In this episode…

Don’t overload the judge or jury, advises guest, Mr. Garth Gartrell. He recommends choosing and focusing on only the most salient points. Expert witnessing is a teaching experience, and it is crucial to express your opinion clearly and efficiently to your attorney, the judge, and the jury.

Check out the complete episode for our discussion on compensation contracts, working on bench trials vs jury trials, and remote work.

Episode Transcript:

Note:    Transcript has been lightly edited for clarity.

Host:    Noah Bolmer, Round Table Group

Guest:  Garth Gartrell, Founder of StreeterWyatt Analytics, LLC

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and today I’m excited to welcome Mr. Garth Gartrell to the show. Mr. Gartrell is the founder of StreeterWyatt Analytics, Inc., a firm specializing in executive compensation analysis. He’s the author of Emerging Compensation for Emerging Growth Companies. Additionally, he’s an adjunct professor at Capital University and practices law on a pro bono basis. Mr. Gartrell holds a JD from Ohio State and an LLM from Harvard. He has over 10 years of expert witnessing experience. Mr. Gartrell, thank you for joining me here today on Engaging Experts.

Garth Gartrell: Sure. Thank you.

Noah Bolmer: You’ve made a career as both an attorney and in academia. How did you first become involved as an expert witness?

Garth Gartrell: You’d have to ask the people who called me. That was never something that I decided on as a business career. The first time I was an expert witness I was a partner in another law firm, and I got a call from a partner who represented Qualcomm. He wanted me to get involved as an expert on stock options and other compensation-related things. Later, I got a call from a lawyer at- actually one of New York’s largest firms that went bust. Prior to that, they had a case where they represented Sequoia, one of the big venture capital firms. They had a former CEO that they had a dispute with, and so I was brought in to deal with the compensatory issues around his termination. Through word of mouth, I’ve had a continuing stream of lawyers contact me.

Noah Bolmer: You weren’t looking to be an expert witness. It just fell into your lap.

Garth Gartrell: That’s right.

Noah Bolmer: Had you used expert witnesses in your practice?

Garth Gartrell: No, because I was not a litigator. I used them in the sense representing public company boards. We would also work with consultants to [develop] compensation plans and oftentimes, they’d look to me for a referral to those kinds of people or valuation professionals in my line of work. The valuation of stock options on compensatory awards is an important milestone and they often look to me for good referrals.

Noah Bolmer: I remember when I was in law school, we didn’t talk [much] about expert witnesses. How they’re utilized, and how they’re found. It’s can kind of be a new thing. When you were first an expert witness, what was that process like for you?

Garth Gartrell: Like most people I didn’t jump into on a plan basis. I didn’t have a background, so early on I learned that you must divorce yourself from the enthusiasm of the lawyers and not let them push you beyond what you feel you can represent. In those early days, I represented things I felt I could say to a judge or jury based on my experience, but you have to learn to resist those few lawyers. Most lawyers want you to be credible and stay with things that you can defend. Occasionally, there are lawyers that want you to extend beyond your comfort zone and I would say you have to work hard to avoid that. That’s the clearest lesson I [learned]. Most of the lawyers that I’ve encountered are truly honorable in the sense they want you to be credible.

Noah Bolmer: I’ve heard from many of my guests that by and large, their experiences are positive. They want the neutral truth, which of course, is the job of an expert witness. However, in those edge cases, that is something that new expert witnesses need to be prepared for so I want to dig into that a bit. This isn’t something that comes up a lot, but it does come up. Once it happens, what are the sorts of things that those attorneys will do to push you a little beyond what you’re comfortable with? How specifically do you avoid it or deal with that kind of pressure?

Garth Gartrell: The first and second cases that I mentioned earlier had great lawyers, but quickly after that, I found a few lawyers had a preference for the destruction of the other side and the use of inflammatory language. You have to dial that back and imagine that your words are being read afterwards and you want to be proud of what you’ve said. You want your words to read like a “Golden Rule.” Treat others as you would have them treat you. Those are the kinds of instances that can get you in big trouble. [They] can get you a black mark, especially with a judge. They want to know that you’re relying on the science, but that doesn’t mean you can’t be strident in your criticism.

Noah Bolmer: Do you find that happens more, less, or about the same depending on you whether you are on the plaintiff or the defendant side?

Garth Gartrell: Yeah, I’d have to say that you get a little more of that pressure from the plaintiff’s standpoint, but as I say, I can think of defense counsel cases where that seemed to be true. As I said, most lawyers do want you to keep it at a non-personal level. They do want you to call out the weaknesses of the other side.

