What do you wish you knew the first time you were an expert witness?
I wish I knew about how client management as an expert witness differs from client management as a computer consultant. When I started as an expert witness, my experience as a computer consultant was:
- Designing and implementing software products
- Automating business processes,
- Evaluating the work of other technologists
- Coaching startup founders
- Doing technical due diligence for potential investors
I had worked with technical people and their colleagues all over the US and Canada. Since then I have also worked in Hong Kong, southern India and Europe, and I have had clients in Oceana.
It is interesting that as an expert, the specialties of the different types of lawyers I have worked with has only somewhat overlapped the range of the non-legal work that I have done. It seems that experience in one field can map non-linearly to other fields, and that always intrigues me; different thought processes from familiar beginnings.
What do you mean by different types of lawyers?
The Yale Law School’s publication from April 2017 entitled Law Firm Practice Area Summary describes 47 types of lawyers. This 16-page document briefly describes each type of lawyer, and includes comments about common behavioral traits of each type. As an expert, I have worked with 4 types of lawyers described in that document to date:
- General Corporate
- General Litigation
I have also been approached by White-Collar Crime lawyers for two cases, and although these high-profile cases were quite intriguing, I was not selected as an expert. One lawyer described the end client as being “radioactive”. That client is currently in the news quite a bit.
As a software entrepreneur, I have also worked with 3 additional types of lawyers:
- Mergers & Acquisitions
- Cyber Security & Data Protection
- Licensing and Technology Transactions
As a semi-professional musician and founder of a musical collective, I am interested in working with lawyers who focus on Entertainment Law, but have not yet had an opportunity to do so.
Like most expert witnesses, I do not have a formal education in law, so it is probably not surprising that I found portions of the Yale publication misleading. It is not my intention to suggest the publication is incorrect, instead I believe that my understanding of the terminology may have involved false cognates. For example, the description for Litigation lawyers says:
This practice divides into patent, copyright, trademark and trade secrets. This is a very adversarial practice. The stakes are high and for technology companies this can be “bet the company” litigation. Research involves not only legal issues, but also factual issues such as the scope of the market, competitors, and competing technologies and products. These actions are generally not very document intensive. This practice is good for people who are interested in learning about new technologies, products, businesses and markets. These attorneys work with experts often. People who dislike IP litigation generally don’t like the adversarial nature of the practice or are not interested in technology.
I agree with most of the description, for example the adversarial nature of the work. While I do not mind that aspect, most technical people strongly dislike that type of work. I think that the ‘documents’ referred to in the description actually refers to the legal documents filed throughout the case. While the number of filed documents per case for this type of lawyer may be less than for some other types of lawyers, the size of these documents can be daunting.
For example, the principal challenge for one of the patent cases I have worked on as an expert was plowing through 4 long and vaguely worded patents. Together, these patents totaled about 1000 pages. They were deliberately worded to allude to almost anything and everything, while actually saying very little. I knew I was going to be asked in deposition if I had read and understood all of these documents. This was really painful to do: the only way I could get through these documents and retain anything was to spend several days standing, while reading them to myself aloud, and making a brief note of each paragraph after reading it. It was torture! I was indeed asked if I had read them early on during deposition, to which I proudly said, “Every word!” That was expensive for the client, but it was important to be able to say that with confidence, and my reports and testimony were used to successfully invalidate those patents as part of two inter-partes reviews.
As a side note, Malcolm Gladwell gave a nice keynote presentation on a closely related topic with Adam Grant at the 2017 Wharton People Analytics Conference.
Tell me about your first case
My first expert case came to me unexpectedly. The client was a venture capital investment firm, and their BigLaw attorney described my task in a well-written and succinct engagement letter. The client was concerned that a large contractor had done a poor job developing software for one of their startups. The VCs were considering litigation, and wanted to know my opinion of the quality of the software.
Before this time, 20 years ago, I did not have a good understanding of what the term “expert witness” meant. I had previously acted as a computer consultant for over 25 years, and I was familiar with the technology for the case, but my weakness was my lack of experience managing this type of assignment. I did not know about the various types of lawyers, and so did not know how to interface most effectively with the lawyer who engaged me. He was actually outside counsel, and an investment management lawyer, not a litigator. Had I known that at the time, and had I known what that meant, I like to think that I would have tried to approach the case a bit differently. A mentor would have been very helpful to me in this regard. I have since been both protégé and mentor, and I believe there is no better way to get started as an expert witness, than as a protégé of a thoughtful mentor.
