thought oh, yeah, I guess I did. Sorry about, about that, I'll try to do better. Um, moving forward, yeah, so taking a step back and taking a breath, um is is really important. Um, uh, yeah. And then I mean, sometimes you get kind of conflicting advice as well.
Speaker 2:This doesn't happen very often, but it does happen sometimes. It's like Phil, take a step back, take a breath, speak slowly, speak deliberately. But, by the way, you've got to be done with your cross-examination by the end of the day. I'm like well, you know if you're going to ask me where I'm going to go slow. You're like telling me two things at once, right? So there's stuff like that can happen too Sure.
Speaker 1:Early in our discussion you had mentioned Roundtable Group. How has it been working with uh expert witness referral services? Has that been something that's been uh?
Speaker 2:valuable in your expert witness career. It's, uh, it's, it's been of some value, and I I like having, uh, the roundtable group reach out to me from time to time with potential cases, and they're not they're not the only type of expert search firm that I work with. There's a couple of others that I work with too. Um, though I I get business through that route, but I I've got to be frank with you I get a minority of my business through through those routes. The majority of it kind of comes straight from my own kind of direct marketing. I've got a, I've got a website that isn't particularly slick but I think it's informative. I think people that are potential clients of mine can go there and they can kind of see the type of expert I am pretty quickly and decide if they want to work with me. And so I have other kind of marketing strategies that I adopt that I think help as well. I mean, again, I've been running my own firm for about five years.
Speaker 2:One of the mistakes I made in the first couple of years was to not spend enough on marketing, because marketing, especially if you come from a long history of working for somebody else and you get paid a salary and you don't have to worry about all these other kind of high-end business decisions. Marketing's kind of a tough one. There's this, there's this saying which is, I think, is absolutely true 50 of your marketing budget is well spent and 50 of it you may as well just flush it down the toilet. But the problem is you don't know which 50 is which 50, and that's, that's exactly right. And so, um, I think, when I first started my business five years ago, I really I wanted to kind of complete confirmation that spending you know a thousand dollars on this or $2,000 on that was going to give me some bang for my buck.
Speaker 2:And as a result of thinking that way, I just didn't spend enough on marketing, because you never in my experience, you're just never going to know if you're going to get bang for your buck. You just got to, you just got to roll the dice and part of it is part of it is uh, part of it is uh kind of just rolling the dice and seeing what happens. So I think I've learned to like keep my marketing budget a bit higher now. I think I'd say every year now it's probably between five thousand and ten thousand dollars. It varies from year to year, but yeah, I think most years it wouldn't be below five thousand and also not above ten thousand would be my marketing budget.
Speaker 1:Yeah, let's talk about the general a little bit. How do you get off on the right foot in a new engagement? How do you know it's going to be a good engagement? What should the expert be doing and what should the attorney be doing to ensure that it's going to be effective and efficient and maybe even a little bit of fun?
Speaker 2:an earlier answer I gave that there are lots of lawyers I work with I like, but they can have very contrasting styles. So if I'm working with a new lawyer, it's really important to me to try to figure out, to the to the extent that I can, what sort of a style this lawyer is. Is he more of a hands-on wants to walk me through everything sort of lawyer, or is he more of a hands-off one? Because, because both styles could work very, very well, but I try to get up to speed with the type of lawyer that I'm working with sooner rather than later. And then the other thing is, I often work on cases where I'm not the only expert. There can be other experts as well, and so in that case it's really important for me to kind of get an understanding of the role of the different experts in this particular engagement, because I really don't want to vary outside of my lane and be stepping on the toes of somebody else, and so that's important to try to get a handle on too. And then other things that are important. I talked a little bit about this before as well. It's, like you know, because I run my own one-man shop and I'm not really competing with these big downtown DC shops that charge top dollar. I mean, I really do attract a client base that's somewhat price sensitive, and so I'm just very cognizant of that, and so I just try to make sure that the client is on the same page as me.
Speaker 2:As to you know the next bills. You know I'm going to give you a bill at the end of the month. Just so you know, this is what the next bills. You know I'm going to give you a bill at the end of the month. Just so you know, this is what you should be expecting as kind of the bill to be. And then, and oftentimes, I'll give a, I'll give an estimate for how much it'll cost to like prepare an expert report.
