Best Practices for Expert Witnesses

On this episode of the IMS Insights Podcast, we converse with economist and statistical skilled, Dr. Charles Cowan, about greatest practices for subject material specialists partaking in litigation in addition to litigators working with specialists.

Teresa Barber: And Chuck, are you able to inform me a little bit bit … I discussed earlier once we first began speaking, we have labored with you on at the least 40 engagements on enterprise issues. You’ve got received a extremely fascinating background as effectively, and positively your subject material in statistics and economics, however skilled witness work is totally different. Are you able to inform me the way you first received concerned as an skilled?

Charles (Chuck) Cowan: I used to be working as a director at Worth Waterhouse and received a name from Carlton Fields, which is a big regional agency down in Florida, down in your neck of the woods. They’d this actually fascinating lawsuit, however they wanted to primarily conduct a survey, which is the way it wound up with me due to my background because the Chief of Survey Design on the Census Bureau. I had gone and I used to be now working for Worth Waterhouse, so I began to speak to those attorneys and found that what they’d and what they described was actually an analytic downside and my job was to translate what they needed to know into, how will we accumulate the info and show or disprove regardless of the claims are. That was my first introduction into the realm of litigation consulting, and I actually appreciated the individuals I used to be working with as a result of they have been prepared to bounce concepts backwards and forwards and listen to about different issues that they could do this they hadn’t considered. So, it was two-way interplay.

Barber: Attention-grabbing. Then over time Chuck, what have you ever loved probably the most about working as an skilled witness?

Cowan: I feel I simply alluded to 1 factor, which is once I’m working with attorneys, the factor I take pleasure in probably the most is in the beginning and thru the method, discussing totally different concepts, issues that may assist help claims or will present that the claims should not supportable. It is the mental interplay as a result of I see my colleagues within the authorized career as primarily growing hypotheses and making an attempt to indicate them, they only do not know that that is what they’re doing. So, my job is to take and translate what they’re doing and put it right into a framework that’s supportable. I take pleasure in desirous about the issue from their perspective, I take pleasure in desirous about how I can assist, and I benefit from the discourse as to what works and what would not. And the knowledge I get again throughout this discourse is, “You may’t do this as a result of it’s important to make a specific presentation on this kind of case.” Or, “Oh, what I need to do would not reply the query as a result of it is a contract legislation declare.” So, I study so much on the identical time that I am doing this work.

Barber: Appears like some mental problem that is satisfying too.

Cowan: I might say it is also true for the entire individuals who work with me right here. I imply, the rationale that they take pleasure in that is it is one thing totally different on daily basis, and it is an mental problem. How do I really present one thing or present that it isn’t true?

Barber: Proper, fascinating. You talked about litigators too, the authorized workforce. So for a litigator who’s working with an skilled witness for the primary time, what could be your recommendation to that particular person to essentially have a easy engagement and to get to that degree of placing the items of the puzzle collectively, harnessing that mental problem to advance the case?

Cowan: I feel in some circumstances, I feel the reply depends upon whether or not they’re coping with a brand new skilled, one who’s not finished this earlier than, or any person who’s seasoned. As a result of for those who’re coping with a seasoned skilled, they need to know sufficient in regards to the authorized background to have the ability to throw out some concepts and have dialogue with you. If it is a new skilled, then what occurs is that a part of the work of the litigator is to coach that particular person to maintain their mouth shut. I used to be a little bit harsh once I mentioned that however really more often than not, the largest downside I see with individuals who’ve by no means testified earlier than is that they need to present how a lot they know and I am certain that lots of them know so much, however there’s your … In the event you’re requested a query, sure or no is a high quality reply.

Barber: Proper. And that was one query I used to be interested in too for these … Many specialists we see at IMS could also be a extremely acknowledged trade authority. Well-known of their subject, well-known in academia, however they’ve by no means been retained as an skilled earlier than. It’s a totally different factor to be a subject skilled, versus making ready for work as an skilled witness and dealing with an legal professional. Wanting again at your very first engagement, what would you’ve gotten wished you’ll have recognized again then or had somebody put together you for? And, what recommendation would you give to a brand-new subject material skilled who’s partaking for the very first time on litigation?

Cowan: That is really very simple for me to answer as a result of that is one thing, I’m going via with individuals I rent and I’ve to undergo this with them. I might say to start with that my expertise with Carlton Fields continued. I’ve labored a number of circumstances with Carlton Fields, after which subsequently in among the IMS circumstances. You talked about circumstances which can be residential mortgage-backed securities circumstances. What I discovered was that I used to be exceptionally effectively ready by most of those legislation companies for what it was that they thought was going to come back up, what have been the important thing points that wanted to be addressed? So long as you are making ready the skilled, you clarify why that is necessary, what’s the focus of your case and preserve from meandering away from that. You might be extremely useful.

Cowan: I might additionally say that my greatest downside in coaching individuals is to get them to reply the query that they have been requested. A variety of reviews come to me they usually at all times begin with, effectively we did this, then we did that, then we did this, and there is a principle over right here. And I am pondering, “Wait a minute, what was the query and what is the reply?” Then I at all times discover that buried in direction of the top. So, I rewrite the reviews after which clarify to folks that that is totally different. There is a particular declare. There is a particular query and the main focus is, what is the query and the way do I reply that? And, what’s the reply? Not a lot how do I reply it, however what’s the reply? Then later, you may describe how you probably did it. And everyone desires to indicate how sensible they’re, after which ultimately get to the reply versus saying, you requested me this, the reply is sure, the reply is not any. The reply is, it may very well be relying on these following three circumstances, and then you definitely present how you bought there.

