In this episode…

Most experts in the trusts field are attorneys as well, while the retaining attorney may not be a trusts expert, according to guest Mr. Gregory Herman-Giddens. This presents an opportunity for the expert to help “pick apart” the opposing side’s arguments in pleadings. Attorneys appreciate experts who leverage their expertise to find these opportunities in this manner.

Check out the entire episode for our discussion on billing, working in different states, and work-life balance.

Episode Transcript

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Gregory Herman-Giddens, Trust, Estate, and Tax Attorney, President of Trust Counsel, and President of Trust Protector, LLC.

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today’s guest is Gregory Herman-Giddens. He is a trust, estate, and tax attorney, President of the Trust Counsel Law Firm, and President of Trust Protector LLC, which provides trust protector services domestically and abroad. Additionally, Mr. Herman-Giddens is a sought-after expert witness and he specializes in, of course, trust and estate litigation cases. Mr. Herman-Giddens holds a JD from Tulane. Mr. Herman-Giddens, thank you for joining me today at the Round Table.

Gregory Herman-Giddens: Thank you. Glad to be here, Noah.

Noah Bolmer: Of course, let’s jump right into it. You’re an established attorney with over 30 years of experience, but I’d like to focus on your expert witness experience. How did you first become involved in expert witnessing?

Gregory Herman-Giddens: It’s a little fuzzy at this point, but it was about twenty years ago now, fifteen perhaps. A colleague in North Carolina had a trust litigation case where his client was accused of breaching her fiduciary duty, and he reached out to me knowing that I was an experienced trust attorney. I don’t know if he reached out to me just for advice or if he reached out directly to say, “Could you be an expert?” In any event, it did come to pass that I was an expert in this breach of fiduciary duty case for the defense. It was an interesting case, and I had a lesson in the enviable position to try to defend what this person had done as a trustee. I’m usually on the other side, but at this time, I was the expert for the trustee’s attorney and the woman who had been accused of the breach.

Noah Bolmer: That’s interesting. You talked about- obviously, there are experts on both sides. What are some of the differences between working for the defendant’s side and for the plaintiff’s side?

Gregory Herman-Giddens: I’d say that was the only- that first one was the only time I have worked for the defense. Ever since then, I have been an expert for the plaintiff, which is either a beneficiary, more than one beneficiary, or someone who has taken over as trustee after the misbehaving trustee is no longer serving in that role. In most of the cases where I’ve served as an expert for the plaintiff where the trustee has been accused of breaching fiduciary duty, it’s quite egregious. It doesn’t make my job easy, but I don’t have to struggle to find ways to convince the court that there was a breach. Whereas the first matter that I had was a lay fiduciary, somebody who didn’t have any training as a fiduciary, and was not an attorney. I think she did. In fact, breached her fiduciary duty. I tried to make it seem like no harm, no foul. That was what I did, and interestingly enough, in the first hearing, the court found in our favor. No breach. Then, somehow the plaintiff was able to have the matter reheard on some grounds, which I don’t call at this point. I testified in that hearing as well, but at that time, it did not go in my client’s favor. She was found to have breached her fiduciary duty because there wasn’t much of a defense. The difference was the first time the plaintiff did not have their own expert, but the second time around [they did], so it wasn’t me trying to convince the court in a vacuum that this breach hadn’t occurred off, or if it did there was no harm.

Noah Bolmer: Do you find that a significant portion of an expert witness’s work is rebutting what the other expert witness is saying?

Gregory Herman-Giddens: In my experience, no. I’m not an expert who has done dozens of matters. I’ve done about ten. Usually, after I produce a report, or even after I’m disclosed as the expert, the matter ends up settling.

Noah Bolmer: Okay.

Gregory Herman-Giddens: I haven’t gotten to the point where I’ve had to see a report from an expert on the other side and try to say, “This is wrong in this way.” Now, I do a lot of times pick apart the defense counsel’s arguments in the pleadings because they are not expert attorneys, but they’re not expert trust attorneys. That’s something I do is say, “This defense is not valid because of this or that.”

