A picture is worth a thousand words, and Mr. Glenn Bierman, a former kindergarten teacher, observes that visual aids are a boon to laypersons, whether children or adults. Now, as a financial advisor, he prepares his own visual aids when called upon to do expert witness work to quickly present information in a digestible manner and has had success in doing so.

Check out the full episode for our discussion on experts in arbitration, billing, and double-checking your work.

Episode Transcript:

Note:    Transcript has been lightly edited for clarity.

Host:    Noah Bolmer, Round Table Group

Guest:  Glenn Bierman, Founder of Tycon Partners

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host Noah Bolmer, and today I’m excited to welcome Glenn Bierman to the show. Mr. Bierman is the founder of Tycon Partners, a management consulting advisory firm. He’s an experienced expert witness and has over 30 years of experience in a range of capital market matters both at trial and in alternative dispute resolution. Mr. Bierman, thank you for joining me here at the Round Table.

Glenn Bierman: Thank you for having me.

Noah Bolmer: Absolutely. Let’s jump into it. You have a diverse background ranging from telecommunications to investment banking. How did you first become involved in expert witnessing?

Glenn Bierman: My first career was as a kindergarten teacher. I taught kindergarten for two years. Then, I couldn’t find work in technology, and ended up on Wall Street. Being a kindergarten teacher taught me, was the best education for Wall Street because every investment banker, broker, and investor I spoke with had the attention span of a 5-year-old, and if they didn’t get the value proposition in the first three sentences, they were gone, so it’s helped me through my career. I evolved from that to working with attorneys asking me if I [could] get involved or a friend saying, “I have a friend that got hurt in the market. Can you help him with the FINRA arbitration?” I evolved into it.

Noah Bolmer: When you say you got involved in arbitration, tell me about that.

Glenn Bierman: Since I was the principal and head of compliance at my own investment bank, I understood FINRA rules, regulations, and laws. An investor, who had lost his whole portfolio through his broker came to me and I instructed him to first, notify the firm that you have a dispute, and you want to arbitrate through federal arbitration rules. And they can’t ignore that. The process has started.

Noah Bolmer: Many people don’t know that expert witnesses are sometimes used in arbitration and alternative dispute resolutions. Have you acted as an expert witness in an arbitration or in an alternative dispute?

Glenn Bierman: Right now, I’m involved with a JAMS arbitration. It’s between an investment banking firm and a public company. And so yes, I’m an expert witness for this JAMS arbitration. I’ve done a couple of JAMS arbitrations, a couple of AA arbitrations, and a handful of FINRA arbitrations.

Noah Bolmer: How is working on alternative dispute resolution such an arbitration compared to being a conventional expert witness in a conventional action?

Glenn Bierman: It’s the same, but the subject matter might be different. If it’s arbitration, there’s a little more flexibility, but typically- well, let me separate it. If it’s a true FINRA arbitration, there’s a finer arbitration process. In the case of the JAMS arbitration, I’m working on right now, the investment banker, took my client to court, and then in court they said, “It says in your agreement that you’re going to arbitrate.” The judge said, “Go arbitrate and come back if you can’t figure it out.”

Noah Bolmer: For our audience who isn’t familiar with FINRA, could you briefly describe what that is?

Glenn Bierman: It’s basically the financial industry’s self-regulation organization to make sure they’re following all the rules, regulations, and laws. They’re supposed to do enforcement as well. When I would run my firms, they would audit my firm every year to make sure they were doing everything right. They also have a very refined process for FINRA arbitrations, whether it be between an investor and a firm or a firm and a firm, there’s a whole process that’s automatic process in the financial industry. They don’t go to JAMS. They go to FINRA arbitration first.

Noah Bolmer: During an arbitration, is there an attorney or is there somebody else representing the client?

Glenn Bierman: Typically, there are multiple attorneys, financial experts or expert witnesses depending on what the subject matter is.

Noah Bolmer: Are there reports that are written like an expert witness would write for report on a conventional action?

Glenn Bierman: Oh, a hundred percent. The reports are no different because it’s all about the subject matter, whether you’re talking to arbitrators or a judge, it’s the same kind of report.

Noah Bolmer: Today’s primary topic is expert reports. Walk me through your process for writing an expert report, starting with are you typically on a team of expert witnesses where you might be collaborating to generate an expert report, or are you doing solo work or a solo section?

Glenn Bierman:  No, it’s on the subject matter expert’s work. It’s not a matter of other experts working on it. I do, however, hire my own support. As an example, I was given four days to do a report over a weekend, so I asked my partner, Mitch Silverman, who compliments my expertise and investment banking background as well, to help me. What the process is really is, you start with research. You research through FINRA, SEC, and all the related agencies. You put your report together based on research, and then you get to a point where you can have your findings based on the research you do.

