In this episode…

Keeping a record of everything you publish, including interviews, is the best way to avoid situations where your own words are used against you in court, according to guest Mr. David Simon. His hard drive and cloud are “bursting at the seams,” organized with the contents of his long career in entertainment. Even when you take a consistent position on a topic, being able to refer is a boon, because the opposing side will certainly be looking.

Check out the entire episode for our discussion on keeping up in a dynamic field, giving the neutral truth, and working on a team.

Note:   Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: David L. Simon, President of Simon Bros. Media Consulting and Advisory Firm

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome Mr. David Simon to the show. Mr. Simon is the founder and president of Simon Brothers Media, a consulting and advisory firm, and he’s on the Board of Directors for Fan Film Limited, where he has produced film and television documentaries. With over 20 years of experience, he’s a sought-after expert witness for entertainment litigation matters. Mr. Simon, thank you for joining me here at the round table.

David L. Simon: You’re welcome. Thank you.

Noah Bolmer: You’ve been in the entertainment business since the late 80s. How did you first become involved in expert witnessing?

David L. Simon: I’ve been in the entertainment business since the mid-1970s. I got involved in the expert witness business- I didn’t plan on it and was asked to opine on a case involving a logo, which was something I had a lot of experience in over the years.

Noah Bolmer: Is it something you were actively seeking out or did they just find you?

David L. Simon: They just found me. I hadn’t thought about it before.

Noah Bolmer: First, when was this? How long ago was it when you first got these first calls?

David L. Simon: I’d say 1995.

Noah Bolmer: It was in the mid-nineties when you started expert witnessing. You’d been in entertainment for a long time, and you get this call and what did you think about expert witnessing? What were your expectations heading into this first engagement?

David L. Simon: The first thing you have to do is look at the case and determine whether you’re the right person for it and, depending [if you are] on the plaintiff or defendant side, you have to decide whether or not you agree with it. That’s the way I’ve approached it from the very beginning.

Noah Bolmer: How do you make that determination? What are the factors that go into the calculus? “Am I the right person for this?”- beyond just having the appropriate experience? What are some of the other intangibles that you look for?

David L. Simon: [Much] has to do, especially now, with the way the business has morphed into larger and more complex media. It’s keeping up with what’s been going on in the aspects of the business in which I am supposed to provide my expert opinion.

Noah Bolmer: Sure.

David L. Simon: I look at the areas in which I feel I have the experience [and] am up to date on what’s going on in that aspect. Whether or not I can with my hand on my heart, say that I agree with whomever has asked me to opine. I have to look at the areas in which I’ve had the experience, and that I’m up to date on what’s going on in that particular aspect and whether I can, with my hand on my heart, agree with whomever has asked me to opine.

Noah Bolmer: You talk about staying up to date and every industry is different. For your industry, what are some of the things that you do to stay abreast with what’s going on in your field and the most current thinking? How do you stay current?

David L. Simon: Part of it is working in it, and through that, I see changes every day in companies, methods, and methodology. It’s whether I soak up information about the industry. I’m reading not just the normal- what used to be Hollywood Reporter and Variety. I’m into more specific data and information related to the business changes or the changes in the players in the business.

Noah Bolmer: Have you done any industry reporting, written for any trade publications, or taken interviews or anything like that?

David L. Simon: I’ve had a couple of interviews and I’ve also written a couple of articles on the valuation of feature films and the vertical integration of media companies, and especially media conglomerates.

Noah Bolmer: Once you’ve done interviews, written in articles, and used social media, how do you keep track of all the things you’ve said in case the opposing side at some point wants to use something that you’ve said and twist it in some way? Maybe you’ve changed your opinion on something? How do you keep track of the different things that you said over the years? How do you respond when somebody tries to use that to impeach you?

David L. Simon: I keep a record of everything. My hard drive or my cloud is busting at the seams. In terms of impeaching me, I’ve been very consistent, especially in cases where it involved the evaluation of either a television series or feature film. I feel comfortable being able to rebut whatever words they’re trying to put in my mouth.

Noah Bolmer: Does that sort of thing typically come up during depositions?

David L. Simon: I will. I do not necessarily go back and look at my articles, but it would be in previous testimony in other cases. I may be boring, but I am consistent in the methodology that I use, and I spent more than a decade, two decades as a buyer, a scheduler, and even on the sales side of things. I worked for large companies like Disney, Fox, and Dream Works. I’ve had that hands-on experience, and I’d have to make those estimates or calculate based on comparison, and that involves a lot of different areas to compare.

Noah Bolmer: You mentioned a changing landscape has impacted the way you go about expert witnessing. Has the changing structure of entertainment and media impacted your daily work as an expert witness?