Noah Bolmer: Even though a lot of cases, especially now, are going to settlement, do you always prepare as though the case may go to a jury or bench trial?

Gregory Herman-Giddens: That’s a good question. I’ve got to walk a fine line because I’m always cognizant of the fact that my clients are attorneys, and their clients who foot the bill. I don’t want to run up tens of thousands of dollars in expert fees if I think it might settle. I do try unless I know we’ve got something like a hearing scheduled or the trial is scheduled and it doesn’t look like it’s going to settle. I will typically take it one step at a time.

Noah Bolmer: Is that part of the initial phone call when you are first vetting the attorney, and they’re vetting you, and you’re deciding if you’re appropriate for the engagement? Is that part of the calculus, the likelihood that it might settle?

Gregory Herman-Giddens: I would accept a matter either way. I don’t know how other experts feel, but I relish the chance to go to court or to be deposed. I also dread it because I don’t know if you’ve ever been cross-examined, but it is not a fun experience because you’ve got an attorney trying to make you look like a stupid fool. While you might be able to showcase your expertise it also can be a humbling experience, and not all that pleasant. That’s why a lot of experts charge more for being deposed and testifying because they can be tough.

Noah Bolmer: Let’s dig into that a little. What are some of the strategies that experts can employ? Obviously, it’s never going to be a happy walk in the park but to help mitigate some of that anxiety and be well prepared for the types of questions that they’re going to get in a deposition or in a jury trial.

Gregory Herman-Giddens: Preparation. You want to make sure you’ve done any necessary research and are confident in your opinions. Usually, by that time, a written report has been prepared. Hopefully, in the process of preparing that written report, you’ve done a lot of that background work and feel well-prepared to be questioned. It is like the attorneys who are prosecuting the man and defending the matter, it’s about preparation and knowing your stuff.

Noah Bolmer: Are there specific preparation techniques that you find more effective? In other words, something like mock cross-examination? Is that something you’ve been involved with?

Gregory Herman-Giddens: I have not done that. I’ve had conversations with the attorney who is employing me and what his or her thoughts are about what lines of questioning will come from the opposing attorney. I can certainly see where that would be helpful in a very high-stakes case where it’s expected that the cross-examination may take a long time. [It] might be hours. It’s a very tiring experience, and it can wear down the best of us to be on the stand for hours. In the news now, we’ve heard about Michael Cohen being cross-examined, and I don’t know if any of that testimony was available to see live, but I could just imagine him even as an attorney himself it’s like-

Noah Bolmer: Sure.

Gregory Herman-Giddens: -oh, after hours of [testifying], I just want to fall away.

Noah Bolmer: He was grilled for quite a long time. There are no cameras in that courtroom, but that’s what the press reported. Let’s talk a little about how the role has changed. You said you haven’t been an expert witness too many times, but it’s been over a good amount of time. Have you seen significant changes in expert witnessing, either in moving to settlement more frequently or more technology being used? In other words, things like Zoom meetings are being used more or anything like that. Have there been changes that have changed the way expert witnessing works in general?

Gregory Herman-Giddens: In my case, nothing significant other than with my first couple of expert matters, there was no such thing as attending a hearing remotely. They had video depositions, but it was unheard of to have a hearing or a trial where everybody wasn’t in the same room. I have a case I’m involved in now where the trial was supposed to be in April, but it got continued and a few weeks before we needed to start getting ready for the trial, the attorney said, “We don’t know yet whether this is going to be in person, virtual, or partly in person and partly virtual. I don’t know when I’m going to get it. Am I going to be cross-examined through Zoom or something else? That is new. I have not yet had the experience of having to testify remotely but that [will] come.

Noah Bolmer: Even though you haven’t done it remotely as both an attorney and as an expert witness, how do you feel that could impact the overall case? Does that type of eye contact through a camera make a difference to the judge or the jury? In general, does that make a difference to the way you would approach the case?