Speaker 2:And then you know there's a, there's a wrench in the works and things change a little bit. And at that, and things change a little bit, and at that point I'll say to the client look, I think I wasn't anticipating this, but it's come up. I really think it's beneficial if I go and do this other little bit of work that wasn't in the original scope of my work, but I just wanted to give you a heads up because it is going to change what I think the total billings are going to be. And sometimes I'll say, yep, phil, we're fine with that. And sometimes I say actually, phil, no, we really need you to try to stick to what you told us. You think you're going to be billing us. So again, you've got to be respective of the client's wishes in that dimension as well.
Speaker 1:That's interesting. You speak about the client. Do you often interface directly with the client without the attorney present, or is the attorney typically present? Or when you say client, do you actually mean the engaging attorney?
Speaker 2:okay. So that's that. That's a good question. When I'd say client, I typically I'm referring to the engaging attorney. Most of the time I just deal with the attorneys. I occasionally deal with the client as well.
Speaker 2:Uh, I've told you some attorneys that I work with. I kind of don't like their style. One of the styles I don't like is some is someone who, like pulls the actual client in and kind of gives them almost a seat at the table. That's, that's makes it hard for me to do my job as a reliable expert and someone who can opine about things with integrity. Um, so I mean, there can be from time to time the need to kind of uh, learn something from the client. And you know, if it's not, if it's easier for me to talk directly to the not directly to the client, to have a conference call with the client and the lawyer and myself, if that's the best way to figure out what I need to know, that's fine.
Speaker 2:Uh, but I think most of the most of the time I can say to the lawyer look, I need to know this about the client, and then the lawyer can go to the client, and so I, you know, my preferred situation is one where I never directly even meet the end client at all. That doesn't happen all the time, Uh, but it but it probably happens most of the time. And if it doesn't happen, you know, I just don't want things getting to the point where the the, the lawyer, is just like involving the client kind of too much, which I think you know does happen from time to time, unfortunately.
Speaker 1:Do you have any tentpole cases that you can talk about? Obviously, you might not be able to give any of the specific names or whatever, but that either change something about the way you go about expert witnessing or reinforce something that you were already doing. What are the important moments as an expert witness that you've had throughout your career?
Speaker 2:I don't know if I've got any tent pole cases. I think it's been. I mean, I think I'm a much better expert witness now than I was, you know, like five years ago or 10 years ago. I'm not kind of thinking of a eureka moment necessarily where, you know, everything fell into place. I think it's more my improvements. I think it's more incremental, like important.
Speaker 2:Like you know, with each passing year I work on more and different types of engagements. I learn more and more, you know. So I mean, again, lawyers some lawyers I've worked with are really frigging smart lawyers and it's like I, I'm like, wow, it's so. I, I learn a lot about how litigation works from these very, very smart lawyers and I and I also learn a lot about, well, this is a person who's like at the very top of their career and what they're doing and it's like inspires me, to try to kind of, even though I'm not a lawyer, I'm in a different line of business but still this person is just like very impressive, knows, knows what they're talking about and I can see why they're a very successful lawyer, right, and I think you know if I can kind of channel that more in my, in what I do, in being an expert witness. So yeah, maybe one day I'll end up, you know, in the in the same position.
Speaker 1:So yeah, Before we wrap up, do you have any final advice for expert witnesses or attorneys that are working with experts?
Speaker 2:Okay, if you. Okay, if you're an attorney and you're working with an expert, don't micromanage the expert. And if you're a plaintiff side attorney, try to maintain arm's length between the plaintiff and the expert. And if you're an expert starting out particularly if you're going it alone with your own business just take billing seriously. Try to give the client or the retaining attorney a very good sense of what you think the billing is going to end up being. And another thing is if you can find good junior staff.
Speaker 2:As I mentioned before, I've got these guys. I've got these students, super smart guys who work for me on a contract basis. They're a contract basis. They're a godsend. So if you can find people like that, just find them and treat them well so that you can keep them for a year or two. Although I had this one guy, he's about to graduate with an MBA and so he'll probably be off doing a real job and he won't want to work for me anymore. But until the very last day that he's going to be off doing that, I'm going to try to get him to help me, because he's fantastic.
Speaker 1:Outstanding and sage advice. Dr Cross, thank you so much for joining me here today. It's been a pleasure, noah, and thank you, as always, to our listeners for joining us for another edition of Engaging Experts Cheers. Thank you for listening to our podcast Engaging Experts. Our show notes are available on our website, roundhumorgroupcom.