Noah Bolmer: How do you present those findings in a matter that your audience, be it just the judge if it’s a bench trial or the jury, the opposing counsel, or whoever else might read it? How do you present it in a way that is reliable, trustworthy, and at the same time understandable?

Glenn Bierman: Well, that’s interesting. A report is dry, as you know. I’ve always found that visuals are great aids.

Noah Bolmer: Sure.

Glenn Bierman: They don’t have to read the words. They could look at the picture. In one of the cases, I was involved with an individual investor who lost a bunch of money from a broker. When I got into the research, I said to my client, “It looks like the signature on your original application when you opened your account is different than the signature on the option agreement.” It turned out that the broker had forged his signature, and I hired an expert witness writer to analyze and prove it was in fact, that. I want to say that it was under a $500,000 claim. Once we saw that, and I realized that the broker used emails and phones, there was this little law called the RICO Law which he violated by forging and then using e-mail and phones to perpetuate his felony, which is two felonies. I put a motion together on behalf of my client, invoking RICO, and asked them to raise the claim to $5,000,000. All three arbitrators agreed, and instantly I got a settlement.

Noah Bolmer: Would you say that’s fairly typical where an expert witness brings in a team of their own? When doing so, do you need to get some kind of signed approval from your engaging attorney?

Glenn Bierman: Oh, without a doubt. You don’t do anything without your client’s agreement. In that particular case, if it were a Round Table case, I would ask Round Table to find me a handwriting expert for the case.

Noah Bolmer: Sure. Let’s talk a little bit about the writing itself. Considering confidentiality. Do you have any good or specific editing techniques that you like to employ?

Glenn Bierman: One of the techniques I always use is to have somebody who’s not an expert in the subject matter to read it because if they get it, then you wrote it the right way.

Noah Bolmer: I’m assuming you’re talking about somebody who’s a layperson, vis-à-vis your subject matter.

Glenn Bierman: Right. It could be a friend. You say, “Could you read this and tell me if you get it?” But I won a couple- in the case of forgery, I did a visual presentation that showed the actual forgeries, and if the judge or jury saw it, they instantaneously got it. Sometimes pictures are worth one thousand words and sometimes you just do the report.

Noah Bolmer: Let’s talk about these visual aids. How do you go about developing them? Do you use an outside company or do you do them yourself?

Glenn Bierman: I do them myself. I’m a detail-oriented guy, and although I take the view from the airplane when I explain things. I try to dissect them so that anyone looking at them gets it easily. That goes back to my first career as a kindergarten teacher.

Noah Bolmer: Of course, you can certainly understand pictures before you can read.

Glenn Bierman: One of my recent cases was interesting. It [involved] an investor who put about $6 million into a public company, and he got scammed out of it. There were auditors involved as part of the case. It’s a very deep case because there are twelve defendants. This report was for the auditing firm. After doing my research, I found out that one of the firm’s principles was barred for life by the SEC from being in order in public companies. Then I found half a dozen actions from different organizations against these auditors. Basically, when I put that all together, the report said it for itself. I didn’t need pictures.

Noah Bolmer: Absolutely. When you say you were doing research, was this with respect to the documentation that’s provided by the engaging attorney, or is this outside research beyond that?

Glenn Bierman: Oh, it’s way beyond that. In all fairness to attorneys, they don’t have the subject matter expertise in capital markets, as I do. I look at it differently; my approach is to go look at SEC enforcement and FINRA actions. There are a slew of places I go, but I take it one step further, Noah, in the case I just spoke about with the twelve defendants, what I tried to do was match the defendant’s connection to say, the auditors. Do you see what I’m saying? I was trying to connect the dots that more was going on, that the auditors weren’t truly independent because they knew some of these other defendants.

Noah Bolmer: Yep.

Glenn Bierman: You have to go beyond to get to the meat of the matter and help your client win the case.

Noah Bolmer: It sounds like you take a fairly proactive approach in assisting your client, and eventually the end client, right, in proving their case. While an expert witness is bound to neutrality, how do you square that? How do you stay neutral and accurate while assisting your client in those sorts of situations?

Glenn Bierman: Well, very simply, just give the facts and the facts speak to the case. But the key is finding facts the attorney never saw or knew to look for it.

Noah Bolmer: I’d like to back up to when you were talking about outside research. How do you bill for that? In other words, when you are first designing your billing contract with the engaging attorney, do you set aside a certain number of hours or pertinent research that might be required for the case? Do they ever get sticker shock that you had to go out and do outside work?

