Expert Witness War Stories

Episode Notes

Transcript

Jim Reeder:
Hello everyone, and welcome to Litigation Radio. Stay tuned for an insightful look into the often challenging process of finding just the right expert. Today, we’ll be talking to one of the country’s most experienced expert finders, Bryce David, with The Roundtable Group. Additionally, you’re going to want to stay with us as we also bring you a quick tip from Lauren Williams, who talks to us today about how to slow down and enjoy the summer. But first, I’m your host, Jim Reeder. I was a litigator for 40 years in Houston, Texas. I just retired from a practice focused on antitrust and commercial litigation in the Houston office of Jones Day. I love trying lawsuits, but I also love teaching and mentoring, and I’ve spent my entire career focused on helping young lawyers become great lawyers. On this show, we talk to the country’s top litigators, judges, in-house counsel and academics, anyone who has good ideas about topics that interest litigators, including best practices for developing your career, winning cases, getting more clients, and building a sustainable practice, with particular emphasis on doing all that while staying well and happy.
Be sure to subscribe to the podcast on your favorite podcasting app to make sure you never miss an episode. Litigation radio is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the ABA, and I’m a huge proponent of the litigation section. This podcast is just one example of the dozens of resources the litigation section provides to litigators of all practice areas to help them become successful trial lawyers for their clients. Learn more and become a member at ambar.org/litigation. So let’s get after it. Our guest today is Bryce David. He’s the senior manager of expert witness services at the Roundtable Group. Bryce has 15 years of experience working in the expert witness recruiting field. Before joining the Roundtable Group, he managed the East Coast operations for Silicon Valley Expert Witness Group, which was later acquired by Thompson Reuters.
Bryce’s professional experience in high technology spans 20 years. His work in this field has evolved from the design of networks and infrastructure planning to managing engineering consulting groups and technical consulting practices. Bryce graduated from Tulane University with a BD in electrical engineering in 1995, and he went on to earn his master’s of business administration from the University of Maryland University College in 2014. Welcome, Bryce.

Brice David:
Well, thank you very much for having me, Jim.

Jim Reeder:
Yep. Glad you’re here. All right. So let’s turn to our topic, the importance of finding the right expert. Over 40 years of practice, I’ve hired a lot of experts. Usually, they turned out great. Sometimes they turned out okay, but a couple of times at least they were just awful. In one case, I can remember we spent months just trying to find anyone who could speak knowledgeably about the topic. It shouldn’t have been that hard really because they were a rebuttal expert. So obviously the plaintiffs had already found somebody who was experienced. So it’s just a matter of trying to unearth who would be the person with the best experience in response. And we finally found someone, not unusual. He was an assistant professor at a small Midwestern college, and he said all the right things in the interview. And he had never testified before, but he seemed sharp.
We worked with him. He had a tendency to fall in love with his own analogies, which I’m sure you’ve seen before. And then he’d used those things to death and you had to sort of reign him in. His report ended up fine. His deposition was fine once we got him to stop volunteering. Then we actually went to trial on the stand after I had innocently and unknowingly asked about a subject that really was only tangentially related to the opinion. The opposing counsel got up, who happens to be a good guy, a guy that I’ve known, a friend. And on recross, he brought out something we should have known about, but didn’t. Our expert had been convicted of passing some bad checks a decade ago. And this was a financial expert, right? And we were floored, obviously. And this should have been something we would have been able to head off at the past if we’d known about it, but we also might have avoided that trauma if we’d not tried to find the expert on our own.
These days, I always engage others to help me find the right expert. It’s so much easier and frankly, so much more successful. So first off, Bryce David, round table group, get us started by just giving us a little thumbnail of your career.