David L. Simon: It does have an impact. Speaking as an ex-studio guy and somebody who is either working with the studio or working against the studio, some of the studios are more difficult to deal with, and you’re not going to be able to commit to anything. You can’t get to the point where there is discovery, for instance. You’re working with an algebraic formula. But in most cases, I’ve been able to build at least a basic model that can be used.

Noah Bolmer: What are some of the preparation techniques you find helpful when going into a deposition or even going into a trial? Are there things that attorneys should be doing that work particularly well for you?

David L. Simon: Obviously, not getting into names or cases, but some attorneys work right alongside you and seem to care about what I think. There are other attorneys, and I’m not saying this is wrong, but they will want me to adjust my testimony based on something they think is important that I don’t necessarily agree with, or I wouldn’t normally use in my testimony or expert report. That’s seldom. But when you’re going into deposition and prepping with the attorney and their team, that’s important because it’s not like you’re reading a script. You’re prepared for all your answers. I don’t get stage fright, but sometimes, you have an excellent attorney on the other side who’s good at trying to get somebody to go- you have to ignore that. When you do take a break, some attorneys don’t want to talk during the break, which is crazy in my opinion. It’s not like they’re telling me what to say but telling them whether I am hitting on all cylinders. That’s important to be able to have that opportunity before and during.

Noah Bolmer: Regarding not getting frazzled by the opposing counsel, is it something that comes from experience or are there specific techniques that you use? Do you have a cup of tea before you go on or is there something that works for you to keep calm, cool, and collected when they are peppering you with potentially difficult or embarrassing questions?

David L. Simon: I don’t have a cup of tea. I have my bottle of water around. The way to get around losing tempers is to slow things down and not only remind myself but also remind the opposing counsel that I wrote a report. “Let’s go to a [specific] page and this is what I said. If you’re trying to tell me I said something else, that’s not true.”

Noah Bolmer: Do you keep a copy of the report with you when you’re giving testimony so you can refer to it? Not all jurisdictions, California is one of them, might not allow it in all situations, but is that something that you recommend?

David L. Simon: I think it’s important not only I mean this isn’t like taking a test. You’re not trying to get a good score on the SAT. You’re backing up something you spent numerous hours researching, formulating, and writing. I think it’s only fair that the expert witness should be able to refer to the report they’re questioning- questioning me about.

Noah Bolmer: Speaking of reports, do you have experience using visual aids, and if so, what works during testimonies, particularly trial testimony, when the jury might be looking at it?

David L. Simon: I think if you’re trying to prove a point, for instance, that a producer ripped off another producer’s idea, visual aids are good whether they’re static like a photograph or a comparison of two photographs, or a clip. Sometimes, it has to do with audience research or demographics that prove the point that you’re ripping off my show for kids. I’m not because I look at the demographics of the show that I’m representing, and the demographics are women 18 to 34.

Noah Bolmer: When you employ these demonstratives, do you put those together yourself, or does somebody from the trial team help with that?

David L. Simon: It’s a combination. Sometimes I have something that is perfect, and I’ll bring it up to the team, and wow, that’s great. The other would be if you have a good team with resourceful people, they’ll find things. What’s interesting is that I find this in expert testimony and in cases for an attorney who’s not an expert in a particular field, whether it’s entertainment, medical, steelwork, or airplane building, I’m impressed with several of the legal teams I’ve worked with who have the basic understanding. They ask me the right questions to get them over the top. It’s like doing the high jump and you need that extra quarter inch, or millimeter, or whatever they call it now. That’s important to me. It makes the whole team feel comfortable and we end up with a better report and a better deposition if it goes to court or arbitration or your testimony. That’s the most important thing. The times that I’ve worked with people who have a limited understanding of what they are complaining about, it is difficult because unless they’re open to me, wanting to tell them, it’s hard to keep saying, “You’re going down a long road and I wouldn’t say that.” or “I wouldn’t have done it that way.” The people that I’m working with have their senior partners, and the senior partners have the managing partner, and if it’s a big case, they’re putting pressure- that pressure then comes down on the expert. I’ve only had a couple of times where that’s happened. It’ll work down at the end, but I would feel more confident in the case. When people hire me as a consultant, the first thing I tell them is I’m not going to tell you what you want to hear. I’m going to tell you the truth or how it really works. Sometimes, you know right away that “I don’t think we’re going to be able to work together.” That has not happened with expert witnessing. It has happened in consulting, but I pride myself on the knowledge, experience, and expertise that I’ve built over the last 50 years. To have somebody, it doesn’t matter what age they are; they could be 65 or 35, tell me, “No, that isn’t what we want to say.” I’ll say, “But that’s not the case, and that isn’t something I can, as I said before, hand on heart, tell you that’s what I believe.” Sometimes you must be brutally honest, and I’m a team player. If I can try to maneuver certain things in a way that isn’t uncomfortable for me, I’m all for it.

Noah Bolmer: If you can provide an alternative that gets you to the same place, and that you feel better about.

