In this episode…

The work of expert witnesses is important, and our guest, Mr. Keith Mallinson, considers the oft-maligned system of litigation in the United States to be essential. He considers the work of experts to be a bulwark against abuse, especially in the antitrust and IP areas of law.

Listen to our full discussion for topics including working with different styles of attorney, engagement contracts, and coordinating with other expert witnesses.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Keith Mallinson, Founder of WiseHarbor

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome Keith Mallinson to the show. Mr. Mallinson is the Founder and President of WiseHarbor, which specializes in solving commercial problems in wireless and mobile communications. Additionally, he’s an author and a sought-after expert witness with over 20 years of experience, Mr. Mallinson holds an MBA from London Business School. Mr. Mallinson, thank you so much for joining me here today at the Round Table.

Keith Mallinson: Good to speak to you.

Noah Bolmer: Excellent. Let’s jump into it. You have a background in Electrical Engineering, industry analysis, and mobile communications. How did you first get into expert witnessing?

Keith Mallinson: I was working as an industry analyst for a major industry research firm based in Boston, MA, and my firm got approached. [They] were looking for an expert witness who knew the cellular industry, and I stepped up to that.

Noah Bolmer: Excellent. Did you have somebody mentor you or show you the ropes?

Keith Mallinson: Certainly not within my firm. Sometimes, my firm did some expert witness work historically, but I got no mentoring internally. However, I got a lot of mentoring, assistance, and support from the counsel I was working with. I would say that has been the case throughout my career, working as an expert witness. The attorneys I’ve worked with have been excellent in terms of coaching me, coaxing me, and developing me, so that’s been helpful.

Noah Bolmer: Let’s dig into that a little bit. What are some of the helpful things they told you for an expert witness, especially a newer expert witness? What is some good advice that you have received?

Keith Mallinson: It can vary depending on the case, for example, when one is preparing for a deposition. When I can remember this early on, having submitted an expert report, maybe a rebuttal, and I’m being deposed, I’ve got all these things that I want to say. I’m bursting with all these ideas and things that I want to get over and the attorney brings me back and says, “We don’t win the case in the deposition.” He was saying it more as a kind of damaged limitation exercise and coaching me to try to stick to the questions. It [allowed] them to develop your answers to make sure they can’t leave a misleading impression on the record, for example. You’re not there to help the opposing counsel. That’s not the purpose of the deposition. That has been a useful guideline. However, with one attorney I can recall, many years later I was encouraged to do the reverse because of the nature of the case they would never expect to go to trial. He encouraged me to be verbose, talk a lot, and get more onto the record because he felt it would be useful in what he had to do on the legal front, knowing that we were never actually- he thought it extremely unlikely that I would ever be testifying in trial.

Noah Bolmer: That’s interesting. Is that advice you’ve used in other cases or a niche incident?

Keith Mallinson: I think it’s kind of a one-off. But now, when I’m preparing for the deposition- in fact, I was preparing recently for one. I recounted that tale and said, “Which category are you in?” And this recent example, they were clearly in category one that they wanted me to take the more Orthodox approach to sticking strictly to what was being asked about and limiting- keeping my responses fairly narrow, but still encouraging me to expand when necessary to ensure that the right impression a full account and a full explanation was given.

Noah Bolmer: Sure. What are some of the first things that you talk about? You get the call from an attorney and you’re considering an engagement. How is that process? What are the things that you consider? What are the things they consider? How do you decide whether or not to accept an engagement and how do they decide whether or not to accept you as an expert?