Brice David:
Sure. So as you said, when I graduated from Tulane with my electrical engineering degree, it was in the last century, so 1995. And this was a very big time in the rebuilding of networks. Everything was going to be in two directions, cell phones, cable, fiber, everything was going to be in two directions because it was the birth of the internet at the end of the day. And that was great. And then eventually, as we all know, the bubble burst. And I got into consulting more on the management consulting side, but obviously there was a lot of things going on with telecom at that time. And then out of the blue, one day, a couple people called me and said, “Hey, we have this patent and we just don’t know if it’s worth anything.” And so I said, “Sure, we’ll be happy to take a look.” And so that was my first foray into the expert witness world.
As a consulting expert, there was no deposition or anything. We just did an analysis. And then we were a bit of a weird consulting group in that we did a lot of industry practices and industry financing for cable and wireless and all that. So basically how much it would cost you to build out stuff. We had a lot of financial analysis that we did and we’d publish these every year. So then I also got called for, “Hey, here’s what we’re getting in terms of damages. Does this make sense?” So that was my foray into the financial thing. And again, purely consulting. So that’s kind of how I got into it. And then one day, the nice folks at Silicon Valley Expert Witness Group called me and said, “We’d like to start a DC office.” We’d worked together on two little matters. And that’s kind of how I fell into this kind of business.

Jim Reeder:
The story is not a terribly unusual sort of path, right? Exactly. And the reason I love to talk about the career path of our guest is because I think it gives comfort actually to particularly younger lawyers who need to realize that the career path can take a lot of different turns as a result of things that you can’t control or foresee. And oftentimes we do see people who are smart and they’ve developed expertise and the industry changes and they make a move and they may go into consulting and then they find something else. And so Bryce David is a good example of that.

Brice David:
Yeah. Just you have to go with the times. And opportunities, I’ve always said this, opportunities. It’s a bit like expert work, by the way, searching, funny enough. Opportunities will fall into your lap. They might not make sense right away, but I’m a big believer in looking into them because you never know what’s on the other side. Doesn’t mean you have

Jim Reeder:
To jump. Yeah. No, that’s exactly our philosophy is be open to something. The big idea, be open to the change, be open to something new. If you’re just open to it, then something will fall in your lap and you can take advantage of it. So you transitioned from obviously technical expertise into this area, which is different. It’s not necessarily technical expertise. You might actually be able to use that. But what are the sort of skills, if you will, that you had to reach in and either develop or find in order to make that transition from being a sort of technical person into being a person? And it’s really kind of very much a people kind of business recruitment.

Brice David:
The engineer that can talk to people basically, which is not that unusual actually. It’s a rare beast, apparently I’ve been told. No. I got involved in this because we started getting more and more involved in the SEC, the IRS and getting these cases. And I think it really, in a funny way, there was an assumption that, hey, he’s an engineer, he can do math. So we’re just going to give it to him because this is all accounting. So I didn’t actually know all that much about it. I mean, I had an investment account and that’s probably the extent of what I’d really done at that point. So no, I had to learn about everything from tax court to. It was very varied and it was all over the place from broker-dealer cases. I had no idea what a broker-dealer relationship was. So all that kind of stuff you had to learn.
And it’s actually been really interesting. Well,

Jim Reeder:
And we’re going to get into the nuts and the bolts here because you talk about the things that you have to learn in order to do this well. It’s not just obviously going through rosters or going through the faculty list of a department at some university. It’s much more than that. So let’s get into the nuts and bolts of this. Client contacts you. What do you need to know in order to help them?

Brice David:
Right. So I mean, obviously we’re not lawyers, but we do have conflicts. Same as you. So the first things we need to know are basically the questions that the expert are going to want to know. Who are the parties? What’s the complaint? What are we fighting over? What’s the schedule? The nuts and bolts of this. Now, in terms of the law firms, we then ask for additional information. Is there anybody we should not contact? Either you’ve done some research yourself or you know who the experts on the other side are, or I just hate this guy. I don’t want him ever working for me ever again. I don’t need a reason, but we need to determine kind of what our universe is. And then we also need to get a clear understanding of what we can share with the experts. And this is a thing that I think lawyers sometimes don’t recognize that the more you can give them public, we’re not asking for anything private or confidential, but the more you can explain to them what it’s about, the more interest you’re going to get.
So the more options you’re going to have. If you’re secretive, a lot of experts, especially experienced experts will say, you know what? When they want to disclose parties, when they have a schedule, when they know what they’re doing, give me a call and we’ll go from there. And so that’s a thing too. But some of this stuff is secret and you can’t disclose it. So that’s part of the conversation we have to have with you.