David L. Simon: Exactly.

Noah Bolmer: We talked about trial teams. What is it like working on a bigger team that might have several attorneys or multiple experts? How much do you interface with all the different people? Do you work alone? How does a trial team work?

David L. Simon: That’s a good question. I’ve worked with solo lawyers who work out of their office at home but have a great case. They either know me from a previous life or were recommended by somebody we both know. That’s a lot easier and there is less potential for confrontation. I don’t want to overdo using the word confrontation, but that’s not even the right word. It is a misunderstanding.

Noah Bolmer: Sure.

David L. Simon: Working with a large team with national and international offices in LA, New York, Chicago, Boston, London, and Tokyo, they’ve got superb people. The managing partners are people both attorneys and non-attorneys bow down to because they’re so well-known and have accomplished- but as I mentioned before sometimes the direct contact or the direct person that I have the most contact with and the one who basically hires me will get pressure from another partner or from another attorney who’s handling another expert. So far, I’ve never worked with any other experts. It’s always been solo. I think that’s good because it’s up to the attorney and the client what they want to use and what they don’t want to use.

Noah Bolmer: One of the things that you mentioned earlier on was working for both the plaintiff and defendant sides are there any-

David L. Simon: Both. I’ve worked one or the other.

Noah Bolmer: It would be quite the engagement to be on both sides. Is there a significant difference in the way that you work as an expert witness for the plaintiff side versus working for the defendant side?

David L. Simon: I get very involved in the case and take it personally. Especially when it’s something I know. If I’m on the defendant’s side, then why- it’s so obvious that they didn’t do anything wrong, and here’s why. At the same time, when you’re the plaintiff, how could a studio mismanage the payment of royalties or whatever? There isn’t much difference. I’ve worked on twenty-five cases now, and two of them have been as the defendant’s expert and the rest of them have been for the plaintiff. I will say that I don’t know if you were going to ask this or not, but in your notes, you mentioned class action. I have been involved with a few class action cases and I find them to be strange. It’s not a cut-and-dry case that you have with something that’s not a class action. It tends to be that the attorneys have not studied up on the subject matter so in one case, it’s great because they’re relying on me and other experts to provide true and accurate information. On the other hand, if they don’t understand it, then they might- there are times, they’ll [say] “This doesn’t matter in the case.” But [I’ll say], “Actually this is the whole case right here.” I’m not trying to sell myself here at all, but I find that. I want to have a great relationship with whomever I’m working with, and it’s usually the Senior Partner and then the Of Counsel or newer attorneys getting their footing. It depends on the team and personality doesn’t enter into it. Although I do appreciate working with younger attorneys who don’t know our business and telling them past stories. We go off on tangents because they want to hear more stories about Rupert Murdoch or Steven Spielberg.

Noah Bolmer: Does that kind of rapport enhance the engagement? Does that kind of end collegial environment ultimately help the end client because you’re in a good mood and doing your best? Is there something to that, or does it truly not matter?

David L. Simon: No, it does matter. That collegial atmosphere and relationship are important, and when it’s top drawer, not only the people you’re working with directly but their bosses, the partners they report to, who come into every three meetings and because they’re looking at things from 30,000 feet up, they might see something. “What if you push this a little bit more?” Do you feel comfortable with that?” I love it when they ask that question.

Noah Bolmer: That reflects what I’ve heard from other expert witnesses that have been on the show. You mentioned arbitration earlier, have you done any alternative dispute resolution actions?

David L. Simon: I have. Unfortunately, they haven’t gotten to the point of sitting in front of the arbitrator. They all lead up to and get to that point where, “Ok, next Tuesday, you’re on, we’re doing a deposition, and the following week, you’re going to testify.” That’s usually when they settle, and that’s fine. I don’t sit there like a cab driver. They still have cab drivers, right? When you run- I mean, if anything, I think I give away more than- well anyway, you know what I’m saying?

Noah Bolmer: Absolutely. In the lead-up itself, even if you haven’t been to the big show, is the lead-up to an arbitration significantly different than the lead-up to a typical court action?

David L. Simon: I’ll tell you that normally, I would say no, but it sometimes depends on who the arbitrator is because it may be a retired judge who knows all the lawyers involved. Both sides have worked in their courtroom. It may be somebody that’s got a lot of experience in our business and that makes the approach different. It’s not very different. I mean it’s very different. but technically my job is to put together my version of the case for them.

Noah Bolmer: Do you still do a report? 

David L. Simon: Usually. I enjoy doing reports. I’m not a mathematician, Harvard business school type of guy, with charts and things like that, but I am number-oriented, and it’s a matter of finding evidence and building that, and so there’s a lot of research that needs to be done. Of course, it’s always helpful if you’re able to get numbers during discovery.

