Serving as an Expert Witness

One of the most satisfying aspects of being in business is having the opportunity to mentor colleagues in the early stages of their careers. When asked, I've often offered the observation that life is about experiences, and careers are about collecting and refining skills that address important needs or solve pressing problems, or otherwise add value to society as a whole. Work teaches us those skills -- providing the sense of contribution that builds self-confidence and self-esteem -- while experience gives us the perspective necessary to see the whole of life as greater than the sum of its parts. With luck, we end up a collection of skills and experiences that one might consider wisdom.

I've tried to incorporate that world view in my own career, which has involved a journey from the practice of law, through multiple roles in wealth management, to my current business assisting individuals and families of wealth in fulfilling their fiduciary responsibilities as executors of estates and trustees of personal trusts. I've developed a deep skillset in the arcane world of personal trust and estate management -- a mix of highly technical rules and practices and the very human behaviors that come with typical intra-family dynamics and the emotions surrounding discussions of mortality and money. I've also had the time and perspective to see the forms and practices of trust and estate planning and management evolve into more flexible and effective tools for meeting intergenerational and wealth transfer goals. And I have experienced "from the inside" the many challenges of running these "fiduciary" businesses, including the difficulty of satisfying competing needs, the breakdown of fiduciary-beneficiary relationships, and the rise in fiduciary litigation and other means of dispute resolution. At the risk of seeming immodest, I consider myself a bit of an expert in the field.

I particularly enjoy serving as an expert witness on fiduciary issues in matters of litigation and alternative dispute resolution. My legal training and business background have helped me appreciate and respect the litigation process and its efficacy in raising and framing issues to be decided by judge or jury. It can be messy, time consuming and expensive, but it generally generates a resolution, either by decision or negotiated settlement. Mediation and other means of alternate dispute resolution operate similarly and can be equally effective in circumstances where litigation is either not desired or not a viable option.

In the context of litigation support, the expert role can range from simple advice on strategy to testimony in court. Lawyers generally seek out experts to help them evaluate claims and potential defenses, especially when the subject matter is unusual or technical. They look for experts who are not only deeply experienced in their field, but also who are good communicators, both verbally and in writing. The importance of this latter characteristic cannot be over-emphasized; the clearer and more accessible the communication is, the more persuasive the lawyer's argument will be. And the communication must be appropriate for the particular audience: a judge may be familiar with the nuances of the topic (don't bet on it), but a jury will likely need education. An overly technical presentation can lose the audience; an overly simplistic one will insult it.

In many if not most situations, the expert will be asked to provide analysis and potentially write a report, which may or may not be shared with opposing counsel and the court. In some instances, the expert will be expected to testify under oath in deposition or at trial. In those instances, litigation counsel place a premium on finding experts who can handle the rigors of cross-examination without becoming defensive or letting their emotions get the better of them.

Testifying in deposition and at trial are very different experiences. In deposition, opposing counsel is looking to explore and test the underlying assumptions and analysis supporting the expert's opinion, and to discover (or create) grounds for undermining the expert's credibility or prepare for a motion to have the expert and opinion dismissed entirely. Some of their favorite tactics include asking leading, open-ended and hypothetical questions, and asking basically the same question over and over again with ever-so-slightly different language in order to set the expert up for a claim of inconsistency. As a general matter, the attorney on the expert's side says very little except to enter objections (generally as to form, foundation or relevance) into the record to preserve their right to raise them again at trial. Overall, the deposition is basically a wide-ranging information-generating exercise (and sometimes a fishing expedition) for opposing counsel. Experts often fall into the trap of over-answering questions, and opposing counsel may let them talk on uninterrupted unless they feel that the answer is too long or is veering somewhere counsel does not want to go (in which case they usually object to the answer as "non-responsive"). The expert must always remember that in a deposition she or he is testifying under oath and subject to penalty for perjury as fully as if testifying in court.

Most experts will probably testify in court rarely if at all. In court, the expert's role is more formal and constrained. The expert's counsel will seek to use the expert's answers to flesh out and/or support the legal argument being advanced. The expert should answer counsel's questions truthfully and completely, avoiding rambling answers or going beyond the scope of the question asked. Opposing counsel will then have the chance to cross-examine the expert, seeking to discredit his or her testimony. Once again, the expert should answer counsel's questions truthfully and completely, and should resist the tendency to over-explain or step beyond the question asked, even if the expert is concerned that a fact or point important in their view may not be getting across. In those instances, opposing counsel will likely object to the answer as non-responsive; if the judge sustains the objection, the expert's full answer can be stricken from the record. If the point is important, or if expert's counsel sees that the expert has more to say, counsel can simply follow up on redirect examination.

The expert's role can finish at any stage of the dispute, most often upon settlement or unappealed verdict. Unfortunately for the expert, they are not always informed of the resolution unless they have developed a close relationship with counsel. However, if they have done a good job, they may get repeat engagements.