Keith Mallinson: When I’m approached, sometimes the people approaching me, maybe at some agency and they’re completely off target. Because it’s the technology industry, they assume that they need a technical expert and they’re really just- maybe it’s a bit of a shotgun approach. They’re just hoping I happen to have the specific technical expertise they require. Maybe they haven’t done their homework. I don’t know, maybe the lack of understanding and it’s not a mismatch, so I get some of those. But what I do find particularly the ones that just seemingly pop up completely out of the blue. I think it’s where the attorneys particularly have done their due diligence or their research work carefully and they actually know from looking at my resume and looking at the many publications I’ve written, they know exactly where my competencies lie. And I find that many times there’s a very good fit and right from the get-go. But still, when I’m speaking to them for the first time, I make sure that I’ve done my homework, and normally what I need to do is remind myself of the part of the industry they’re interested in. My expertise spans quite broadly across the whole of the cellular telecommunications industry and I go deep in certain areas, but I’m quite broad. And sometimes, I need to refresh my mind about certain areas if that’s their particular interest because I want to make sure that I have relevant examples to talk about companies in the industry, things that are current developments, and- or such like.

Noah Bolmer: You are in a broad industry and your knowledge is so broad, how do you know what to focus on? How do you remain an expert in all of these different areas, especially in a dynamic field such as yours where not only is the technology changing but the legal framework itself is changing? What do you do to stay abreast of everything, and how important is it that you do so?

Keith Mallinson: Well, again, I’m not a deep technical expert so in each area, there may be a lot of very specific things to know. But I’m a commercial expert and I understand how the whole ecosystem works and how different parts of it play with each other. For example, in a dispute between- I’ve done several cases in the tower industry. The cellular towers where mobile phone operators collocate their equipment. In contractual disputes, it’s important for me to have a good background understanding of the industry for telephone collocation, but also for the mobile operating companies that are on that collocation on those towers. So, we’ve got two different segments within the same industry and how they play with each other. So, it’s important to have an understanding that spans across those two. That’s certainly how my expertise has been applied. So, it’s difficult and I keep myself abroad, but I do go deep in certain areas, and they do span right across the cellular industry. I’ve tended to limit myself to cellular telecommunications, but within it, I have my industry expertise. I also do quite a bit of economic and financial analysis including damages, assessments, valuations, and such.

Noah Bolmer: Sure. I’d like to back up for a minute. When we were talking about those first calls, once you’ve decided to take on a client, do you add any specific terms in contracts? Is there anything that you like to do to protect yourself or that works better for you to make sure you get paid on time? Anything like that?

Keith Mallinson: Well, I find that generally speaking, the topflight law firm’s engagement letters are pretty good because they’ve been here before and I’m generally happy with them. But there are things that I will do. Sometimes with some assignments, I will insist on having a non-refundable retainer fee. If I’m concerned that I’ll be engaged, but I’ll never be given any work to do, just to be put on hold. I don’t want to be a free option to be taken out of the frame, so I can’t testify for the other side, for example.

Noah Bolmer: Your time is valuable, right?

Keith Mallinson: I wouldn’t want to be in that position, so sometimes I have that. Other things in terms of my liability, I seek to limit that to no more than my fees. Aside, fraud or gross negligence can have that caveat there, and I do, and I volunteer that if I haven’t done that, then my maximum exposure is going to be the limit of the fees that I have invoiced. And that’s tended to work. There’s one other thing that I would now put in. I’ve learned of late that I have not been paid by clients by anything other than electronic transfer for I think more than a decade, but I have come across a client that has preferred to pay by check. I’m not geared up for that and it can add another 30 days before you can get your hands on the cash. I think in the future I’m going to insist on electronic payments as a matter of contract.

Noah Bolmer: It seems a little archaic at this point, doesn’t it? Let’s talk about being an expert witness, a little more generally, what do you find meaningful?

Keith Mallinson: That’s a big question. I believe that litigation is essential. Some people are critical of the United States as a litigious society, and lawyers make a lot of money. There’s a lot of criticism of that. But I think it is an important check that is required on commerce. If there weren’t antitrust laws, if there weren’t patent infringement restrictions, I think there would be abuse. I think litigation is important. I feel what I do regardless of which side I’m working for, it’s an essential activity. It’s worthy and that makes me feel that my work is worthwhile.