Gregory Herman-Giddens: A little less worried about body language and things like that, although some of that can be picked up on video anyway. I think that’s more of a concern for the attorneys to try and figure out what’s going to make the best impression on the judge and the jury if there is a jury. Obviously, I would want an expert from my side to prevail, but I don’t have the stakes involved that the attorney who hired me does.

Noah Bolmer: Sure. When you talk about wanting the case to prevail, the duty of expert witnesses is to tell the truth to the court and to neutrality. Whereas the attorney’s duty is to their client. How does an expert witness square that? How do you simultaneously do the best job you can for the person who hired you while maintaining your commitment to neutrality and the truth?

Gregory Herman-Giddens: That’s a good question. Obviously, I don’t think anybody could be an expert on trust matters without being an attorney, but my training as an attorney helps me. We all learn even if [we are] not in practice.

Noah Bolmer: Sure.

Gregory Herman-Giddens: In law school, we’re taught you have to be able to argue both sides of the case and you can’t misrepresent the facts or the law. You just have to make a creative argument that you think is not a misrepresentation of the facts of the law. It’s something that is potentially plausible. It may not be immediately apparent that it could be the case, but you’ve got to do the best you can and you never want to misrepresent anything. That’s drilled into us as attorneys and as an expert witness. It causes me to worry sometimes if I feel like I don’t have a strong position, but I’m happy to say I’m never tempted to stretch the boundaries too much. I would love it if I could find a good argument that is not necessarily viewed as being mainstream. That would help my client. That’s something I will do, but certainly would always want to stay on the straight and narrow.

Noah Bolmer: Do you feel that attorneys sometimes try and nudge you as an expert a bit too much one way or the other, or do they allow you to remain neutral without too much pressure?

Gregory Herman-Giddens: If you’re talking about the attorney who’s [hired] as an expert. I think they will definitely say we would like you to be able to state this but if they would-

Noah Bolmer: Sure,

Gregory Herman-Giddens: -but if it was something with which I wasn’t comfortable. I would just push back and say, “I can’t. I’m sorry, that’s not going to work. They have ideas about where they’d like you to come out. I’ve never had a situation where I felt pressured or felt that the attorney was getting beyond the bounds of zealous advocacy, and trying to make me do something with which I wasn’t comfortable.

Noah Bolmer: I’ve heard from a number of expert witnesses that sometimes they receive a deluge of paperwork, and it can be overbroad at times. As you were saying before, you don’t want to charge a trillion dollars to read a bunch of irrelevant stuff. How do you separate the proverbial wheat from the chaff when you’re deciding what exactly to get ready for, research, and prepare for prior to writing your expert report or going into a deposition?

Gregory Herman-Giddens: It’s best if the attorney can point out the most important documents to review, particularly in a case where there are hundreds of documents. One issue on my part would be [whether] I have the time to review all this and then do I want to bill the client for all this work. Some of this stuff is not necessary for me to review. In my current case, the attorneys were great; they gave me a list of all the date-stamped documents, and they said, “It’s best if you review these, these, these, and these.” Of course, I looked at all of them. There were [some] I could look at and say, “I don’t need to spend a bunch of time reviewing this. I’m going to concentrate on [those] they suggested I spend the most time on.” I don’t know that I would be comfortable as an expert to ignore certain documents because the attorney told me they weren’t important. I’m going to want to check them all out, but I will rely on the attorney to say, “This is most important.”

Noah Bolmer: Let’s talk about getting paid with contracts [and] attorneys. Do you typically include any specific language to protect you [if] the case moves to settlement, but you’ve done a lot of work? For instance, do you take a retainer? Do you prefer to bill an hourly or project rate or does it vary depending on the case?