I'm often asked about the typical level of fees charged by expert witnesses. There is no one answer to the question, as the fee appropriate for a particular situation will depend on a number of factors, including: the amount in controversy; the nature of expert advice needed (with experts in unusual or unique fields able to command the higher fees); the nature of the parties (e.g., individuals or corporate entities); the jurisdiction (federal/state court or arbitration/mediation); and common practice in the particular location or venue. Generally, expert witness fees can range from $300 to $1,000+ an hour, and may vary by type of activity (preparation work, testimony, travel). When entering into an expert witness engagement, it is critical that there be a clear understanding between the expert and the hiring lawyer/firm as to frequency of billing and advance notification if total fees begin approaching any pre-agreed limit. The purpose of this understanding is to avoid a situation where the hiring lawyer or firm gets surprised by the cost associated with the number of hours clocked by the expert -- that is a very bad situation for both counsel and the expert. Best practice is to keep the lines of communication open, and to bill for expert services on a regular basis (e.g., monthly).

One final caveat: while both professionally and financially rewarding, it can be difficult to make a sustainable business out of serving as an expert witness. The recent COVID-19 pandemic taught us all a sobering lesson in this regard by forcing the shutdown of courts throughout the country. As the courts reopen, priority will most likely be given to criminal cases and other matters of urgency. Even in normal times, there can be little predictability in the flow of expert witness business. In my mind, the best advice for those contemplating pursing the expert witness business would be to continue always to sustain and sharpen those skills that are most unique to you, and find ways to let as large a relevant audience as possible know that you are available to help address the specific issues and problems they are facing. When it works, it is of great benefit to both parties.

And so, taking my own advice (and at the risk of appearing self-promotional), here is an example of how I seek to communicate my particular skillset and experience serving as an expert witness:

Cases                 

Expert witness for the defense (PNC Bank) on fiduciary matters in the case of Jo Ann Howard & Associates, P.C., et al v. J. Douglas Cassity, et al, Case No. 4:09CV01252 ERW, US District Court, Eastern District of Missouri, Eastern District, a bench trial on remand from appeal to the Eighth Circuit of a previous nine-digit jury award.  Wrote expert report, testified in deposition for 12 hours over two days, and full day in court.  Result was a 75% reduction in damages.

Expert witness for the defense on fiduciary matters in the case of Lindie L. Banks et al v. Northern Trust Corporation, Case No. 16-cv-09141, US District Court, Central District of California.  Wrote declaration and expert report and testified in deposition.  Class certification was denied, and the case was dismissed on motion for summary judgment. 

Also served as expert witness for the defense in three New Jersey state cases involving fiduciary and investment management issues against large, institutional fiduciaries. These cases are ongoing and subject to confidentiality restrictions.

Education & Experience         

Attorney admitted to the New York State bar.  JD, Vanderbilt University School of Law.  Editor-in-Chief, Vanderbilt Journal of Transnational Law.  AB, cum laude, Dartmouth College.  Associate Attorney, Davis Polk & Wardwell, 1983-1991

Headed fiduciary management businesses for JP Morgan, Goldman Sachs and Citigroup.  Founded Goldman Sachs Trust Company, N.A.  Headed Webster Private Bank and led a regional investment and trust business for BNY Mellon.  Responsible in those roles for the prudent management and oversight of billions of dollars of assets for thousands of clients, both domestically and abroad.

Currently founder and president of Northway Wealth Advisors, LLC, an independent boutique advisory firm aiding individuals and families in the satisfaction of their fiduciary responsibilities as executors of estates, trustees of personal trusts, and directors of private foundations.  Also serve as expert witness on fiduciary matters and as mediator of disputes between fiduciaries and beneficiaries.

Professional Boards                

Past member of the Executive Committees of the Trust & Investments Division of the New York State Bankers Association, and the Trust Management Association, Inc.  Former trustee bank representative (for each of JP Morgan, Goldman Sachs & Citigroup) on the Trustee’s Committee for The New York Community Trust.

Publications        

“A tale of three families: passing on a treasured home to the next generation,” The International Family Offices Journal, December 2020 (upcoming)

“High wire act: exercising fiduciary discretion in an uncertain and increasingly litigious world,” The International Family Offices Journal, December 2019

“Up close and personal: observations on estate administration in the 21stcentury,” The International Family Offices Journal, March 2018

In conclusion, serving as an expert witness can be a fascinating experience for anyone with a sufficient degree of expertise in one or more fields subject to disputes. The role requires relevant knowledge, excellent communication skills, and the presence and emotional maturity to withstand direct and potentially relentless challenges to one's experience and credibility. For those who enjoy it, it can represent a very satisfying use of the wisdom accumulated over a lifetime.

Comments and questions welcome.

Daniel M. FitzPatrick | Northway Wealth Advisors, LLC | [email protected]