In this episode…. 

Networking within his industry is the primary way in which Rob has found expert work. He mentions, “I’ve never marketed myself as an expert, I just happened to know a lot of people in the industry. I always make a point of meeting people, getting to know them.” Once hired, it is crucial to stay truthful and speak to what you know. Rob remarks, “…telling the truth is fundamental to being a good expert witness. You don’t serve your clients’ interests by trying to be an advocate for them.”

Additionally, we chatted about when to question attorneys, remaining an expert in one’s field, and the importance of enjoying your work, as Rob states, “Don’t embellish. Don’t teach. And have fun with it . . . enjoy those interactions.”

Episode Transcript:

Note:   Transcript has been lightly edited for clarity

Host:  Noah Bolmer

Guest: Rob Aft, Owner of Compliance Consulting, LLC

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer. Today’s guest is Rob Aft, he is the President of Compliance Consulting, LLC, a media consulting outfit out of Los Angeles, CA. His high-profile clients range from Peter Jackson to the Directors Guild of America. Additionally, he has served as the President of International Distribution at the Kushner Locke Company and Senior Vice President of MDP Worldwide. Rob has taught film business courses at numerous universities and is a published author in the film industry books, papers, and articles. Rob, thank you for joining me here today. I am excited to have you on the show.

Rob Aft: Thank you, Noah. It is a fun chance for me to talk about something that I try to recruit people into all the time. They find the early stages challenging because I often think they do not understand why they are an important part of the process.

Noah Bolmer: You have been consulting in the film industry for over 2 decades. It looks like you have always had a passion for film. How did you break into the industry?

Rob Aft: No, I did not get into it because I always tell people we have about 3,000 books in the house and about 20 DVDs. Most of those are still in the plastic now. I come from more of a book background and I got into the film industry to travel. I had been living overseas in Spain, Mexico, and a couple of years in France and I tried to think of a way I could continue to travel and have a job in the United States. I happened to stumble upon the film industry while I was working as a translator in Paris. I became aware of this whole network of festivals and markets where you get to go to the south of France two or three times a year depending on your business. You get to go not only to the major markets, but to festivals, in Toronto, Tokyo, Sundance, and wherever they are happening. You are doing business, but it is still travel and that is why I got into it.

Noah Bolmer: You went from a travel-minded literary guy into the film consulting industry, and you have been doing that ever since.

Rob Aft: Just to clarify, I started as a sales agent selling licensing for English language movies to distributors around the world, I did that for 12 years and then I got into consulting.

Noah Bolmer: You became a consultant. How did you parlay that experience into being an expert or an expert witness?

Rob Aft: It was during that time that I was functioning as a sales agent. One of the things about the independent world is that you do not have the support you might have at a studio. You also have legal departments that are much more interested in working on production instead of sales contracts, mediation, arbitration, and collecting monies. Whatever the legal issues are, I had to do all that kind of thing myself. I had to interface with the banks for loans. I had to work with attorneys on all sorts of agreements. Learning about all of these different aspects of the business was important for me to have the kind of background where I could analyze legal documents if I had to. I cannot function as a lawyer, I am not an attorney, but I can read the contract and I can talk about how that contract is implemented in the real world. I have come up against the other side. There have been experts who are academics and look at things from a theoretical standpoint, but having practical experience is what I think is the most convincing and important.

Noah Bolmer: Were you first approached by somebody, or did you market yourself as an expert?

Rob Aft: I have never marketed myself as an expert, I happened to know many people in the industry. I made a point of meeting people and getting to know them. They know about their businesses. I did networking and some lawyers that I worked with mentioned that there was litigation happening in an area that I was familiar with. It had to do with the non-payment of revenues that were due to a producer. The law firm engaged me and did an amazing job explaining to me how an expert witness should behave, what their role is, and how to deal with depositions. In that case, I had a deposition and testified in court, and I enjoyed the experience. I enjoyed sharing knowledge, but I also enjoyed being with the attorneys. These were attorneys that were educated. Often attorneys do not understand the topic. They are litigators and not film industry experts. For example, they need experts to tell them. how the industry works. I enjoyed that.

Noah Bolmer: Right. That touches on the things that we have talked about before. Rob and I have spoken before, and he has great advice for experts starting, those well into their careers, and attorneys. So, let’s go through some of those observations and recommendations, and if you have a story to drive any of this home, it’s all the better. One of the things you were telling me about is how important it is to tell the truth but to also stay in your lane. What do you mean by that?