Gregory Herman-Giddens: It does vary sometimes if you’re working through an expert clearing house. They help find experts for folks. Oftentimes, they don’t want you to charge a retainer and they’re the intermediary between the expert and the attorney, so you don’t bill the law firm or the attorneys directly. You bill the expert clearing house, and in that case, you have to know that you can get a retainer, but they usually don’t want it to be nonrefundable. I will get a retainer, just knowing that you know if I don’t use all the retainer, and then the case settles, there’s nothing. Then I will refund the rest. My preference is to have a nonrefundable retainer, which I do if I’m hired independently because expert witness matters can be time-consuming. If I accept one, I have to adjust matters I accept in the future, and that could lead to a loss of income-

Noah Bolmer: Right.

Gregory Herman-Giddens: -so that’s the preference. I say, “I charge fifty to seventy-five hundred or whatever it is upfront. If you settle the next day or say you don’t need me, that’s great. But I’m keeping the money [because] I may have turned down another matter.”

Noah Bolmer: Let’s talk about the work-life balance. As you said, sometimes an expert witness engagement can go longer than expected in those initial phone calls. How do you manage to maintain a career as an attorney while simultaneously having commitments to things that have potentially long lifespans, without knowing how many hours it’s going to take, what sort of issues are there, and how do you deal with them?

Gregory Herman-Giddens: You have to be willing to put in the necessary time because sometimes the attorneys don’t give you a lot of leeway. They don’t give you a lot of advanced notice. They say, “We need this report in a week or that which is not ideal. For the last report I did, I spent at least a whole weekend, several early mornings, and nights trying to get it completed, and it was turned in the morning it was due because I’d do a draft, send it to them, and they would ask other questions. Of course, I had to review all the documents, so it was reading the documents, going back to the report, and looking at the pleadings. It takes a tremendous amount of time. I did put in a lot of extra hours that week because I had my practice, and I had to do all that work and then push to get the expert witness report done. I’m used to having to do that type of thing sometimes with my practice, and I think most of most attorneys are, but it’s not ideal. Hopefully, if you’re taking on expert witness matters, you’re making adjustments in your practice, so you do not have to work a significant amount of extra hours.

Noah Bolmer: Have you worked across different venues? In other words, have you, as an expert witness worked in state, federal, and regulatory, or have you stayed in one venue?

Gregory Herman-Giddens: It’s always been state court. Federal courts don’t deal with trust issues, and there are no administrative hearings. It’s state courts. I have served as an expert in several different states. It doesn’t have to be a state where I’m licensed. That might be helpful, but I’ve been an expert in North Carolina, Florida, Michigan, and California.

Noah Bolmer: For an expert witness, are there considerations you have to take into account when accepting an engagement that’s out of state? Do you need to know something about Florida trust law if you’re coming from North Carolina? Is it not important, or is it just a matter of what your attorney tells you need to know?

Gregory Herman-Giddens: In my last engagement, I asked him, “You know because you looked at my background. I’m not licensed in Michigan. Does that make a difference?” They’re like, “No. These are general principles of fiduciary law.” There may be some statutes involved, but again you have to be an attorney to be an expert on trust law. I’m comfortable looking at other state statutes and at least determining what it means. Most state laws that have to do with trustees and fiduciary duty are similar. I would say to anybody out there who wants to start as an expert, don’t feel like you have to be limited to your state of licensure.

Noah Bolmer: Let’s move to a couple of general topics. What is important? What is fulfilling and what is also subjectively important about being an expert witness and about just the existence of expert witnesses to you?

Gregory Herman-Giddens: Honestly, it’s nice to be known as an expert.

Noah Bolmer: Sure.

