In this episode…

Our guest, Professor Robert Romano advises experts to learn about a case before accepting, “I want to know more about your case. I want to know what you know what side you’re on . . . If you’re to defend, what is your position on this? Why are you defending this?” He also advises attorneys to make sure experts understand if a settlement is imminent, “You should have told me this beforehand, before I started . . . doing a deep dive. I think that serves the attorney’s clients.”

Additional topics include cross-examination, preparedness, and getting paid.

Episode Transcript:

Note:   Transcript has been lightly edited for clarity

Host:  Noah Bolmer

Guest: Professor Robert Romano, Assistant Professor at St. John’s University, Sport Management

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer. Today’s guest is Professor Robert J Romano. He is an assistant professor at St. John’s University in the Division of Sport Management and an adjunct professor at Canada’s Quinnipiac University. He teaches a diverse course load on a range of topics, from ethical and legal considerations in sport management, sports history, and sports social media. Additionally, Professor Romano maintains a robust legal practice with over 25 years of experience focusing on transactional law, mainly for a client base of entertainers, sports figures, and businesses. He is a well-published author and a sought-after critic, advocate, and experienced expert witness. Well, Professor Romano has a JD from Loyola, a Master’s in sports management from Columbia University, and LMs from both St. John’s University and Instituto Superior de Derecho Economia in Madrid. Professor Romano, it is an absolute pleasure to have you on the show today.

Professor Robert Romano: Thank you for having me. I appreciate it. I like the way you pronounce the name of my university. Most of the time, people just look at it and go, okay.

Noah Bolmer: I have to take every opportunity to practice my Spanish that I can.

Professor Robert Romano: Fantastic, that was great.

Noah Bolmer: Let’s jump into it. You have been teaching and advocating in the sports field for decades. Have you always had a passion for sports?

Professor Robert Romano: I was an athlete. My passion started when I was an athlete back in high school and college. I played football and I ran track. I got asked to play at Springfield College in Massachusetts. I played at the university until I got hurt. Then, you know how the process works, once you are injured things disappear like your scholarship or tutors, the better meals, or whatever that is. I saw things from a different perspective of what happens to athletes once they are no longer a value to a university.

Noah Bolmer: Did that drive your advocacy?

Professor Robert Romano: I think as I got older and reflected on it, I looked at it from a different perspective as I educated myself and I was like,  “Oh, wait a minute. Are we supposed to take care of our student-athletes? Are we supposed to take care of our students? Aren’t they students first before athletes?”

Noah Bolmer: While your experience as an athlete led you into something sports-adjacent, why teach?

Professor Robert Romano: That is a great question. I did not know I wanted to teach. I was at Columbia University getting my master’s in business administration with a concentration in sports management at Columbia and the director of the program came to me and said, “You know what? I would like you to teach the sports history class.” I was like, “I am not going to do it. I have to practice. I am taking these classes. I do not have time for this.” He goes, “No, I want you to do it. I am going to slide you in for next fall semester,” and that was it. I started teaching sports history and I found out that I enjoyed it. I found out I was pretty good at it and wanted to continue. I continued teaching at different universities that next semester. I went over to St. John’s and talked to their director, Glenn Gerstner at the time said, “I am interested in teaching here.” He was like, “You do not have any experience,” I said, “Well, it is all one class that’s enough.” Lo and behold, the professor who was teaching the sports law class bowed out at the last minute, I had three days’ notice, and I was slotted to teach sports law at St. John’s. That next spring, Glenn Grosser called me the night before classes started, and said, “We got hospitality law too, so I am going to slot you in for that.” That was back in 2011, and I have been at St. John’s pretty much since then.

Noah Bolmer: So, this is before you acquired your J.D.