Rob Aft: Telling the truth is fundamental to being a good expert witness. You do not serve your client’s interests by trying to be an advocate for them. You destroy your credibility. Whatever you are bringing to the table is not worth anything to your client as soon as your credibility is destroyed. You have to tell the truth even when it is not necessarily in your client’s favor. Also, tell the truth to the attorneys you are working with, point out weaknesses in their case, and so telling the truth is fundamental. You are also under oath. It is illegal while you are under oath to lie and. so there is that. I do not know if anyone has ever been prosecuted for perjury during their expert witness testimony. Stay in your lane. Do not claim to have expertise in an area where you do not. That is the easiest way to wreck your credibility as well. Assume that the other party has experts who are at least as good, if not better than you are. They are more knowledgeable, more experienced, whatever. Let’s just assume that is the advice they are getting, and if you step out of your area of expertise and offer an opinion on something that you do not understand or know, you are going to get caught. There is no way around it. The other side’s experts or the lawyers themselves are going to say, “He has no idea what he is talking about” and then you will be grilled on why you think you are an expert in that area, and your credibility will collapse.

Noah Bolmer: They may be doing oppositional research before the case, right? They are already looking to kind of impeach the other side’s witnesses.

Rob Aft: I think that is incumbent on not just the attorneys, but I will do some of the same work. There are many ways to obtain information about the other side’s witnesses that could serve to harm their credibility. Not all of those are obvious to the attorneys involved. In most cases, I know the other side’s expert personally and I know what their history is, what they have done, what they have written, and if that contradicts something that they are saying, then I think it is my role to point that out.

Noah Bolmer: As you are in the same industry.

Rob Aft: That has happened a few times, and it is supported by the other side’s expert writings. I will cite the other side’s expert in support of my opinions, and it is hard for the other side to defend. It hurts their credibility if they are changing opinions based on whether they are a paid expert.

Noah Bolmer: The other side of the coin is if you have a large body of work behind you for your case recalling what you said in the past and not accidentally contradicting it is important. Maybe your opinion has changed or your understanding of something has changed since your previous writings.

Rob Aft: The industry is constantly changing and that is something that I have addressed often in writing. I do a lot of work with the United Nations World Intellectual Property Organization and have recently published a second edition of a book called “From Script to Screen, Copyright in the Film Industry” or something. I always forget what the title is. It is a free publication, easy to download and there is a reason that there is a second edition. Twelve years passed between editions, and during that time, streaming services became a geopolitical reality that caused a change in the Chinese marketplace. The way contracts are negotiated, and deliveries are made. There are so many different things. Fundamentally, the business usually remains consistent in terms of contracts, licensing, and distribution. Opinions need to change and evolve, but within that scope you have to be careful of contradicting yourself and knowing the information the other party is going to have on you and you need to be able to defend yourself.

Noah Bolmer: Speaking of opinions, you were telling me about the way a good attorney will not tell you what your opinion is. They will incorporate your opinion into the case. Have you been on the receiving end of an attorney not doing a good job? Where they are trying to influence your opinion on the thing that you are an expert at.

Rob Aft: Yes, I think the best attorneys do that the least, but all attorneys at some level would like your opinion to fit their narrative and help their clients. That is always a delicate situation. If someone directly says to me. “Well, we’d like you to be able to say it like that.” I will think for a minute and if that is the truth, I say it like that. Because I might be coming at something from an academic angle or an angle that is hard for a judge, jury or arbitrator to understand. They might say, “OK, yeah, I get what you are saying. but it sounds like word salad to most people. How can you explain that in a better way?” And in terms of feeding me an opinion it rarely happens because attorneys know that is not the way I work. Most of the time where I am asked directly to have an opinion of one type or another. I reject it out of hand. But I do consider that the narrative is a certain thing because when you are looking at a 100-page interparty agreement. I have many opinions about that. How many of those are relevant to the issue? I am not sure, so I need to listen to the attorneys when they say, “Well, that was arbitrated in a previous matter, and it is no longer relevant.”

Noah Bolmer: Let’s pivot to confidentiality. We are talking about confidentiality issues and discovery, and it is something that you have to always be aware of. Tell me a little bit about that.

Rob Aft: There is information being shared with the experts that is always discoverable. If something is coming, I am not aware of any reason or any excuse you would have not to divulge that during a deposition or the subpoenas, all say what information you received and you must give them that information. You do not have a choice and when you are corresponding with the attorneys, most of that is discoverable. I have been told that drafts of reports are often not discoverable these days. When I started doing this. I was under the impression that all drafts of reports were discoverable. Now I have been told that maybe not. Anyway, I will always defer to the attorneys on matters like that and just say look, “If I send you this report by e-mail, is that discoverable?” If they say no, then you know that it is not that and I do not hand it over. Generally, everything is discoverable. Conversations with the attorneys, and conversations with your client, which you probably should never have, are all discoverable. It is a pain in the ****, especially if you must take notes to remember things which, when you are my age, you do and those are all everything. Everything is discoverable, so be careful what you write down and say to people. Always assume that there is somebody in the room that took note that you said something that is going to be offered in discovery.