Glenn Bierman: It’s not outside work. I’m going to outside sources. If I go to some of the legal sources, they charge me a minimal amount, a couple of dollars, to pull down documents. As part of the research I do, I go into the dockets and read the docket information and what’s been filed to get a better idea.

Noah Bolmer: Right.

Glenn Bierman: There is always sticker shock, Noah, if they don’t know what to expect. The problem is it’s hard for me to say, “Oh, it’ll take me 10 hours to do research” because I opened these wormholes to see if they lead somewhere, and many don’t. But then I strike gold, and I find some that do. It’s hard to tell them how many hours it’s going to be before you dig in.

Noah Bolmer: That brings up the vetting process. When they are making their initial phone call to you to decide if you have the appropriate expertise to help them during the case. How do you define what you expect the workload might be for a given case before you get started?

Glenn Bierman: What I typically do is have a conversation with the attorney and I tell them exactly what my plan of action is going to be. I apologize because I can’t tell them how many hours it’s going to take, but I have to start digging in to find that. Sometimes, unfortunately, you don’t find what you think might be there because it’s not there. Obviously, they’re going to pay for your time but not get what they need. That has rarely happened to me. I have to say I’ve always found other information they can use to create counterclaims.

Noah Bolmer: Do you have a specific form of contract that you use? For instance, if a case moves to settlement but you did a lot of work, do you take a retainer or use any other protective means in your contracts to insulate you from those situations?

Glenn Bierman: Yes. I’ve been learning myself. I require a retainer, and I started doing a small retainer, but I bought through that so quickly so I’ve upped my retainer. The other issue you have as an expert witness is you do the work, and there’s not enough meat to help their case and then they don’t feel like they have to pay you. You have to make sure to stay ahead of that by being paid first.

Noah Bolmer: Absolutely. Let’s get into the mechanics of expert witnessing. Once you’ve written your report, you might have a deposition. What is your strategy for depositions? How do you handle the stress or the anxiety of being peppered with a lot of questions?

Glenn Bierman: Typically, you get interrogatories before you get that position so you already see the questions you answered, and your client usually helps you through the questions if there are any issues. There’s nothing to embellish. You did a report. It’s the facts. This is what I found. They’re trying to attack your credibility, but you can’t attack what’s already been documented not by me but by other authorities.

Noah Bolmer: Have you had to withstand Daubert or similar expert witness challenges, where they say that you’re not an expert, or you’ve misapplied something, or you haven’t been doing this long enough, or anything like that?

Glenn Bierman: What else would an attorney say if they don’t have anything else to say? Litigators say if the facts are with you, argue the facts. If the facts aren’t with you, argue procedure, argue credibility. You always have to deal with that.

Noah Bolmer: In this online era, where people are always posting on LinkedIn, Facebook, Instagram, and whatnot, do expert witnesses need to worry or carefully consider the things they post online because they might be used to impeach them for those sorts of reasons?

Glenn Bierman: Oh, 100%. I mean any kind of social media can come back and bite you, without a doubt. Fortunately for me. I’m a bit older so I’m not the one who takes the TikTok or the Instagram photo. I mean, I’m lame with those. I don’t use TikTok, and I don’t understand Instagram but I do understand LinkedIn. Those things will come back and bite you.

Noah Bolmer: Have you ever faced a situation where someone has tried to impeach you for something you’ve said before, either by removing contexts or you’ve just changed your opinion on something?

Glenn Bierman: I’ve gotten more of that they tried to discredit my opinion by saying it was inaccurate. Well, it’s not accurate for their case, but it could be accurate anyway.

Noah Bolmer: Do you rely on your attorney to clean those sorts of things up, or do you have a strategy that you use when you’re faced with those sorts of questions?

Glenn Bierman: Well, I kind of know in advance with the interrogatories where we’re going. One of the keys as an expert witness in a deposition is before you answer, take a breath, and give your client the ability to object before you answer.

Noah Bolmer: Do you have any preparation strategies for those sorts of things? For instance, have you done mock cross-examinations or anything along those lines?

Glenn Bierman: Clients typically want to have a free conference before the deposition– call it a rehearsal basically.

Noah Bolmer: Do you find that helpful?

Glenn Bierman: Oh yeah, definitely helpful.

Noah Bolmer: Are there any other strategies you would recommend that newer experts use when going into a deposition, cross-examination, or anything like that that has assisted you throughout your career?

Glenn Bierman: I always double-check my work before a deposition and also make sure I didn’t miss anything. I do that so that I’m comfortable that I can stand before them and certify what I did, why I did it, and how I did it. It wasn’t something I made up. I had an interesting case, and this was an- sorry to interrupt, Noah-

Noah Bolmer: No, not at all, please.