Professor Robert Romano: My career is kind of weird. I went to undergraduate school at Springfield College and got my J.D. at Loyola University in New Orleans. Then I did what every good law school graduate does, I did not practice law. I was a comedy writer and did comedy for a few years. I did stand-up improv. I think some of us here have done some improv. I wrote comedy, wrote scripts, and that kind of stuff. I circled back at one of my reunions with the guy I played football with at Springfield. He was like, “You are in the entertainment world. I am in the sports world. Let’s combine forces and see what we can do.” That is when I started, working on the agent side. I became a certified National Football League (NFL) Representative. It was during that time frame I said, “Well, you know what? To better serve my clients. I should go back and educate myself a little more.” I went back to Columbia and got my master’s degree at that time. I did that for years. I wanted to give my clients more value. I thought that would be interesting. I would educate myself, then I could educate my clients, and then the teaching came into it. That is where I went back again and got my LLM in international where it is low. I felt that would be added value because in academia the J.D. is a terminal. But sometimes Ph.D.’s. I am not going to say they look down on it, but they look down on it. So, I figured, I have this opportunity to get my LLM and it is something I am passionate about. I might as well get it done and I spent about a year doing that.

Noah Bolmer: That is quite a circuitous route. You are not the only one. I am a J.D. who is conducting a podcast with expert witnesses. So you never know.

Professor Robert Romano: I told that to my class. You never know where you are going to end up. You never know where your career is going to lead you. Some doors will open that you may want to step through. The traditional graduate does that kind of thing.

Noah Bolmer: Did your career as an expert proceed, or did it happen after you had established a law practice?

Professor Robert Romano: When I started practicing law, I was asked to be an expert in different areas. Then, the requests shifted predominantly to sports. I would say all my experience now as an expert is in sports. Before that, it was varied, but now it is definitely in the sports area.

Noah Bolmer: Before becoming an expert witness, had you, as an attorney, employed expert witnesses? You were familiar with what works and what does not, right? You knew what to expect as an expert witness. That is not a position that many experts that I have interviewed have had that perspective. How are those two things different? What would you tell yourself as an attorney and as an expert? What are the things that attorneys can do to better prepare a new expert that does not have that experience?

Professor Robert Romano: I think letting them in on the timeline they will need to follow when the case is accepted by the court. It is important to let the expert know these are the dates we must get discovery, depositions, and our pleadings done by our final close. I always ask for trial management for whatever jurisdiction I am in. So, I know, okay, we are still in the discovery phase. This is where I need to be in the drafting of my expert report. I know that my deposition is going to be coming up, now we are getting into that phase, let me finalize my report so I am prepared. So, when I get that call on Friday saying, “Yeah, you are getting deposed on Tuesday.” I will be like, “OK, I am good.”

Noah Bolmer: What are the questions that experts should be asking their attorneys when they get that first call? When they are evaluating whether they want to say yes to the project. What are the most important things they should know? How do you know your expertise is sufficient for what they are asking of you?

Professor Robert Romano: That is a good question. I find I like a longer interview on that. Sometimes I will schedule myself for 15 minutes. They will call me up and they will say we want a 15-minute chat with you to see if you are a good fit for us. But I want to know more about your case. I want to know what side you are on. First, if you are defending, what is your position on this? Why are you defending this? I want to get into more of the facts, more of the details and then I will ask where you are in the process. Sometimes I will be retained at the beginning and other times later in the process. I want to know where we are and the likelihood of settlement. Is this case going to be settled next week or is it a case that is going to be settled on the eve of trial? Sometimes they retain me because the deadline is coming up, but they are already in settlement negotiations. I want to know that beforehand, because if I am going to put time and effort into something, and then it settles. It is like, you should have told me this before I started doing a deep dive into it. I think that serves the attorney’s clients. because now they are not paying my fee. They are maybe only paying a quarter of the fee instead of two-thirds of the fee because they let me know that they were close to settling.

Noah Bolmer: That is interesting. For payment, experts charge differently, right? Some do hourly and some do projects. Some people have different rates. Maybe if it is at the beginning of the case, it is one rate, and if it is at the end of a narrower engagement then you might have a different rate. How do you develop all of that? How do you as an expert, prepare yourself for those eventualities?

Professor Robert Romano: On the pay side?

Noah Bolmer: Right.