Jim Reeder:
And actually it can cause huge problems. I mean, because if you disclose something, then all of a sudden you’ve eliminated that expert. You may even have an issue with the lawyers as well, ultimately, if things are revealed. But obviously, so you get all that information. You then obviously want to know what the case is about, what are the issues, how the things work.

Brice David:
And what is it you’re looking for? Because again, just because you have, and I’m making stuff up here, right? You have a tax court case. It doesn’t mean you need a general tax expert. You need somebody very specific. So in some cases, it’s not even a tax person. It might be a completely different expertise. But whatever it is, you’re fighting about something very specific. You’re not fighting in generalities. So our job is to find the person that has experience in that very specific thing.

Jim Reeder:
Right. And sometimes I take it, if you learn enough about the case, if you learn enough about the issues, if you learn enough about in technical cases, how the thing works, sometimes you probably don’t just rely upon the lawyer telling you, okay, this is what I’m looking for. Instead, you may very well hear all that and say, oh, well, maybe you should be looking for this too.

Brice David:
Yeah. And sometimes they don’t listen to that. So you do it anyway. Sometimes you’re right and sometimes you’re wrong. Usually we don’t find out how right or wrong we were until the first interview. So when they interview their first expert, you see how that conversation. Because at that point, you’re going to get into the details. You’re going to get into the issues. They’re going to have to talk to the expert about it. And a lot of times too, at that point, which is usually a few weeks down the road, they have a better handle on their issues as well. Not everybody’s brought into a case months before. Sometimes you’re pulled in a day or two before or a week before. You not necessarily have all the nuances, but you need to move this thing along. I always make them explain to me what it is they’re looking for.
Because if you can’t explain it to me, there’s no way you’re going to explain it to an expert that you contacted out of the blue that may or may not know us and just a recommendation of a recommendation. And you’re not going to have the right questions, you’re not going to have the right answers. It’s not going to click. Same thing on the IP side. If you can’t explain to me what the patent is or what you’re looking for in terms of expertise, then you don’t understand what you’re looking for. And it’s really hard to find people if you don’t know what you’re looking for. So we’re not experts. The analogy of we don’t have to be a mile deep and an inch wide. We have to be a mile wide and an inch deep. I just have to be smart enough to determine if you’re a good fit or not.
I don’t have to do the whole case.

Jim Reeder:
So you’re different from the expert has to be a mile deep and an inch wide. You’re in the process of finding the expert. I love that. You’re a mile wide and an inch deep. The example that I gave early on about the case that I had, where we had that difficulty in finding somebody, you obviously, part of learning about the case, how things work, and hopefully the lawyer being able to explain it to you enables you to, again, get out of that narrow focus where the lawyer may be and to say, “Oh, well, have you though about this? This is an analogous field or an analogous situation.” You’ve got to be able to sort of look outside the box for that.

Brice David:
Yeah. I mean, and you have to have that conversation. You have to understand what the issue, what the question is. It’s a question, right? What is the question we’re trying to answer at the end of the day? It’s always, there is a central question that we need to answer. And that comes with a certain amount of expertise. You need to have to answer that question. And who has that expertise? What happens sometimes is, like you said, the lawyer will say something and the expert will say like, “This doesn’t make sense.” What is that about this? What about that? And what about this? So what I do then is I take those three questions the expert sent me and said, “Hey, we found somebody, but they’re a little bit confused. What about this? What about that? And what about this?” And usually that forces the attorney to answer and then we have a clarity again.

Jim Reeder:
So the client calls, you’ve learned about the case, you’ve gotten the issues from the clients. What else are the elements that you need to know?

Brice David:
Well, the timing, obviously. And then what is it that’s going to happen? The venue, where is it going to be? Are there restrictions on, is it going to be travel? Again, you want to serve the client too at the end of the day, not just the attorney. They have a client too on the back end. So giving them only experts in California if the case is in New York, it’s not necessarily bad, but it’s probably not ideal. And maybe there’s somebody in New York that’s a bit closer, a bit better. Same thing with, not all big cases are in big cities. Some of them are in smaller cities. Do they really need a DC Boston expert that’s going to be three times the price of somebody local? You have to weigh those things because that’s also say part of their decision process. So it’s

Lauren Williams:
Hard

Brice David:
To get that information in terms of they’re not going to tell you specifically my budget is X, but we have a handle on how much this should take in terms of time. And then you adjust based on what you think the case is in need of.