This was the first time I had a three-way engagement; in this case the 3 parties were the VC firm (the end client), the law firm, and me. The startup was actually a 4th party, but as far as I could see, in retrospect, they had no say and could only provide me the information I requested and watch the process unfold. In addition, the software contractor was potentially a 5th party, and this might have become significant if litigation was pursued, but the complexities of that potential relationship never materialized.
At the time, I lacked the experience to know that my assignment would likely have a better outcome if I had simply asked to meet with the VCs at the beginning of the assignment. The VCs were the ones who needed to make the decision of what to do about their investment. I mostly spoke with the lawyer who had written the engagement letter, and interacted on technical matters directly with the startup. Naturally, lawyers want to shield their client from problems and distractions, but sometimes it is important that the root of an issue be made available to those who can address it. I focused on the task of evaluating the software and writing my report, and never spoke with anyone from the VC firm. Furthermore, my simplistic understanding was that the task was merely about things (software), as if no people were involved, and analyzing process was out of scope, which meant I did not consider the nature of the communication between the startup and the contractor. Additionally, I might have provided significantly more value if I had spent even a few hours getting to know the VCs.
I approached the task as many consulting engineers would; I examined the software, wrote a report, and worked through several versions with the lawyer. Then, without any discussion with me, the VCs acted: they decided to abandon their investment. I was shocked to learn, after the fact, that they had decided to simply shut down the startup that they had invested $3M of today’s money in. They did not litigate or negotiate. Had I known how to handle the matter better, the result might have been different. I was happy to learn, years later, that the startup somehow survived this trauma, and continues on today. This outcome did not provide the long-term value to the client that expanding the scope to include an examination of processes might have, so the question of “why did this happen, and how can we improve?” was never addressed. As a subject-matter expert, I could have provided this information quickly and easily. However, the necessary level of client management skill was beyond me at that point in my career.
By the way, Dave Zwieback wrote a good book on this topic, entitled Beyond Blame: Learning From Failure and Success.
What could you have done differently as an expert?
Presenting possibilities as questions at appropriate times can yield much value. Directly answering questions is appropriate when responding in discovery or when testifying in court. However, when dealing with a client in private, passively providing literal answers to questions posed often does not provide the most value to the client. A more experienced expert might have attempted to engage the end client in a comprehensive dialog to build up a sense of the larger context, and might have revisited the parameters of the case at opportune times with the end client. Note that some countries explicitly disallow this type of interaction; however, this was a US-based client, and I am speaking to accepted US practice.
One way to get the attorney who engaged me to suggest a meeting with the VC firm would have been to ask for clarification on certain issues face-to-face. There are subtleties involved in this type of 3-way engagement, and a good attorney acts as a strategist, rather like a quarterback in American football. The rules of engagement necessitate an arms-length interaction between the expert and the end client; so carefully documenting each interaction can be important for discovery. Having a transcription of a recording of every meeting can be helpful.
My report graded the software written for the startup by the contractor as a failure. I did not spend any time considering how to mitigate the issues that I found because I expected the client would tell me to do that if they wanted to consider mitigation. I also expected that the client would discuss the matter with me before acting; at this point in my career, I was unaware that sometimes a client might just opt to flush problems away. I suspect that internal politics within the VC firm may have used me as a pawn in some sort of negative-sum game.
Nowadays, I am more likely to proactively make a judgment call to spend an extra hour when I feel the effort is appropriate, and then I communicate that I did this with a quick call to the lawyer, along with my initial findings. I never had any pushback for spending a little extra time in this way, and the lawyers have always welcomed these unexpected results. I don’t overdo this, in fact, I take great care whenever I exercise initiative, but results matter, and occasionally taking a limited risk has allowed me to deliver significantly more value with negligible extra time and cost. The occasional unexpected victory, prudently executed, builds trust. If ever I find that I wasted time doing something that I was not asked to do, I don’t mention it and I don’t bill for it.
One of the principal points that my report highlighted was that the software was written as cut-and-paste, with lots of duplicated code. Software like that can often be optimized by refactoring the repeated parts, and this is easily automated because it is repetitive in nature. If I had engaged with my client better, and got their agreement to spend a few extra hours on the report, I could have provided an indication of the feasibility of rescuing the project. Later in my career, I lead SWAT teams to rescue high-profile software projects that were in trouble, but at this point in my career I just did what I was told, and only asked enough questions to carry out my mission according to a literal interpretation.
