In this episode…

Experts have the opportunity to aid in the discovery process, because they possess industry experience “beyond the ken” of laypersons, according to guest Mr. Robert Borders. Attorneys do not always know what they don’t know, and therefore, may have missed an opportunity to discover evidence that the case may turn on.  

Episode Transcript:

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Robert Borders, Marketing Consultant, Optimal Business Solutions

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today’s guest is Mr. Robert Borders. Mr. Borders is a long-time marketing consultant with Optimal Business Solutions, specializing in customer interactions, process efficiency, and all aspects of direct marketing. Mr. Borders has assisted customers in a broad range of industries, ranging from entertainment to healthcare and beyond. He is a sought-after expert witness with over 30 years of experience. Mr. Borders, thank you for joining me at the Round Table today.

Robert Borders: Thank you. Glad to be here.

Noah Bolmer: Let’s talk a little about the expert’s role. We talked and emailed a little about what the expert’s role is vis-à-vis the attorney. The expert’s job is not to interpret the law. That is the attorney’s [job]. I’d love to hear your thoughts on what exactly the expert witness’s role is.

Robert Borders: When I’m retained, I like to lay out exactly what everybody’s role is, just as you mentioned. At no time do I ever talk about the law or reference the law unless the attorneys have told me to do so. What I bring and tell them is I have the industry experience that they lack. In order to be an expert, you have to have knowledge that’s beyond the ken of the normal person. In that role, what I like to do is talk about such things as industry standards and give examples of companies that abide by those standards, so that if it’s a jury trial, they can make a relation to what’s going on. I like to talk about- when discussing with attorneys I like to find out what has been done with regard to discovery. The reason for that is, in some ways, the attorney doesn’t know what he doesn’t know. [From] a legal perspective, I don’t know what I don’t know. We both have that issue. That’s how I try and separate the two roles.

Noah Bolmer: Let’s talk about those vetting phone calls. Because as you stated knowing what they don’t know and not knowing what they don’t know may be beyond the ken of the attorney. How do you know that you are the correct expert witness given the fact pattern that the attorney presents to you?

Robert Borders: There are two things I do when I get the first call from Round Table or whomever. First, I ask, “Is this all that you have?” There may be more information and the more information I have, the better equipped I am to help the attorneys and become the expert. As an expert, it depends on whom I’m talking to. If it’s the attorney I point out that I’m not going to talk about any of the legal issues, but there are some things that I believe are relevant and germane to this matter that you don’t know and here are some examples. Usually that ends up making what’s supposed to be a 5-to-10-minute call and turns it into a thirty-to-thirty-five-minute call. I have no problem doing that because I’m educating the attorneys to some degree. It can also turn around and kick me in the **** because they pick up items they haven’t discussed and as they speak to other potential experts, they’ll ask questions about that.

Noah Bolmer: As a neutral expert, how do you square that with also wanting to assist the attorney who hired you?

Robert Borders: The case I’ll use is the one that involved Publishers Clearing House around the turn of the century, everybody-

Noah Bolmer: They’re the ones who bring the big check to your door, right?

Robert Borders: That’s exactly right, and you got a mailing- at least six or seven mailings telling you that you were the winner. As we were discussing this with the attorney and the group that was bringing us together, I had to point out that [Publishers Clearing House was] looking to accomplish two things. One is this deceptive advertising set. This is misleading advertising and there is a difference. I said, “Yes, that’s great but you’re missing something else and that is they’re targeting seniors.” Their response was, “We know that, but we can’t prove it.” Then I said, “It’s not that difficult to prove. There’s a company out there called SRDS, and what they have is a compendium of all sorts of lists.” At the time, it had e-mail and direct mail information and anything like that. Now it would have more website information, but then you could get a list of a list of a list. If you wanted a list of people over the age of sixty who lived in a neighborhood with three cars in the house and two kids in the house and he was a graduate of this type of institution, you could get the list of people such as that. What I did is I said, “I can look at- if you still have discovery open, look at these lists, and we can determine where one of the selects they have is age. By doing that we can then zero in on the fact that they’re targeting senior citizens.”