Jim Reeder:
Yeah. And obviously, so I practiced all over, but was headquartered in Houston, plenty of Texas juries. And they can be suspicious of somebody from out of town. They also, some of them are suspicious of academics. So you’ve got to really, is it an academic? Is a practitioner? Always wondered also about have they testified a thousand times or a professional testifier versus not a professional testifier? There are pros and cons for both of those. And obviously the lawyer, the more experienced the lawyer is, the better sense she has of how important those things are on the scale of things, right?

Brice David:
And also where you are, like you said, Texas. So Texas is well known. Don’t give me a New York expert. Just don’t give me something with a New York accent. It’s not going to work. They’re not going to relate to it. It’s just that’s a no-no. But I mean, that’s kind of the South too, to a certain extent. Georgia actually has quite a few financial cases for certain things. Don’t give them a Florida expert. They think Florida people just are not credible. So that’s just the thing. Is it true? Is it not? I don’t know, but that’s what I’m told.

Jim Reeder:
How about that? I did not know that.

Brice David:
There’s some weird stuff like that. There’s some weird stuff like that. And then the testimony thing. I think the deposition is really always the key thing. It’s not so much that. I mean, some do, but as a general rule, I find that attorneys are not that concerned about court testimony or panels or hearings in front of judges. That’s not really the concern. Depositions are the concern. And they really do prefer people who have had a few of those under their belt. That’s usually a general rule, I think.

Jim Reeder:
And that’s a good place for us to probably take a break. We’ll be back shortly with our guest, Bryce David of The Roundtable Group, as we talk about some examples of how finding just the right expert can save the day. And remember to stay tuned for our quick tip from Lauren Williams on how to slow down and enjoy the summer. But now a quick word from our sponsors. We’re back with our guest, Bryce David, the senior manager of expert services at the Roundtable Group. All right. So Bryce, give us an example of one of the most difficult expert recruitment assignments you’ve ever undertaken.

Brice David:
So it was actually for a financial case. It was a tax case, but it had nothing to do with numbers. So large jewelry, we can call them that, large jewelry studios, the famous ones, Tiffany, Cartier, Bulgaria, all those people usually have museums where they try to recoup some of their historical designs. Some of them are whole collections. Some of them are individual pieces. And what they do is they interface, this is something I learned. They interface with jewelers that they know. And these guys are basically not tasked, but if they run across something in a collection that meets the requirement and they can get it, they’re authorized to buy it. And then Tiffany puts it in their museum. Carchet puts it in their museum, whoever puts it in their museum. And that becomes their property. And there’s tax associated. There’s tax stuff associated with that.
So they had this relationship with this gentleman, this big design house. And he’d been doing this worldwide for them for decades. He had recently found three of these kind of collection things that they were really, really looking for and everybody was happy. And he did that and they did their tax stuff. And the next year he got his hands on one more and he turned it in and they did their tax stuff. And then they said, “Well, actually, holy cow, these are all fake.”
And the guy’s like, “What do you mean they’re fake? They were bought at auction.” And this is a big auction house, right? Worldwide big auction houses. A big dispute. And they’re like, “Okay, we need to find somebody to authenticate this, whether or not it’s fake or not.” Now you have to recognize that the studio that produced it had said it’s a fake. Not the IRS had said it as a fake. Ford said, “This is not our car.”
So that was the tax we had to do. And we found a gentleman in Pennsylvania who’s fantastic and I can’t praise him enough, who ultimately found a record of a special gold mix that they used in this thing in the original order form in the middle of nowhere. Anyway, he was able to prove that this thing was actually done under contract for them, received and all that kind of stuff. But again, we could have just found the guy that would never found that too, right? But that was probably the weirdest, not the funniest, but the weirdest, most difficult one we had. And it took us months. It was completely different than most of the things we do and it was kind of cool.

Jim Reeder:
So do you get an opportunity to hear how the expert you found actually performed in a matter? So you’re on the front end and you’re busy on the front end and you’re constantly obviously focused on that. But do you sometimes, I don’t know, get a call from somebody or somehow become aware of how that expert performed?