Noah Bolmer: Without naming any names or specific actions, unless you’re at liberty to do so, are there any cases or actions that you’ve been a part of that have led to any aha moments, significantly changed, or even reinforced the way that you go about [being] an expert witness? Any seminal cases in your career as an expert witness?

David L. Simon: The case that’s referred to as the Ladd case was one of the first ones I was involved in. [It was] Alan Ladd Junior and his partner versus Warner Brothers Entertainment and related to twelve feature films that they felt were being undervalued. During that case, I had two more than 8-hour days of deposition, asking questions like, “You know so much about movies; what year was The Maltese Falcon made?” What does that have to do with it?

Noah Bolmer: Did they hit you with ones like that?

David L. Simon: What was great was in discovery, I was able to get a hold of all of their contracts and look at the titles that our client owned and looked at the other titles to see how much they were valued. Were they high or low? Were they right on? I’ve used that model since then. I’m still using it. Ladd won that and Warner Brothers appealed it, and the appeals court upheld the original award. My testimony was important, so I was proud of that.

Noah Bolmer: Of course. Does being involved in a higher profile case like that, especially one that you’re on the winning side lead to more business? Do people call you because of things like that?

David L. Simon: I have had people referred to me or people with similar cases who have found out that I was one of the expert witnesses who was involved in that. I don’t go around advertising. I don’t knock on doors and ask people. If somebody is interested. I’m more than happy to help and look at it.

Noah Bolmer: Along those lines, have expert witness referral services been of value to you?

David L. Simon: I’d say a third of my cases have come through referrals, and there wasn’t the referral company’s fault, but there was only one that ended up with a client who didn’t want to pay. It had nothing to do with me and they didn’t want to pay anything. It was all resolved and I do feel comfortable working with referral companies.

Noah Bolmer: Speaking of not getting paid, do you try to protect yourself, or is there anything specific that you like to do in contracts? [Do you] take a retainer or have any special terms in there to protect you from those sorts of situations?

David L. Simon: Generally, I will ask for an Evergreen retainer, so pay me $10, and when I’ve earned $10, you pay me another $10.

Noah Bolmer: Sure.

David L. Simon: Sort of like on a monthly basis. And I think it’s important to have mutual trust and I’ve never had anyone come back to me and say, “Your hours are ridiculous.” It’s because they realize [much] of it has to do with research and finding great examples for comparisons.

Noah Bolmer: Besides the instance you were speaking about where somebody tried to not pay you, have you had any other negative experiences that served as learning experiences?

David L. Simon: The way my deposition was prepared wasn’t the way I was used to in all, or most of the other cases. It was okay though. As long as you have an open door and tell them that afterward, it’s a learning experience.

Noah Bolmer: Do you typically find that sort of proactive approach is helpful when you can just call your attorney and say, “There’s a bit of a problem with X, Y, or Z. Can we fix this? Is that number one, something that you feel you have the ability to do, and two, is that useful?

David L. Simon: Yes, on both counts. I have used it and I do find it helpful.

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses and newer experts, in particular, or even attorneys working with expert witnesses?

David L. Simon: I would. For the attorneys, I would recommend they do the “Vulcan mind meld” with their experts and try and get in their heads. I am certainly not a lawyer, and I respect and appreciate how much time attorneys spend studying the law and practicing. All I ask is that [they] recognize that in return and again, I’m not saying people don’t, but there are times when you ask, “Are you the expert, or am I?”

Noah Bolmer: Absolutely. Mutual respect is the best policy. Thank you, Mr. Simon, for joining me here today.

David L. Simon: You’re welcome. Thank you for having me.

David Simon

David L. Simon is an accomplished television executive with a global career in management, strategy, development, production, programming, distribution and marketing. A skilled trailblazer serving as VP Programming at Fox Television Stations, Senior VP/Managing Director of Disney International Television Productions and Broadcasting (London based) and President of DreamWorks Television Animation Studio. He has hands-on experience in scripted, reality, live-event, documentary and animation content for multiple platforms. He has launched and managed multiple channels in both the U.S. and international territories. He founded his company Simon Bros Media in 2000 and has been retained by such major media companies as Sony, MGM, Fox Television, Microsoft, Turner International to consult and advise. Simon is known for his distinctive management style encompassing team building in a constructive, motivational and positive environment, with a strong track record as a start-up and troubleshooting specialist. He is a natural leader, facilitator and retains a consummate record for achieving goals. He is currently an executive producer and board member of the UK-based Fan Film Ltd production company. Simon also has a distinguished resume as an expert witness in entertainment litigation. He was twice elected by his ATAS peers as Production Executive peer group governor and served as a moderator of the Television Academy’s Creative Executives Peer Group Circle. He is also past president of NATPE, former two-term board member of BAFTA North America, a member of the Hollywood Radio & Television Society and a former board member of the San Francisco State University Foundation.