Noah Bolmer: Do you feel that the attorneys that you have worked with have adequately prepared you for that? Let you know what is and is not discoverable, what to maintain, what to record, et cetera.

Rob Aft: It is interesting because I often have these arguments with them upfront. I have had attorneys that said, “Look, we are going to get on the phone with the client.” Then, I say, “What? I do not want to talk to the client.” The client is more likely to try to influence my opinion than anyone and then I must divulge that.

Noah Bolmer: Right.

Rob Aft: I cannot. They will say, “You talked to the client on this day?” “Yes, I did.” “What did they tell you?” “They told me they wanted me to lie on the stand.” That does not look good, whereas the attorneys understand that they should not do that.

Noah Bolmer: Okay.

Rob Aft: So, I have dealt with attorneys that did not understand discovery issues, especially if they were not litigators, themselves. Then I have had attorneys that are just excellent in discovery issues. I like it when the attorneys prepare all of the material. Sometimes I have sent a massive amount of paperwork and I do not want to have to list every bit of it by Bates Number and whatever. I expect the attorneys to prepare that part if I have done outside research of my own. Of course, I must prepare that but in terms of what I have been given, please just keep a list. I assume they keep a list, and they turn that over.

Noah Bolmer: When you are prepared by your attorney, how incumbent is it upon you to research aspects of your field that might pertain to the case that you do not have current knowledge of? In other words, how do you maintain not only being an expert but being an expert in the specific matter of that?

Rob Aft: That is an excellent question, I go to film markets and film festivals. I have many friends who are bankers, lawyers, sales agents, and producers. Tomorrow, at lunch with a producer and a sales agent we will discuss the marketplace, aspects of how contracts are changing in the streaming world, and how people are dealing with the allocation of receipts. It is almost a pattern to get into with people, It is like asking “So, how is business?” Which I do often, and you know it often is depressing to hear, but so, I keep up with all of that. Then, I read the trades, read the literature, and I read a UN report yesterday. That was long and there was a lot of what I considered irrelevant information in it. But I plowed through it and that is how you keep up. You must stay current to have relevant opinions. But there is another part to that question.

Noah Bolmer: it was keeping on top of it, not only these of your field in general, but with respect to the particulars of the case at hand.

Rob Aft: Right. Often the cases involve people I know or things where I can either suggest to the attorneys to contact someone directly or say, “Look, I think so and so we will probably have relevant information. They could probably clarify this issue.” Especially if it is outside my area of expertise. Then in terms of outside specific information, I will always check things like the International Film and Television Alliance Database of Arbitration decisions because attorneys often do not do that, and that will list the party’s arbitration. If someone is constantly arbitrating or constantly getting into legal disputes. if that person lost to another company where I know the principles, I would call the principles and say, “So what happened? What was the dispute? What was your experience with this dispute with the other side’s attorneys? Who were the attorneys? Are they using the same attorneys? Why do you think you won?” I mean, there are many topics that I can reach out to people within the industry on a specific case and get relevant information. Of course, those discussions are discoverable, so if you find out something that is not good, then that is the danger.

Noah Bolmer: You take a proactive role as an expert. Is that something you did when you were first learning the ropes of this? Were you initially told you should make sure you do your research and challenge some of the things that the attorney says? Preparing yourself on your terms and asking many questions.  Were you prepared for that or is that something that you learned along the way? What would you say to newer experts who are not sure exactly how deep they need to dive in? How much do they need to self-direct?

Rob Aft: I would say that expect the other side to be extremely prepared and the more prepared you are, the better. I am a natural researcher. It is in my nature to conduct a huge amount of research. When I was selling movies, I would set prices based on the budget of the movie. Germany pays 10% of that. So that is the price I would research. Which client is more likely to buy this? What are they going to do with it? Is this cast better for Germany? What other movies have they been in that might have performed? I always did research. I cannot help it, so, when cases come up, I would do the research. I am too much of a teacher. The experts should not be professors. If there were things that I thought the lawyers should know about the way the industry works, especially if they got it wrong, then I would tell them. I think I did that right from the beginning, and luckily, I was working with attorneys Larry Stein and Ann Lowe, and they were excellent. Ann has passed away, unfortunately, and I think Larry is retired, but they accepted my opinions. Not just opinions but also my knowledge, expertise, experience, and relationships, they looked at all those and said, “Yeah, this guy has something that we need to know to understand this case in general.”