Noah Bolmer: You said regardless of which side you’re working for. You’re talking about the defendant or the plaintiff. Something a lot of people don’t realize is that as expert witnesses sometimes you get plaintiff cases and sometimes you get defendant cases. Do you have a different approach that you take between the two or is it largely the same?

Keith Mallinson: I don’t know whether I’d say there is a different approach. I’ve worked on both sides because- I mean, I publish a lot of material. I’ve read many reports, go to my website, there are floods of them. And my opinions, and my position on certain things are fairly clear. For example, I’ve done a lot of work in the area of standard essential patent licensing and the kind of things I’ve written have tended to be in support of the patent owner and so I naturally align with [what] I guess you would regard that as being the plaintiffs’ side. Of course, the way the litigation occurs, sometimes things are back to front, but generally speaking and by that, I mean it’s a declaratory judgment or something that’s sought by an infringer. But generally speaking, I’m on that side, there is a bit of self-selection, so it is unlikely that a company that’s infringing on standard essential patents is going to come to me to help them establish reasonable royalties for standard essential patents. It’s much more likely to be the other side.

Noah Bolmer: Sure. As I said at the at the start, you’ve done this for over 20 years now. How has the role changed? Has the work changed? Have expectations, logistics, changed? How has the job in general changed over the years?

Keith Mallinson: I don’t know.  I’m not sure that I can perceive an overall industry-wide change. Things have ebbed and flowed for me. I’ve done a variety of different cases. As I mentioned, I’ve done several in the tower industry, so I did several in the 2000s and then there was a bit of a lull. But I’ve come back and started doing expert witness work in that area again after not having done that. Meanwhile, I’ve done a variety of other cases, all within the cellular industry, and in some cases, they have to do with patent licensing. It’s really- I don’t think there’s any distinct underlying overarching trend I can point to.

Noah Bolmer: One trend that I’ve heard from some interviewees, [those] who have been doing this a long time, is that they’ve noticed more cases go to settlement than they used to. Is that something that you’ve noticed?

Keith Mallinson: I would certainly say my experience is consistent with that. I must admit, I’ve been to trial I think five times and not for a while. I always think I’m going to go to trial and [in] the 11th hour, there’s a settlement. That happens again and again, so I’m not a statistically representative sample, but certainly, my experience is consistent with that. I’ve certainly been involved in more cases that have settled in the last few years than if I go back 15 years.

Noah Bolmer: Is there a difference in your role as an expert or your preparations or anything else when you’re certain that the case is probably going to settlement?

Keith Mallinson: Well, I never know whether I’m certain- I can think of examples where it is unlikely that the case would go to trial, but others may be one way or the other. I don’t think it makes a lot of difference. What I would say in terms of preparation, getting more into the practical side of things, no matter how much you think you are going to trial, just brace yourself for the fact or likelihood it won’t happen. For example, when you’re managing your calendar, recognize that you’ve got weeks blocked out. Then all of a sudden you may find that you have no fee-earning work to do in that period of time. You thought you were going to be at trial. Book fully refundable hotels and airfares because you might find yourself having some difficulties expensing something that you’ve not actually seemingly not incurred because you’ve not taken the flights and not slept in the hotels. Be aware there is always a significant chance that they’re going to settle, no matter what the attorneys say.

Noah Bolmer: Exactly. Do you always have to prepare as though it’s going to go to trial? In other words, do you do mock cross-examinations or engage in typical preparation, as though you will go to trial?

Keith Mallinson: You certainly should, and I would say with the firms that I’ve worked with on these cases are real pros, topflight. Absolutely, your ability to be able to get a good settlement- I mean I don’t get involved in settlement negotiations, but it’s clear your ability to get a good settlement means you have to walk away from the negotiating table and walk into trial right up to the last moment. You got to be prepared to negotiate from a position of strength. If you try to economize and wing it, I think that’s a dangerous position to be in.

