On Expert Witnesses and the Man Known as Pablo Picaretti

Over the past 13 years, I have hired a number of expert witnesses. Experts of all different types, fields, disciplines. And you know what? There are a lot of folks out there doing expert witness work who are really bad at it.

I'll give you an example from the way-back machine. Many years ago, I hired an expert to opine on the appropriate standards and practices involved in certain financial transactions.

This guy was a big shot. He was at least 60 years old and had been in the industry forever. He had testified as an expert witness before -- and even made it past a Daubert challenge at least once. So I thought, "Ok. I have retained a suitable expert. This guy is a pro. He'll get it done."

Boy, was I ever wrong. We paid the guy his fee. He slapped together a generic expert report that largely consisted of his background and CV (copied and pasted, of course) .... followed by maybe a page or two of generic analysis. Then the other side took his deposition.

And he. Got. Cooked.

I mean it was a massacre.

We walked out of the deposition and once we got out of earshot from opposing counsel, I was basically like, "What the fuck was that?" And he stammered and stuttered and had no good answer.

But the answer was obvious. He didn't really care. He didn't really prepare. He got paid whatever he got paid and he kept it moving. He ultimately said, "I just had an off day. It happens sometimes." And that was that.

Over the years, I have encountered so many experts - both consulting and testifying - who were atrocious.

And, for the record, I have served as an expert witness. In multiple cases. In cases with $15+ million on the line. As an expert witness on legal malpractice or the professional standard of care for lawyers in a certain case. Or an expert witness on American law (non-compete law; certain aspects of antitrust and competition law) in foreign arbitration proceedings. Heady shit.

I've been deposed.

They took my deposition in that massive, legal malpractice case. Ladies and gentlemen, I can assure you that I am the last person you ever want to depose if I'm the expert. You can't cook me. I'm the chef.

But so many so-called experts pee their pants and get cooked. So many so-called experts don't have the goods and can't deliver.

I've been in many cases where I've basically thought to myself: Dude, if I could put on a disguise and create a fake identity for myself, I could be my own expert witness and knock it out of the park.

In our family, we play a lot of make believe and make up a lot of characters with really funny names. One of my son's go-to fake characters: Pablo Picaretti Pizza. Now, in the make believe, Pablo Picaretti Pizza typically shows up as a restauranteur (naturally).

But I'm rather fond of the name and the character. I'd just knock off the Pizza and call myself Pablo Picaretti. And I fairly look the part, what with my dastardly mustache and all. I would hold myself out as an expert witness on a variety of topics where I am (a) clearly qualified to opine or (b) way better at the gig than 80% of the folks doing expert witness work these days.

See, the problem is that I can't be the lawyer and my own expert witness. Oh, but if I could! Actually -- I mean if Pablo Picaretti could. Clearly, I could handle anything in my broader wheelhouse. Legal malpractice. Various aspects of American law. HR. Various institutional investigations. Sure, all of that is obvious.

But I'd take it further. I could mess with damages and lost profits. Business valuation. That sort of thing. I mean, after all: I was the Vice President of Mu Alpha Theta in high school. I took a couple statistics classes at Cornell. I've owned and run a business for years. Not a big business. But a small business that involves a couple million in and out the door every year. And I've litigated hundreds of cases where business valuation and profits were at issue.

I could fake up a CV. And write expert reports that were phenomenal. The other side would depose me and I'd wear a disguise. Maybe a wig and a bowtie. And I would have good answers for every question. I'd run circles around the lawyer taking the deposition (as I have done before). Courts would let me in over Daubert challenges every single time. They'd say, "Mr. Picaretti's deposition testimony clearly establishes that he is an expert and qualified to opine on [whatever random topic]."

But somebody would eventually out me. It would be hilarious. Great sport for a loon like me (mocking the form over substance nature of the legal system). My magnum opus. But then they'd disbar me. I'd go run a litigation hedge fund, write a tell all book about my career in law, and accept one of the many offers I've received to do a TV show or a documentary. But I would despise the fame, just like Bourdain did. I'd miss my ability to disappear into crowds in big cities and small towns alike. I'd miss being an under-the-radar and obscure renegade known only to a relative handful.

But a man can dream and laugh.

JP / PP