How has your understanding of the role of an expert changed?
Litigation could be described as a formal process of assigning blame and consequences. Frequently, litigation leads to both sides losing: losing time, losing energy, losing focus, and not adapting outdated or dysfunctional processes to ever-changing circumstances. This is of course not a universal truth because malicious behavior does exist, but my experience has been that executive ego and badly managed relationships drives a significant percentage of corporate litigation. Relationships are mutual affairs, so all parties involved share responsibility and have an opportunity to make them work better. In a very real sense, initiating litigation could be construed as a failure to negotiate solutions to issues.
In retrospect, I suspect that a principal within the end client, the VC, wanted to assign blame to an external third party, the software contractor. An impartial expert, myopically focused on tasks and things instead of also considering people and processes, was the perfect vehicle to accomplish this. I was used as a tool by an unknown client faction. It is true that the software was substandard, however the question of how this was allowed to happen was never raised and I, as the expert, did not proactively lay any groundwork for mitigation, not the least because I was unclear how I might do so appropriately.
I am not just an expert witness with expertise in technology, I am a practicing technology expert with experience as an expert witness. The fact that I was retained by outside counsel, defined the nature of my engagement, such that the value I provided was suboptimal. When I presented my findings, I could have suggested that if litigation was decided against, that my role be formally changed, from expert witness to management consultant, and that I be retained directly by the VC firm. Because I did not offer this possibility, I did not provide anywhere the near the long-term value that I might have.
This line of thinking leads to the question: what is the role of an expert? Several possible answers might be entertained, depending on circumstances. As always, the expert should be willing to change their opinion based on evidence as it arises. Thus, the goals of the expert might be considered to be a matter for ongoing discussion, at least until litigation might be initiated.
One possible answer might be that an expert should disregard politics. This would make that expert a pawn in the politics of the client. Moreover, a demonstrably politically naive expert lacks credibility, rather like a wind-up doll. In contrast, if an expert consistently attempts to understand all the forces in play, including politics, but the client denies them access to that information, fine; the expert is demonstrably not naive and therefore could be said to be credible. However, merely accepting client’s assertions at face value and not asking for evidence to support those assertions again shows the expert to be a pawn and not is therefore not credible. I have since found it very effective to inform the lawyers I am working with that my report will contain a passage detailing the documents I read, and stating the information that I was not allowed to view, and people that I was not permitted to interview. Clarity soon follows.
As a first-time expert, I never considered the politics that must have been ongoing within the VC firm, so I was surprised when they discarded their investment. Clearly, there were ‘winners’ and losers in the VC firm as a result of this action. The startup was a big loser, the contractor suffered significant loss, and so did the VC firm as a whole. I doubt any positive lessons were learned by any of the parties involved.
In summary, the principal lesson for me was how I might transition from expert witness to management consultant. If a management consultant is experienced and perceptive enough, and if support can be identified within the client organization, a management consultant could provide insight and metrics to drive a client's change management process. To illustrate how impactful that might have been, here are a few quotes from an article entitled Consulting Is More Than Giving Advice, published in September 1982 by The Harvard Business Review:
Consultants facilitate learning by including members of the organization in the assignment’s processes. For example, demonstrating an appropriate technique or recommending a relevant book often accomplishes more than quietly performing a needed analysis.
With strong client involvement in the entire process, there will be many opportunities to help members identify learning needs. Often a consultant can suggest or help design opportunities for learning about work-planning methods, task force assignments, goal-setting processes, and so on. Though the effective professional is concerned with executive learning throughout the engagement, it may be wise not to cite this as an explicit goal…
Too much talk about client learning comes across as presumptuous — and it is.
Learning during projects is a two-way street. In every engagement, consultants should learn how to be more effective in designing and conducting projects. Moreover, the professional’s willingness to learn can be contagious. In the best relationships, each party explores the experience with the other in order to learn more from it…
Increasingly, the best management consultants define their objective as not just recommending solutions, but also helping institutionalize more effective management processes.
What instruments do you play?
I play guitar, bass, various percussion instruments, saxophone, and I sing. Currently, I am learning to play harp. I blog about the technology I use for recording and streaming on my website, mslinn.com, where I also blog about my experience as an expert witness, and I publish music videos on Facebook at facebook.com/mslinnmusic.