Noah Bolmer: Do you recommend that sort of proactive approach where the expert should be looking for holes or opportunities for the attorney who may not even realize something like that?

Robert Borders: As I mentioned, they know the law, but I know the marketing aspects of it. In this case here they wanted to prove that there was targeting done to seniors, but they had to give up on it because they didn’t know how [to prove it.] If I can assist in that and bring something to their attention, everybody will win in that situation.

Noah Bolmer: Tell me a little about the behind the scenes when you’re not in a deposition or in court. What is the interaction like with the attorney? What is that strategizing like? How do you organize your time, what you’re going to say, and what you’re going to do prior to getting into the courtroom or whatever venue you’re doing a deposition?

Robert Borders: There are three different ways we have those discussions. One is if I’ve written a report. If I’ve written a report, then outside the deposition, there’s a lot of strategizing and discussing about, “Why I put that in there? Should we leave it in there? Should we gloss over it, or should we support it?” So that’s the first one. If there is a report, it’s a lot different situation if there isn’t a report. The second is if there is no report, I will ask the attorneys, or they will tell me, “These are the three major points we want to develop when we go into depositions or trial.” The last one is what I call “word on the street”. It’s when the attorneys and I have heard things, and we have discussions about [what we heard.] The attorneys can’t bring it into the case, but I can. They will sometimes say, “Well, while you’re talking about A see if you can slip in something about Q.” Those are the type of interactions we typically have in a non-deposition or trial situation.

Noah Bolmer: You mentioned report writing. Do you have a report writing strategy? Is there a way that you like to organize your reports? Do you like to use multimedia or images or anything like that in there?

Robert Borders: All the above. For my reports I do have a format that I like to use. The first is why I was retained. What the matter is? Next, I will give some background on who I am and how I’m relevant to this matter. Then, typically I’II- not solely, but I typically work with defense counsel and in that matter, I look at what the charges are, and I then write what I can to not necessarily refute them, but to point out the holes in whatever the charge is.

The second thing I like to do is try and find examples of people in the industry or individuals who have had some trial experience where it’s- “I don’t want the case law. I just want to be able to go on to the Internet and find something that’s relevant to try and include that.” And then at the end, I will try to summarize all of that where applicable. I do try to use charts especially if it’s a jury trial because when you’re up there talking for X number of hours. The jury is- some of this is going over their head, whatever. If you can show a chart, graph or photo that sums up an hour of your testimony, the picture works very well so, I do include those.

Noah Bolmer: Do you develop your own graphics?

Robert Borders: When you say graphics, no I can barely write my name. But what I can do is I’m good with stuff like PowerPoint. In my business, I learned to become good with that. I can use that to highlight important points or refute points.

Noah Bolmer: Besides a multimedia approach, as you indicated, how else do you connect with the jurors? How do you keep their eyes from glazing over with jargon?

Robert Borders: I like to tell stories that everybody can relate to. There was one matter, an individual- a criminal matter in federal court. An individual was running a $100 million business by going to people who had poor credit, offering them an opportunity to build their credit rating and giving them a bogus credit card. I explained the way they did this. They would call somebody up typically between the hours of five in the afternoon to 8 or 9 p.m., while somebody was eating dinner. Then they threw out this thing about giving them a store value credit card, which will help them, blah, blah, blah. The example I used with the jury was, “Imagine you’re sitting down at the table. You’re married and playing with the kids. Your wife’s cooking, having food brought in regardless of the situation, and you sit down in front of your dinner. As you take your first bite of food, along comes this phone call, and for 90% of the population, phone calls take over whatever you’re doing. You go right to it. I explained that in the marketing world that’s referred to as “between the bite and the pork chop” because you just had this bite. You’re trying to swallow this whatever, and you’re talking to this guy when he starts mentioning we’re going to improve your credit. We’re going to give you a credit card, which is something they’ve never had before. I tell them the story. The guy is looking at his dinner and thinks this is great. He says “yes” but doesn’t realize what he signed up for. He hangs up the phone, comes back to the dinner table, and says to himself or his family, “This is going to be great. We’re going to have better credit rating, and I’m going to have a credit card.” I look to the jury and said, “I’m sure that you’ve had a similar situation happen.” The jury sits there, and you can see them nodding their heads. At that point I remember the federal prosecutor looked and said we had the case gone as soon as I did that. I like telling stories that the jury especially, or the judge, can relate to.