Noah Bolmer: Have you found yourself working with other experts? For example, you would be the technical expert. Then there might be a damages expert. Do you work with other types of experts?

Keith Mallinson: Yes, in all sorts of ways. I find on some of the cases some are of the, let’s say, not so large ones, I’m a one-stop shop. I have the capability of being an industry expert in my field, but I also have the financial and economic capabilities to be able to do valuation and damage assessments. My first case was an example of exactly that because I was valuing a cellular reseller, what would now be called the mobile virtual network operator. I applied both my industry skills and my financial and economic analysis to that. In other cases, yes, the counsel and the client will decide that they want to have a separate damages financial expert. I’ve worked on some large cases where some eminent economists have worked. I’ve worked in collaboration with big teams of economists and such like, and it works in all kinds of different ways. For example, in one case I certainly could have done the financial analysis, but the client’s counsel liked the idea of separation between the damage expert or evaluation expert and what I was doing. They felt it would be better tactically, in terms of the dynamics of depositions and cross-examination. In other cases, if you’re working with a technical expert, an economist, or whatever, they will come up with some figures and I will just rely on them. I may be asked, “Well, there’s this figure here.” You don’t know whether it’s a good number or not. How do you know it’s valid? The way I’ve worked on this is I’m relying entirely on that. That’s an input to what I’m doing. Any tire-kicking or questioning of that assumption or my model challenges the other expert. I will work in close collaboration sometimes with those experts, but sometimes, sometimes not. Sometimes, I don’t speak to them. It all depends from case to case and on the working style of counsel and how they want to run the case.

Noah Bolmer: So, experts don’t always coordinate. It’s on a case-by-case basis, depending on the facts of the case.

Keith Mallinson: Yes, it depends on what you mean by coordinate. I say that there’s coordination. When you say, “You have a demarcation.” You know what Keith does starts here and stops here and what Fred does is on that kind of dividing line. So, there is that kind of coordination or delineation. Now in some cases, I work with experts, and we have conference calls to discuss things. Sometimes that happens and sometimes it doesn’t. It all depends.

Noah Bolmer: Do you have different experiences depending on the type of case that you’re on? In other words, if it’s a class action or a tort, is it different than antitrust or commercial litigation? Does the field itself impact your experience as an expert witness?

Keith Mallinson: What’s required is different. I’ve worked on a lot of antitrust cases, but as a non-testifying expert it’s been a team effort where I’ve been working closely with the attorneys. I would say that’s where teamwork comes in. I’ve got a deep history in the cellular industry, I find with the attorneys a large part of what I do is not normally in my job description but what I do early is educate them and help them explain how this crazy, convoluted, complex industry works and what the dynamics are.  I give them technical and commercial tutorials. They’re smart people and they learn quickly. That is an important part of what I do in terms of the different cases. They are different. For example, I made the point about settlement versus going to trial. Well, class actions rarely go to trial so, it’s likely to be a settlement. That’s understood throughout the entire process- although early on I didn’t get it because I worked on class action many years ago. I’m told when the trial date is. I put it on my calendar thinking that it is going to happen. It’s only when you start having informal chats with counsel, and they say, “What’s the probability is [of it] settling or the probability [of winning at] trial?” Then you tease it out of them as to how these cases work. One thing I’ve learned over the years is it’s useful to ask counsel lots of questions and get a good understanding of what they’re concerned about. What their objectives, strategies, and tactics are throughout the whole case. Because that’s not always obvious and cases vary enormously.

Noah Bolmer: Does that kind of communication aid in making a positive attorney expert relationship?

Keith Mallinson: I think having a good relationship with the attorneys is vital and I have good relationships with my attorneys. I’ve enjoyed working with them and their partners. I’ve spent a lot of time working at the associate level and that’s been great as well because they are often more accessible. They’ve got more time and can dig deeper with them than partners. I mean it varies. It is always good to have a good working relationship at multiple levels, including the paralegals as well because they can be very helpful if you need to get a hold of more documents and help you figure out where they are and get them delivered can be useful. When I say delivered, I mean they are available online. I don’t do much on paper anymore. That’s a big change from 20 years ago. I have little to do with paper anymore.