Professor Robert Romano: That is probably one of the most difficult things to learn. I have gotten to the point where I am going to want hourly rates for all my preparation work, and where I am in my report. I want fixed rates. If you are going to ask me to testify, that is fixed. That is going to change over, I am not going to do an hourly rate there. If you want me to testify at a deposition. It is a flat fee. If you want me to testify at trial, that is another flat fee. Let’s say I fly to San Francisco to do the deposition, or it will go to trial and settles at the trial, I am guaranteed the fee. I did not put those hours in because I did not testify, but I prepped all the time I was there and was ready to go. I am going to get compensated for my time.

Noah Bolmer: How much negotiating power does a potential expert witness have? In other words, how proactive can they be with rates and the like?

Professor Robert Romano: Leverage depends on how badly they want me. You feel that out in that initial interview. Is it just somebody they want to hire because the other side hired three experts, so we need to hire three experts? That kind of thing. Or is it that I have written in this area, and I have good expertise in this area? They want me because I am the person that can sway that jury, then you have a little more. bargaining power. I will go back and forth until we are both comfortable.

Noah Bolmer: You mentioned the topic of how good of an expert and how much expertise you have as an expert. How do you maintain that?  How do you not only become an expert? How do you stay an expert in such a broad field? You are in sports and there are a million sports out there. I am not a sportsologist, but I have heard that there are several. They all have different rules. These contracts are all written differently. You have international experience which throws even more wrenches into that. How do you maintain a level of expertise that is attractive to lawyers without spending all your time doing nothing but researching the minutia of the ever-changing dynamic of sports law?

Professor Robert Romano: I write a lot and I stay on top of the subject matter because I probably write two articles a month. I am up on current topics. What is going on in the world of sports? What is happening with the coach, I am not going to name any names, in New York that were terminated. What was the crux? What is that appeal about? Not the deal. What is that arbitration about? Those kinds of things. I write consistently about things. I like to hear what other people say and what their opinions are because they may have something that I have not thought about. I think those are two ways that I go about making sure I am on top of what is happening. My specialty is more in value and the value of an athlete if they get hurt or if something tragic happens to them. What is their actual value?

Noah Bolmer: I see.

Professor Robert Romano: I mean it is a sport, but it is whittled down within sports.

Noah Bolmer: There is general applicability to that, right? Just about anybody in any field should be going to conferences and staying up on things in authorship. That is important, right? Would you say that doing a good amount of writing keeps you not only on top of the current topics but also in the view of people who might use your services? Is that also an advertisement of a type?

Professor Robert Romano: It is creating awareness about yourself. Occasionally, I get a call saying, “Hey, Rob, I read your piece in the Sports Business Journal, and let’s have a conversation about it. Do you have time to chat with me about this?” I say, “I will be happy to.” That happened about 4-6 weeks ago. I got a call from an athletic director up in the northeast. He called because he did not understand something about international athletes. “Do you have a couple of minutes to chat with me?” That kind of stuff. I think keeping your name out there so people are, “Oh, yeah, it is our model. He is writing about this stuff. He is the man I want to talk to.”

Noah Bolmer: Do you find that your name gets out there in that manner once people start using you? Do you kind of develop a reputation for being a good expert?

Professor Robert Romano: I think that is part of it. Being there and doing the work when you are asked to be an expert. You are creating a report that makes sense. Does reading the other experts’ reports and evaluating what they have to say influence you?  At least I know what the perspective is from a different viewpoint. I think it is important but that is just me.

Noah Bolmer: Let’s talk about some cases. Can you talk about any cases that you have been involved in? Our listeners know that we cannot give specifics. There is legal peril in getting too specific. But are there any interesting or unusual situations that you feel have some kind of general applicability to potential expert witnesses and attorneys?