Noah Bolmer: That’s a part of what you do for a career. Marketing is telling a story to potential customers. What are some of the takeaways? What are some techniques that non-marketing professionals with storied careers can take away to communicate with juries and judges more effectively during bench trials or even at depositions? What are some of those storytelling techniques that you can use?

Robert Borders: The first is to look at it from the point of the common man. I don’t care what type of case it is. I’m sure you can find or can easily think of something that the common man has gone through or understands, and as soon as you do that, it’s much easier to tell a story. When I’m meeting with my attorneys, they’ll sit there and say, “Okay, well, if you’re doing that be concise. Don’t go on for half an hour.” They like that. One of the things I find is if you have a good story, the attorneys will put that into their presentations or summations. So it works well for everybody.

Noah Bolmer: You’ve been doing this for a while. Have you noticed any trends in the world of expert witnessing? In other words, have things changed? Are we moving towards more depositions? Is there more of an online component? Have you noticed any significant changes from when you started expert witnessing?

Robert Borders: There’s definitely- online well- everything used to be in the courtroom now it’s via Zoom or some other platform where you’re doing a lot of stuff like that. So that’s one. I think that is the most [used] format. The other thing that I’m seeing is because of the Internet. People on either side of the aisle, and I’m not talking about the attorneys, I’m talking about the witnesses or expert witnesses, but they are turning too much of what they’ve read on the Internet into fact when it’s not fact. It’s more opinion. If you can identify that in advance, let the attorney know. There are all sorts of objections, but I have to watch out that I don’t do the same thing. So, it’s good. Or the judge can point it out. The biggest thing that I see is the difference between what is a fact and what is all of a sudden [considered fact but was an opinion on the internet.]

Noah Bolmer: Have you been subject to what is colloquially known as a Daubert Challenge, although it’s not always technically a challenge for your expertise?

Robert Borders: Yes. Many times, in fact. The one thing I keep coming back to is the knowledge I possess is beyond the ken of the normal individual. And somebody- I didn’t graduate college. I have six years of college, but I don’t have a degree. During any Daubert challenge, that’s the first thing they like to point out. “He’s not even a college graduate.” If you have smart attorneys, [they will] say, “But neither was Einstein or Edison.” Something like that. Right away the other side comes back and says. “So, you’re saying that your expert is Edison?” You have to be careful, but I mean I, pick the areas that I believe the average [person] does not have any experience or expertise and I just stay with that.

Noah Bolmer: Sure. To bring it back around with what you were saying about people getting information randomly off the Internet. I was just thinking to myself, I don’t know if that would survive the Daubert Challenge well, right? If they’re saying, “Where did you get this information that you plan on presenting to the court?” Then [you say] “I read it on ‘Joe’s Great Tips’ web[site].”

Robert Borders: Typically, you find it after somebody on the other side has become the expert and makes comments. Depending on how much information you have taken in during the deposition, you can have a lot of fun with that. If you have a lawyer who likes to be sarcastic it can be fun. If there’s somebody who likes to go right to the facts, that’s a different story. One way or the other, it’s good to point that, and I have to be aware of that also.

Noah Bolmer: As somebody who has been doing this long enough. Do you worry about things that you post on social media or things that you’ve written that your opinions or the technology has changed or something else is coming back to bite you during those sorts of challenges?

Robert Borders: What I do in the business world, I don’t put on social media. Has technology changed things? By all means, I used to be involved in- people were using phones to scam, and then they passed the Telephone Consumer Protection Act. I was considered an expert in that [area]. Today, nobody cares about that. That’s been a change to something I wrote about. Yes, their marketing was deceptive because they said this on the phone, but you don’t see that anymore. It’s all [about] whatever was in the e-mail or what was on the website.

Noah Bolmer: Has technology changed either the amount or types of cases that you are an expert in? For instance, you might not want to travel ten states away, but you are able to assist in a Zoom meeting. Is that something that’s affected your career at all?