Noah Bolmer: Before we wrap up, I want to talk to you about a thing that we have discussed, which is getting paid. That is not something that I have talked about on this show before. Tell me about getting paid in advance. You said to remember that you get paid for all of your time. Your time is valuable. I would like to hear about that before we wrap up.

Rob Aft: You are getting paid for your time. You are not getting paid for your opinion. That is a right that is a trick question that you get told upfront. They will try to say how much are you paid for your opinion. You are getting paid for your time, not your opinion. Keep careful records and get a retainer. I usually do not have a rolling retainer, so my final payment is often a little up in the air. I have been lucky that clients have paid me, but sometimes that final payment can take a while to get. In a deposition situation, it should be clear the other side is paying you. The other side has asked you to be somewhere at a certain time and asked you to leave at a certain time. They need to pay you for every minute of that. If there is a question in your mind, not your attorney’s mind, but in your mind that they might not be handing you a check that day, get it upfront. Have them say, “Look you will probably be here for two hours. Here is a check for two hours.” It should be clear and the attorney that you are working with should make it clear that payment will be made upfront. You need to make it clear to the attorneys that if for some reason you were not paid by the opposing party for your time then your client will be covering the bill for your time. Getting paid is an art. I wrote a chapter for the movie business book called Getting Paid. You need to know what leverage you have, but it is challenging sometimes.

Noah Bolmer: Is it difficult to broach the topic with an attorney?

Rob Aft: No, because attorneys, inevitably I will not get into my billing, but in almost every case, Junior Associates at the firm are making more per hour than I am.

Noah Bolmer: Right.

Rob Aft: I have no qualms about telling a $ 1,000-an-hour attorney that I would like to get paid. This is my bill. People do not complain about my bills because I tend to be conservative in billing. I have seen bills because bills are discoverable, from other experts that have shocked me. Where I thought you spent 40 hours working on this two-page report that has nothing substantive.

Noah Bolmer: Right.

Rob Aft: You are either the slowest person on the planet or this is padded somehow. I always tell the attorneys when they say the bill for those hours. I say, “If I had to read a document that took me 3 hours to read and then three months later, I need to read it again (which often happens because you are preparing for trial, or you are writing a report), I do not charge you a second time. I do not charge you twice for reading the same document because I forgot something. I have spent hours looking for one specific line in a deposition that I knew had to be there. I do not charge for hours because I cannot find something.”

Noah Bolmer: That is a fuzzy line, though.

Rob Aft: Attorneys tell me to.

Noah Bolmer: The attorneys tell you to.

Rob Aft: Yeah, they do. They bill for 15 minutes.

Noah Bolmer: Right. Oh, you know they do.

Rob Aft: They are thinking about something while they are taking a shower, but whatever.

Noah Bolmer: Rob, do you have any last-minute advice before we sign off?

Rob Aft: I have fun with it in many ways. It is a game, and it is treated as a game by the attorneys. It is like a chess game, and if an attorney is yelling at you or questioning your parentage, do not fall for it. They are trying to get a rise out of you. You are there to calmly and completely provide Information and opinions. Mainly just opinions. The information might come with opinions, but that is your job. Your job is not to get mad or complain about the tactics that the other attorney is using. You always have someone from the law firm, I guess they call it defending your deposition and or objecting if it is in court or arbitration. Let them fight.

Noah Bolmer: Right.

Rob Aft: You sit there quietly until the fight is resolved. This person does not know you. They do not know your mother. If they do have something on you, then, be worried about that. Do not fall for any of that. Just answer the questions completely and thoroughly. Do not embellish, do not teach, and have fun with it. I enjoy those interactions. I have something I need to communicate to somebody who is hopefully interested in hearing what I have to say, I think I am good at it so. I guess that would be my advice.

Noah Bolmer: I think that is great advice and I think that you are good at it. Thank you for being on the show today, Rob.

Rob Aft: Thank you, Noah. You take care.

Noah Bolmer: This is Noah Bolmer, and we are signing off another Discussion at the Round Table. See you next time.

Rob Aft, President, Compliance Consulting LLC

Our guest, Rob Aft, is the President of Compliance Consulting, LLC, a media consulting company in Los Angeles. His clients represent the entire film industry, from prominent actors to the Directors Guild of America. Rob is a well published author in the film industry, with a focus on international distribution, and he has a great deal of experience as an expert and consultant.