Professor Robert Romano: In general, I would be happy to talk about things that I have seen. I think one of the more interesting things that happened was I got a call in the late afternoon to be an expert on an issue and they were like, “OK, but our hearing is tomorrow at 3:00 via Zoom.” I am like, “Okay.” It was in an area that I was familiar with, but I wanted to do some research on it and the attorneys met with me around 6:30 or 7:00 that day. We met for an hour, and we got an understanding of where they wanted to go with the case and what the issues were. I prepped that night and was ready to go the next day. That stuff is going to happen. It is not going to happen often because this was not a trial. It was an administrative hearing and I think at the last minute they got called in and were like, “Well, we don’t have an expert in this area. Let’s get somebody.” In all honestly, I had a blast doing it because it was a laid-back administrative hearing. The administrative judge was interested in what I had to say about the subject. It was like, “Tell me more about that. How do you know? Why do we do that this way?” The history because there is a history to why we do things in sports and the administrative judge was interested in that and that made it fun for me. Not like I was educating the judge but you just letting the court know that this is why we do things differently in sports.

Noah Bolmer: That is interesting. I have talked to a good number of experts and some of their advice is not to offer any more than what is asked. Has that been your experience as well? In the situation you were talking about, the judge was specifically asking for that. So, of course, you offered it up. But, in general, is that what you would advise?

Professor Robert Romano: You do not want to open the door to something that may harm a client. You do not want to do that, and you do not want to do it on cross-examination. You keep it simple. Let the attorney work for the answer. if they do not do their homework and they do not work for it.

Noah Bolmer: A significant portion of your work has been going to trial. Have you had to deal with much cross-examination?

Professor Robert Romano: Not much, but I have been cross-examined several times.

Noah Bolmer: What kind of strategies do you employ for that? How do you stay calm, cool, and collected during cross-examination?

Professor Robert Romano: I get prepared. That is the only thing you can do. You have to read all the expert reports. Understand where they are going and where they came to their conclusions. I will do some background on them, because their sources may not be all that good, or they may be great. I do not know, but they may say, “Well, our expert disagrees, and this is why I am like, “Well, that is a ******** report.” So, I am not going to agree with them. I think staying on top of what the other expert’s reports are and then doing a deeper dive into how they came to their conclusions helps you.

Noah Bolmer: That is an interesting topic. Not only are you obviously in opposition to the attorney on the other side, but to the witnesses that have. They have probably done their oppositional research on you because they are going to try and impeach your expertise. I guess all of the things that you talked about come together as a bulwark against being prepared, being an actual expert in your field, and understanding the specifics of the case.

Professor Robert Romano: It is an interesting story. I was involved in a trial where I was an expert on one side and my former professor was an expert on the other side. That was fun because you know, when he was up there, he was saying, “I thought I taught him better than that.” He said that in court. Anyway, he is a great guy, and I was kind of laughing about it. That is an interesting dynamic, having both of us, the teacher and the student, as experts made me proud, and I think it made him proud also.

Noah Bolmer: That is great. Before we wrap up, I do want to pivot to just some general advice. I have spoken to many experts who have told me what makes a successful relationship between an attorney and an expert. As both an attorney and an expert, what are crucial pieces of advice that you would give to both attorneys and experts, Especially, newer experts who are not sure what they are getting themselves into? What are the most important things you would like to drive home?

Professor Robert Romano: There are two things; communication and respect. Have open lines of communication. We all understand many things are going on, but if you retain me as your expert, let’s have an open dialogue. Then, respect between the attorney and the expert is important. If you show respect, you will get respect back, and you asked about that for cross-examination too. I respect the other side. I respect that they are working hard, and I think that when I show them respect, it is hard for them not to show me respect. I always show deference to the court, but always show deference to the attorneys. For the most part, they are working hard. I think that is important also. So, communication and respect.

Noah Bolmer: That is great advice that is going to wrap it up for us today. Thank you, Professor Romano, for joining me today. I hope our listeners will join me again for another Discussions at the Round Table.

Professor Robert Romano, St. John's University

Our guest, Professor Robert Romano is an Assistant Professor at St. John’s University in the Division of Sport Management, an adjunct professor at Columbia, and a transactional attorney in sports and entertainment. Professor Romano is a leading authority on the ethics of sports contracts, with over 20 years of teaching, writing, and advocating; and is a sought-after expert witness. He holds a JD, multiple LLMs, and a Masters’ degrees from multiple prestigious schools.