Robert Borders: Not really. Right now, I have over a million miles on United Airlines [from] my work.

Noah Bolmer: So, you’re willing to fly?

Robert Borders: It’s not even that I’m willing to fly. It’s just that, I’m used to flying.

Noah Bolmer: Speaking of venues, you have worked in a number of different venues as an expert witness. Are there significant differences in working for, say, state versus federal or other venues that have thrown you off or surprised you in some way?

Robert Borders: I don’t know if it’s called surprising, but in a federal venue, there’s more money to be spent, which is the first thing, so better digs.

Noah Bolmer: Sure.

Robert Borders: That’s one thing. The other thing I find is that when you’re in a state, there can be anomalies in “state A’s” law that varies from the forty-nine other states. That’s one thing I don’t have to worry about. The attorneys worry about it and they tell me. But the attorneys who are resident in that state have a field day, because they’re waiting for somebody to step in their traps. In the federal court, you don’t see as much as that. In federal courts, in my opinion, decisions are challenges to objections are heard right then and there. There’s not so much of in the chambers type of stuff. I see more of that in state courts than I do in federal.

Noah Bolmer: Do you feel that the attorneys typically do a good job preparing you for any important differences in a venue that you haven’t previously worked in?

Robert Borders: Absolutely. The first couple of times I was an expert, I sat for 15 to 20 hours and did not charge for it. I wised up quick. Yes, there have been two or three matters that I can relate. One was I live in northern New Jersey, and the case was being held in Philadelphia. For the better part of three weeks, I was making the two-hour one-way drive to Philadelphia, to spend two or three hours talking about this point in what our case was. There’s a fair amount of that. In my opinion, if you have a good attorney, one of the things they’re going to want to do is spend time with you to get everybody on the same page.

Noah Bolmer: One of the things we emailed about prior to the show was, speaking of timing, attorneys contacting you with sufficient time to do your part as an expert witness. Whether that’s writing a report or [gathering] all of the paperwork and information and reading about the case. Do you feel that in general, you do or don’t have enough time to do your part as an expert witness when you’re brought onto the case?

Robert Borders: There are three answers. One is, where I do have enough time. Where I definitely have enough time. The other is in which, I think I have enough time, but as I delve into the case further, I say, “We have an issue here.” And I mentioned before discovery, that’s where I say, “There’s more work to be done” and they say, “We have a trial date of blah blah, blah.” Then I [reply], “I’m going to have to hire additional help or you’re going to have to supply somebody for me.” The last one is “We’re on a tight schedule, but if you need more time, let us know.” I find that most of the time I’m given sufficient time, but I’m going to say 20% of the time, especially if it’s- the larger the case, and when I say larger, I’m not just talking about dollars, but the larger the impact of the case result there tends to be more time allocated for it.

Noah Bolmer: I’d like to ask about a couple of general matters. One is being an expert in your particular field. Advertising is extremely broad and your expertise within that field is also broad. How do you stay up on things in a way that you continue to be useful as an expert witness as the industry, the marketplace, and the laws change?

Robert Borders: First of all, I don’t have as much work as I used to, but I think that’s in general. The other thing is it’s simply reading and staying up with what’s new. The publications that used to be a thing called Ad Age or AD Week, they’re both around, but they have much less items. You really have to hunt for information. One of the things you can do is if I’m being told, “Listen, somebody is interested in you for this.” I start paying attention to what’s advertising. I’m lucky in that- I guess about close to 40% of my career was in business-to-business advertising versus business-to-consumer. Living an ordinary life watching TV or whatever, you’re going to see what’s happening in terms of the marketing and advertising. There’s a new term that’s coming out now, and it could get people to go to the store and buy more. It’s the BOGO, buy one, get one. That’s a real big thing now. There are people who think that’s doing nothing more except deceiving the customer. Because if they had a price on week one of $0.79, and next week it’s $1.79, and then when you buy one, it’s $1.15.

Noah Bolmer: Absolutely. Another general question that I like to ask is what is important about this work that we do as expert witnesses? Why should people be expert witnesses? What is the public good? What is the utility of expert witnesses to you?