Brice David:
Silence is usually a good sign. If we have an expert that runs into a problem, but 18 people before said he was awesome, that’s different than the guy who’s never got feedback or the lady that’s never got feedback. And now somebody says something bad about them. So yeah, we do. But the problems usually are not like the people are not qualified. The problems are usually like, I can’t reach him. He’s hard to get in touch with. It’s a communication issue. It’s like, Bryce, they just sent me 18 bank boxes. What do I do with this?That kind of stuff out of the blue. So there is a communication, I think, element of managing experts and managing expectations on both sides of that equation. That doesn’t always get done particularly well. And if it did, you would avoid, I think, a lot of problems.

Jim Reeder:
Well, that’s a great, great observation and one that maybe we take on separately because it rings a bell with me. Because you have deadlines, you need to stay on top of your expert or your expert needs to make sure that they’re getting the information they need the way they need it. Because I just have had way too many 11 o’clock still waiting on the expert’s signature on the opinion to actually have an enjoyable night.

Brice David:
And they would say getting 10 band boxes on Friday for a Monday report is probably not ideal.

Jim Reeder:
No, no. I hear you. So I love the jewelry example. Any other instance where you were particularly proud of having found someone who ended up performing beyond expectation or saving the day?

Brice David:
This was actually a funny one. This was an IP case involving gaming. A game, a programming of games. And they needed a person who had actually done game program, managing game development. This was a big game. And we found this gentleman and on camera, he looked like a gamer. He had a little bit hunger. He had my scruffy beard. He was wearing a t-shirt and he was ready to work and he knew his stuff. Apparently it went fantastically through the whole process. This was one of them that ended up going to court in Texas. We were talking about Texas earlier. And I don’t know if you’re familiar with Marshall and Taylor, but basically you have the courthouse, you have the square, and you have a hotel across the square that’s basically for the courthouse and for these cases.

Jim Reeder:
I grew up in Shreveport, Louisiana.

Brice David:
So there’s not a lot of time between the hotel in the morning and the court that day. And so the attorney, when they kind of organized the trip, because you have to pay for the travel and all that kind of stuff, and we kind of helped facilitate all that, kept asking the expert, “You have a suit?” Of course I got a suit. “All right. Don’t forget your suit. “The attorney was really focused on the suit. The suit was really at that point became clear. And we had a few conversations about suits. They get to Texas, they spend the night, they do their thing. Next morning, quarter before nine, they have to be in court or whatever the time was. Then comes the expert wearing a replendesment orange suit.

Jim Reeder:
Right out of my Uncle Vinny, yes.

Brice David:
But like orange. Apparently he’s like, it bordered on fluorescent. So there’s nothing they can do. They go to court. The guy does his testimony. They actually do well in the case. But after the case, there’s the, “Hey, let’s talk to the jury.” So this guy’s partner in the case. First question to the jury is, “What’d you think of the guy in the orange suit? Did the suit bother you?” And every of the panels said, “No, he’s a programmer, a gamer. That totally made sense.” So that gave him credibility, in fact, in their eyes that the fact he looked like a schlub was like, “Yeah, dude, that’s what we expect out of an expert in like that.”

Jim Reeder:
I love that example as well because we often do, lawyers often focus on the wrong things. And we actually see this obviously now that we can have. There’s TV cameras in courtrooms, et cetera. How uneasy some people look in particularly clothes or a haircut or whatever that’s not themselves. And it can affect credibility. Anyway, fascinating stuff. Bryce, David, thank you so much. I obviously wish that I had used somebody like you. I was looking for that particular – I wish so

Brice David:
Too.

Jim Reeder:
Yeah. Well, we can’t go back in time. And it does make a good story, which at this point in my life, I actually take considerable value associated with just the stories of life. But anyway, Bryce, please feel free to come back anytime to share new stories with us. Thank you.

Brice David:
Thank you very much for having me. It was lovely.

Jim Reeder:
And now it’s time for a quick tip from the ABA litigation section. I’m pleased to welcome back Lauren Williams. Lauren practices corporate law at Morgan Stanley in Columbia, South Carolina. Welcome, Lauren. What’s your quick tip?