Glenn Bierman: It was between a funding company and a public company. The argument was about whether the deal was an equity or a debt deal. They called it an equity deal, but it was written as a debt deal. The attorneys try to argue, “No, no this is equity. This is not debt.” Basically, I just went to the definitions of equity and debt, and the kinds of transactions make it a debt as opposed to an equity. So when you have convertible securities that convert from a debt to a security that’s a debt.

Noah Bolmer: You’ve been doing this for a while now. Would you say that the role, the work, or even the expectations of the expert have changed throughout your career as an expert witness?

Glenn Bierman: I’ve learned more as I’ve gone through it. I don’t think it’s changed. The key is detailing the facts and backing them up. If you do that, it’s hard for them to impeach you as an expert.

Noah Bolmer: Absolutely. What would you say makes a great relationship between the expert witness and the engaging attorney? What are the factors that result in not only a successful verdict but a good working relationship regardless of the verdict?

Glenn Bierman: It comes down to good communication. You need to tell them when you find things that might hurt or help your client. What I typically do is give them an outline of what I found. Then, we have a conversation to see how they want me to proceed with the information I found or put it in the report. So, they can guide me.

Noah Bolmer: Absolutely. Do you have a story or two about being an expert witness where you either learned a lesson or it changed the way you approach some aspect of expert witnessing?

Glenn Bierman: I love my story, and I did a lot of work in a short time. I submitted my expert witness report to the court and within 24 hours, the opposing counsel reached out to my client for settlement. Basically, which said it all. I did a great job. It was so damaging in my report that they thought settlement was the best option.

Noah Bolmer: That’s positive. That seems to be the end goal. Many actions these days move towards settlement. I’ve heard from a lot of expert witnesses that actions have been moving towards settlements these days. Is that something that you’ve noticed?

Glenn Bierman: Well, what I notice is if they’re losing and they don’t want to pay, they’ll drag it out and settle on the courtroom stairs, if you know what I’m saying. That has happened a lot of the times. Or if they know they’re going to lose, they back off and get disinterested. But yeah, it depends on the particular case and how quickly they want to settle.

One example is when I was working for a client in a finer arbitration. I found many things that they had done wrong including failure to supervise. Several rules were violated, and I put the whole thing together. And I don’t want to name the firm, but it was one of the named broker-dealers, if you will. I went through six levels of internal lawyers that were opposing my position and then they went out and hired an outside law firm. I could say the name Greenberg Traurig and I happen to know Greenberg Traurig because they bought my first investment bank. I was quite impressed that they went through six levels of lawyers internally and then went outside for him to come up against me.

Noah Bolmer: That has to feel good. Have you worked in different venues besides FINRA? Have you worked in different states or federal jurisdictions?

Glenn Bierman: Let’s go back to my background, and I started in technology. I wrote my first business plan and got to Wall Street, and every investment banker and equity fund guy I met was so impressed with my knowledge they’d hired me to do due diligence on funding deals or going public. I realized pretty quickly I was on the wrong side of the table. They were making a lot of money and I wasn’t making that, so I started my first investment bank. From there, I’ve been a CEO and board director of public and private companies and I think that’s a really unique position for me sitting on both sides of the table because I understand both sides of the table.

Noah Bolmer: How do you, as an expert, not even an expert witness, stay abreast of the different laws, rules, and regulations across different venues and the changing laws in any single venue?

Glenn Bierman: That’s a full-time job for ten people. When it comes to projects involving a certain area, one that just happened to me recently was the rules and regulations regarding underwriter compensation. What I do is FINRA puts out notices and the SEC puts out notices that update the law’s rules, etcetera. That’s the time where I dig in to find the related subject matter and what’s changed in that subject.

Noah Bolmer: Do you go to any seminars, trade shows, or courses to stay up on anything? Do you do anything formal like that?

Glenn Bierman: I do that for my investment banking, not for being an expert witness. It’s more relevant to my investment banking than it is to expert witnessing. As an example, I’m a technologist. I used to go to the Consumer Electronics Show (CES) because I would see all the new technology.

Noah Bolmer: Before we wrap up, do you have any last advice you would like to give to expert witnesses, newer experts in particular?

Glenn Bierman: Again, I’ll say take your draft report and have a novice read and see if they get your points or points because if they do, then anyone else reading it will do the same.

Noah Bolmer: Mr. Bierman, sage advice. Thank you for joining me today at the Round Table.

Glenn Bierman: Thanks for having me.

Glenn Bierman, Founder, Tycon Partners

Glenn Bierman is the founder of Tycon Partners, a full-service management consulting advisory firm. He is an experienced expert witness with over 30 years of experience in a range of capital markets matters, both at trial and in alternative dispute resolution.