Robert Borders: I started to mention it first. What you’re doing is going after the truth. I use Publishers Clearing House as an example. What you’re doing is helping the average person. That’s another situation I was involved and this happened to be a direct mail situation. They were capturing information, and there’s a certain amount of Private Confidential Information (PCI) and they were offering you something that you never got. But by the time that happened, they had all your information, and they then sold that information. You get bombarded with junk mail, emails, and the like. I’m trying to help the average person avoid some of that. And I think that’s the reason I do it. I also think that you can help the attorneys because they’re a major part of this. Then again, you’re helping the overall citizen.

Noah Bolmer: You are somebody who is still heavily involved in your field, while simultaneously working as an expert witness. Is it important to be active in your field as an expert witness because there are a number of “professional” expert witnesses? Do you have an opinion on that?

Robert Borders: I’m not a “professional” expert. I’ve come across them on numerous occasions. One of the things that I have done in the past is read their CVs, and you can see that there’s one or two common things they do in every case, even though the issues in the case may be different. I try and point that out to the individual who’s making the decision or the attorney, depending on who it is. Unless you’re doing small claims court or stuff in a local situation, there’s no such thing as it’s the same case. There’s always something that’s a little different. I think that’s one of the things that you can point out with the people who are “professional” experts. The CV is flying out. They send out three a week, regardless of what’s happening. One of the things I get from everybody that I’ve worked with, from attorneys general to attorneys, is I get a reference saying this is what I did, this is how I helped blah blah blah. And I make sure that those are included in anything that I forward.

Noah Bolmer: Having worked on some larger, more complex cases, have you ever worked on teams with other expert witnesses?

Robert Borders: Yes, the case I mentioned before was in federal court. The individual who was being charged believed he was helping people to the point that he would give away money to fund this charity. Now he was making hundreds of thousands of dollars a year and he’s giving away ten or twelve thousand dollars to a charity. One of the things they did- he was saying was, “Everything I’m doing is for the good of the people.” They brought in a psychiatrist to read things in his depositions, spend time with him, and run through them. They then brought in an individual who was running a legitimate credit improvement business, and they would talk about the differences between the individual business versus what his business was. And at that point, the attorneys would come in and say, “What was the role that I played?” I said. “I’m not an attorney, I’m not a judge, but I can tell looking at these two things from the marketing perspective, this is good and this is bad.”

Noah Bolmer: Sure. When you work with other expert witnesses, to what extent do you interact with them, or do you interact with them, strategize with them, or share any report writing duties with them?

Robert Borders: Usually not. There was one instance where I wrote a report and the attorneys who were handling the case passed the report on to another expert, not asking for her opinion but simply saying this is what’s going to be presented at trial.

Noah Bolmer: In general, when you or a team are working with an attorney, what are the factors that lead to a good, mutually beneficial experience? In general, what makes a quality engagement in your opinion?

Robert Borders: That the attorneys have done their homework. I’m serious about that. That in addition to having done their homework, I have enough time to meet with them to ensure that we’re all on the same page. Every matter I have been in where we’ve won there are always two or three things in advance that the attorneys want to have brought in. I’ve also been in a case where they say, “No, no, no, you’re fine, but you have your report. We’ll handle that.” I feel in that situation, I’m flying without any support.

Noah Bolmer: Before we wrap up, do you have any last advice for newer expert witnesses in particular?

Robert Borders: As I said at the start, their role is the law. Your role is the business you’re in. Make sure that they understand your role and don’t be afraid to tell them what you are going to need in order to help prove this case. Don’t be bashful about it.

Noah Bolmer: Sage advice. Thank you, Mr. Borders, for joining me today.

Robert Borders: Great. Thank you, Noah.

Robert Borders, Strategic Partner, Optimal Business Solutions, Inc

Mr. Robert Borders is a longtime marketing consultant with Optimal Business Solutions, where he specializes in customer interactions and process efficiency in all aspects of direct marketing. He has assisted customers in a broad range of industries, ranging from entertainment to healthcare, and beyond. Mr. Borders is an experienced expert witness, with over 30 years of experience.