Lauren Williams:
We are going to talk about summer slowdowns and learning to actually take the vacation. Now that summer is here, I want to talk about something young lawyers are honestly not always great at, and that is slowing down. Because somewhere along the way, many of us in this profession start believing that being constantly exhausted is the same thing as being successful, and it’s not. Summer has a different rhythm. People are traveling, court schedules shift, families are on vacation, kids are out of school. Even the energy in the office changes a little bit. And I think summer can actually be a really important reminder that your entire identity does not have to revolve around being busy every second of the day. Now, I’m going to be clear, litigation deadlines still exists in the summer. Opposing counsel will absolutely email you at 4:45 PM on a Friday before a holiday weekend trying to just ruin your peace.
That part’s just not going to change. But summer is also a good time for young lawyers to reassess balance, boundaries, and sustainability because if you never slow down, eventually your body will slow you down for you. And trust me, burnout has terrible timing. It comes at the most inconvenient time. It’ll hit right before a hearing, during trial prep, or while you’re trying to do any type of redactions in the middle of the night, wondering how you got here. I think one of the biggest struggles for young lawyers is guilt around rest. People feel guilty taking vacation, guilty logging off, guilty for not responding to emails immediately. Meanwhile, half the people you’re scared to disappoint are literally on a boat somewhere not checking their inbox. And honestly, good for them. And I’m not saying ignore your responsibilities. I’m saying you deserve to be a person outside of your profession.
Take the trip, go outside, spend time with your family, rest your mind, read something that is not a motion, please. And let me say something else that’s very important. Vacation is not the same thing as secretly working remotely from another location. If you are on vacation, but still answering emails every six minutes from a beach chair, that is not rest. That is outlook with ocean views and real rest matters because some of your best thinking, creativity and clarity actually happens when your brain finally gets a chance to breathe. And professionally, summer also can be a great relationship building season. Grab coffee with a mentor, reconnect with colleagues, attend networking events. Check in with some of your law school friends. Not every professional opportunity has to come from grinding yourself into exhaustion. Sometimes opportunities come from simply being present, engaged, and connected to people. I also think that summer is a good reminder that life is happening right now and not eventually.
The legal profession can make people feel like joy has to constantly be postponed. I’ll rest after this trial or I’m going to travel after I make partner or I’ll spend time with my family after this next deadline. And then next thing you know, years have passed. Now success is important, ambition is important, but your life matters too. So if you’re listening to this and you’re realizing you haven’t taken a real break in a long time, let this be a sign to step away for a moment if you can. The work will still be there because respectfully, there’s always going to be another email, another trial, another client meeting, another deposition always. The inbox renews itself all of the time, but your peace, your health, your relationships, and your joy deserve attention too. So this summer, I encourage young lawyers and all lawyers to stop treating rest like a reward and start treating it like part of your long-term success.
The goal is for you to build a career, but also build a life you actually get to enjoy while you’re living it.

Jim Reeder:
Thanks, Lauren, for another great quick tip and our special thanks to our guest, Bryce David, Senior Manager of Expert Witness Services at The Roundtable Group. And we want to thank the litigation section premier sponsor Roundtable Group for sponsoring this podcast. Roundtable Group is an expert witness search and referral service with decades of experience and a comprehensive array of academic and industry relationships, as well as access to proprietary tools that further enhance the expert search capabilities of attorney with no upfront fees. You only pay if you retain an expert referred by Roundtable Group. Learn more at www.roundtablegroup.com. A reminder to be sure and subscribe to Litigation Radio on your favorite podcasting app so you don’t miss our next episode. And spread the word if you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social media or invite others to join the show and community.
If you want to leave a review, you can do so over at Apple Podcasts. And even a quick rating over at Spotify Podcasts can be very helpful. Finally, I want to quickly thank some folks who make this show possible. Thanks to Michelle Oberts, who is the producer on staff with the litigation section. Thanks. Also, go out to the co-chairs of the litigation section’s audio content committee, Haley Maple and Mike Stager. Finally, thank you to the audio professionals from Legal Talk Network. Last but not least, thanks to you for listening. I’m Jim Reeder and I’ll talk to you later.