Barber: The methodology, yeah.

Cowan: Yeah. And I might say for litigators, that may very well be actually irritating for a litigator as a result of any person simply retains coming and speaking or explaining, and there is an excessive amount of explaining happening. So, the litigator I feel can assist the skilled by explaining to them that it is a easy query, what is the reply? Then as soon as they begin to deviate from that, you rein them in, you begin over till that turns into a behavior.

Barber: Yeah, very fascinating. Jargon is one other one I need to discuss with you about too and realizing that you just practice professionals coming into Analytic Focus. Material specialists, scientists, engineers, we are able to get very enamored with the jargon of our industries. How necessary is it pondering from the attitude of an skilled witness? How necessary is it to have the ability to talk clearly to an viewers who is probably not an skilled in your subject, who might not know these phrases CMBS, RMBS? What function does that play in communication?

Cowan: Nicely, it is essential since you’re speaking with a bunch of people who find themselves not conversant in my terminology, and people are my shoppers. Then over and above that, my shopper and I are then making an attempt to consider, how do I current this to a decide or to a jury? What I’ve found is that … I am instructed continuously that juries are an eighth grade degree and I disagree. I feel that many of the juries I’ve seen have been higher highschool, highschool senior degree. However that also signifies that I’ve to clarify my phrases. Now, I’m perhaps not the perfect particular person to ask this query of as a result of I am dishonest. That is as a result of my undergraduate diploma was in English Literature after which I needed to go and get a second bachelor’s diploma in economics as a result of my dad needed me to get a job. So, I continued on in economics after which in statistics, and I’ve received all that background. However when it comes to presenting and explaining to any person, I perceive the worth of retaining it easy and direct.

Barber: Yeah, excellent factors. After which I’ve to ask you Chuck, have you ever had any mentors in your profession who particularly formed your path, your path? Helped you see, “That’s really an fascinating subject. I am very interested in questions and curiosity once I examine statistics and economics.” Anybody who actually stands out when you concentrate on these mentors alongside the way in which?

Cowan: I feel I might identified three. One was in statistics, a man named Seymour Sudman who was an excellent statistician, however a really laid-back man. He was on the Survey Analysis Lab on the College of Illinois. He was actually good at getting me to see the larger image slightly than focusing strictly on the statistics. We have been engaged on fascinating issues like counting the variety of lacking kids in america, or performing some kind of projection primarily based on uncommon branches of statistics, after which he … I used to be working on the Census Bureau, he was on the college and he invited me to be a visiting analysis professor for a yr at College of Illinois. And I discovered a lot in that surroundings when it comes to take care of enterprise issues and clarify issues to individuals, slightly than going fully technical. So although I talked in regards to the English background, I additionally discovered this by emulating different people who find themselves excellent at it.

Cowan: On the litigation facet, I am going to return to how I first began out, after which how I progressed as a result of I had mentors in two alternative ways. Once I first began out, there was a gentleman named Mark Brown and he was prepping me for depositions. He would ask me a query and I might say, “Sure, and it is as a result of,” and he would slap the desk to get me to cease speaking. He stored doing that till I noticed that the reply to the query was sure or no, and all of that embellishment was giving up data that I should not be giving up. I discovered that to be extremely helpful so each time I now do a deposition, I’ve at all times received Mark sitting at my facet slapping the desk. However that was early in my profession.

Cowan: Then later as I developed and I listened to the query and understood the place they have been going, so this can be a discovered talent. You must hear and take into consideration, effectively, the place are they going to be 4 questions from now and the way can I cease them from getting there? Which isn’t at all times what you need individuals to do as specialists however once more, a special set of parents at Carlton Fields after which Philippe Selendy whereas he was at Quinn Emanuel developed what Philippe described as counterpunching. Counter-punching is doing precisely what I mentioned, which is I am asking a query, but when I give a easy sure or no, I am simply opening up a pathway to pursue, versus anticipating what the query actually is making an attempt to get to and counter-punching in order that they cannot get there.

Barber: Proper. Yeah, fascinating. Nice considered these mentors alongside the way in which too for you Chuck. I’ve actually loved this dialog with you. Positively so much fascinating I feel foresight and insights for our viewers on CMBS particularly. Is there the rest that you just’d like to speak about?

Cowan: I feel the one different factor that I needed to say is that there is quite a lot of data that’s out there on all of the subjects that we have lined. We talked about rents, we talked about forbearance for renters, we talked about wage charges, we talked in regards to the altering path for companies as as to whether or not they’ll … Every a kind of is a separate matter. What’s required is an enormous image view that claims that is occurring, that is occurring, that is occurring and there is a confluence of those occasions which can be ultimately going to have an effect on the financial system in a wide range of methods, and one specific space that I am conversant in is a business mortgage-backed securities.

Cowan: In order we’re discussing this, what I am actually saying is open your eyes, open your ears, suppose extra broadly and that may get you to a spot of anticipating slightly than reacting. That is my last thought and that’s what I do. That is what we do. I imply, I’ve already been via Bloomberg to see what data is obtainable, the way it may very well be used, how we may do forecasts. The concept is to determine, effectively, if I can forecast this, then that simply helps everyone work out what in the end would possibly occur. I needed to say thanks to you additionally. This has been a really satisfying expertise and it was nice having the ability to discuss to you once more.

Barber: Yeah, likewise. I actually loved it Chuck.

Cowan: Thanks once more, this was fantastic.

Barber: I loved it too. Thanks, Chuck, I respect it.

Cowan: Nice talking with you.

Barber: Alright, discuss to you quickly.