Noah Bolmer: Do you find that it is more or less convenient? I’ve heard both.

Keith Mallinson: I find it more convenient, but now my working practice has changed. Twenty years ago, I had a little laptop and lots of paper. Now I have no paper and I’ve got 2 high-definition monitors on my desk. I’ll have different windows open and so I get a PDF, for example, of a deposition transcript or an opposing expert’s report or something like that. Then, I mark it up in yellow, but I’ll do it on the PDF, the electronic version. I find that’s useful because- you have an electronic version, and you have the search function which is extremely valuable. You can find keywords rapidly which you clearly can’t do on paper. You also have the yellow highlighting for when you’re racing your way through the document, looking for the kind of key things that got you excited when you looked at it the first time. I find that it is a better way of working than the old-fashioned way of paper. Maybe I’m lazy but I don’t like having books strewn all around the office and having to swing around from one to another.

Noah Bolmer: That’s not lazy that’s just efficient. Have you had any poor experiences- or difficult experiences, that have been a learning experience that might aid in newer experts?

Keith Mallinson: Nothing is coming to mind particularly. I think I’ll just pass on that one.

Noah Bolmer: Before we wrap up do you have any advice for newer expert witnesses that are just getting started?

Keith Mallinson: Well, just practical tips I discovered. When I’m finding my way on a case, doing my research, and I do a lot- I mean I’m looking at the case record and public sources. On occasion, I use Google and Wikipedia. People are critical of Wikipedia because you don’t want to cite Wikipedia per say. But the way Wikipedia is structured everything [must] be supported and cited. You go to the citations and lift those and use those and keep track of everything. Because nothing is more frustrating than when you’re writing something and think you had a brilliant source for that. I’m making this point and I need to provide support because you need support for the citations in your expert report and it’s frustrating when you cannot figure out where on Earth that source was. So, grab everything. What I tend to do is put a Word document up and put loads and loads of hyperlinks in there and little snippets of things that might possibly be useful. Then, if they make it to the report, make sure that when the report is filed you capture those things and print them to PDF. Some cases can go on for years, and nothing is more frustrating when you go back a year or two later and the hyperlink’s dead and you can’t find the source anymore. You have a problem trying to find the source.

It’s the same with numbers as well. I do damages and evaluations and such like. I don’t do any calculations on paper. I do everything, even the most trivial little calculations, do them on a spreadsheet. Make sure you have a source for all the numbers you input and all your variables. You must know where that number came from and why. It’s frustrating later when you go to your report and see a number you put in and you think where they derived that figure? It’s not that it’s wrong, but it’s a waste of time when you’ve got to recreate it when you did it right the first time. Make sure you’ve recorded everything. And put privilege and confidential draft work product on everything to make sure that you know- and hopefully what you’re doing in these drafts is not discoverable, but they’ll leave that to the attorneys to make sure that isn’t the case. Because you want a bit of free hand to be able to get things wrong and try to brainstorm different kinds of concepts in terms of what you’re doing with your assessments. You don’t want to be held to “Why on Earth did you think that? Why did you consider doing it that way, Mr. Mallinson?” Well, I really didn’t consider it. It was trying out a few different approaches to doing evaluation or such like.

Noah Bolmer: Sage advice, Mr. Mallinson, thank you for joining me here today.

Keith Mallinson: Thank you very much.

Keith Mallinson, Founder, WiseHarbor

Our guest, Keith Mallinson is the Founder and President of WiseHarbor, a wireless industry analysis and consulting firm. He is a writer and industry-leading authority in mobile communications, with over twenty years of expert witness experience. Mr. Mallinson holds an MBA from London Business School.