Gregory Herman-Giddens: In my case, it could potentially help my practice as a trust and estate attorney because I think people looking at it would say, “This guy knows his stuff because he’s serving as an expert in litigation involving trusts and estates.” It’s a bit of an ego boost. You can have that hammered down by opposing counsel sometimes, and then there are interesting issues involved in a lot of these cases too. Many of them are family issues where you’ve had a family trustee steal money or invest in an incredibly poor way. Sometimes you have a corporate trustee who’s done something wrong. I’ve had attorneys with big firms- a lot of times you think all these big nationwide firms can do no wrong, but that’s not true. There are attorneys in these firms who charge their clients a lot of money but end up colossally screwing things up on a fiduciary basis as well as a legal malpractice basis. It’s nice from that standpoint. It’s interesting work, and like me, you can feel that when you’re on the good side, you’re helping these parties that were wronged.

Noah Bolmer: Absolutely.

Gregory Herman-Giddens: But if you’re on the so-called bad side, it can be interesting and intellectually challenging to try to defend against these accusations and allegations. So, while I’ve only done that in this one case, [it] was interesting to try to think of some arguments that would help my fiduciary.

Noah Bolmer: What makes a good relationship between an expert and an attorney?

Gregory Herman-Giddens: Good and frequent communication. Responsiveness is important because despite the fact that I enjoy working with the attorneys in my current case, sometimes their responses haven’t been very timely. The fact that they’re litigators is an excuse, at least to some degree, because they would be in court for days on end. If you have a team of attorneys and assistants that you can connect with, that helps. If you’re not getting a response from someone, you can reach out to one of the other team members.

Noah Bolmer: Speaking of teams, have you worked on teams that have other expert witnesses, not just a trial team, but multiple expert witnesses for the same matter?

Gregory Herman-Giddens: Yes, I have.

Noah Bolmer: To what degree do you interact and collaborate with them?

Gregory Herman-Giddens: So far, there has been little of that, and I think part of that may be that our issues aren’t all that related, or part of it may be the stage of the case. Now, my current matters are on hold, I don’t know that the judge has even- I would hope that they don’t have a trial date yet because nobody has told me. Here’s an example that was less than stellar communication. There was a hearing in April to determine about continuing the trial, and that date came and went. A couple of weeks went by, and I never heard from my team, so I was like do we have a trial or not? Finally, I had to reach out to them and say, “Look what’s going on?” They said, “No, we don’t have a trial date yet.” That’s an example from the attorney side, just keep your expert informed. I think from the expert side, if you are getting hung up on an issue, a timeline, or a deadline try to make sure you keep your earnings a surprise because they don’t want to get jammed up on the day before the deadline and know you’re not going to have your report ready.

Noah Bolmer: Absolutely. Before we wrap up, do you have any last advice for expert witnesses, particularly newer experts?

Gregory Herman-Giddens: I would say you have to decide if you want to be an expert. You have to have that experience and credentials. If you’re a year out of law school, you’re not going to be an expert witness, but if you’ve got a decade or a couple of decades of experience working in trusted estates. Particularly if you have board certification and or an advanced degree and that’s something you think you may want to do. Just put yourself out there. Things may come to you once you get one under your belt. It may be a smaller matter. Then you’ll have that one experience as an expert and you can draw on that the next time. In my case, it’s helpful to have drafted trusts, represented trustees and also served as a trustee myself. I’ve done all of those things. If you have a well-rounded background in trusts, that would be helpful. My primary area of expertise is breach of fiduciary duty and things related to trusts, but even within the trust and estates realm, you don’t have to focus on that area. You could be an expert on the use of powers of attorney, for example. I did have one expert matter that related to a power of attorney.

Noah Bolmer: Good stuff. Mr. Herman-Gibbons, thank you for joining me here at the Round Table.

Gregory Herman-Giddens: You’re welcome. I’ve enjoyed it.

Noah Bolmer: Absolutely. Thank you to our listeners for joining me for another Discussion at the Round Table. Cheers.

Gregory Herman-Giddens, President, Trust Counsel

Gregory Herman-Giddens is a trust estate and tax attorney, president of the Trust Counsel law firm, and President of Trust Protector, LLC, which provides trust protector services domestically and abroad. Additionally, Mr. Herman-Giddens is an experienced expert witness and holds a JD from Tulane.