Noah Bolmer: When you call out the weaknesses, to what extent does the expert witness play a role in trial strategy? Are you just getting up there, talking about your expertise, and letting the chips land where they will in conversations with the trial team? Do you try and poke holes and have some idea of some strategy that might aid your attorney.

Garth Gartrell: Well, a couple of things. First, I think you have to pick your battles and another thing that I’ve learned is a trial is no different other communication. You have to boil it down to no more than four or five things of essence. I had a case early on where the amount of mistakes and indicators of bad processes on the other side were so many, and I went overboard in terms of just overloading the judge. That taught me that I had to limit it, not just for the judge but one of the toughest parts in this whole process is educating your own counsel. There’s only so much they can keep up with.

Noah Bolmer: How do you go about educating your counsel? How important is it that counsel becomes not an expert but versed somewhat in your field, to put on a proper performance in court?

Garth Gartrell: It boils down to identifying the big picture items because you have to remember that, especially in my area, sometimes executive compensation is the predominant issue. Typically, it’s a side issue. You have to remember that often, it’s within the valuation so it’s incredibly hard to be a litigator, and they can’t get their head around the minutiae especially of a side issue. You’ve only got a limited number of opportunities and you’ve got to pick your moments and make those the kinds of things that help. My experience as a lawyer, I think, has helped a great deal. They’re not my wins or losses, but the wins or losses of the person paying my bill.

One of the most successful cases from that perspective was when I identified that the witness on the other side was trying to buffalo the court. That happens routinely, but in this case- this was one of the most high-profile guys in the country. I knew from my legal training what he was trying to do in terms of a corporate issue was illegal, at least in California. Now this happened to be a Delaware law case, but I could say with a clear head that what he was proposing was illegal in a lot of states, including the biggest state in the Union. That had a dramatic effect on the outcome of the case.

Noah Bolmer: Do you present information differently when you are at a bench trial when it’s a judge as opposed to a jury trial? Do you change the way that you interact, your demeanor, or anything like that?

Garth Gartrell: I can’t say that I do, except that I think in bench trials the court is more involved in the back and forth and may question you directly. It certainly is important that you be concise and listen carefully to what the judge is asking. In that sense, I would say you always want to be attuned to the question. When it’s your lawyer asking the question, he or she can take care of any aspect of unclarity, whereas with the judge, you only get one shot and you better get it.

Noah Bolmer: Do you ever use visual aids with either the judge or with juries? Does that help you express some of the more complex concepts?

Garth Gartrell: On occasion, yes.

Noah Bolmer: Do you build them yourself?

Garth Gartrell: I often do, yes.

Noah Bolmer: Do you find that visual aids are also useful in report writing?

Garth Gartrell: Oh absolutely, I think they are essential. I don’t know if I’ve completely mastered it, but it’s something I continue to try to work on to make it as scientifically accurate [and] understandable as possible.

Noah Bolmer: Let’s talk about preparation. How do you get ready for a deposition? How do you get ready for trial? What techniques do you like to use to get yourself prepared both in terms of materials and the right headspace to be ready to go when you’re peppered with questions?

Garth Gartrell: I don’t worry about it too much. The things I talk about I’ve worked on for so long and written about so much that I’m going to be much better versed than the questioning lawyer ever is. Having said that, the way I approach cases is as a Venn diagram where I try to imagine the scope of what I can testify to and what I can feel strongly about. I try to identify the ultimate client’s perspective and what they’re looking to accomplish to the extent there’s a lot of overlap between the two. Then I feel comfortable. I put a lot of work into my opinion, so I make sure that everything that I want to say is in my opinion. Then it’s an easy matter of reading my opinion. I will read over the depositions of the parties once again and then I’m typically relaxed when I go into trial. It always reminds me of something Mark Twain said. He said, “If you tell the truth, you never have to remember anything and the truth is what you believe it to be in your experience.” As long as my report is consistent with something that I believe to be factually correct it doesn’t take a whole lot of preparation. I’m typically comfortable billing at a fixed fee, especially for that part, because I don’t believe it’s going to take a lot of time. In the typical case, there are some exceptions.

Noah Bolmer: Speaking of billing, do you have any special terms that you like to put into contracts to protect yourself? Do you like to take retainers? What’s your billing structure like?

Garth Gartrell: I do like to take retainers, and I will always take a retainer if it’s an individual. I don’t care how rich somebody is, they don’t like to write checks, and I stay ahead of that. Every expert knows that your leverage goes away once you’ve given up a report or once you’ve testified. So yes, I always take a retainer. I’m always concerned that in a litigation matter where you’ve two sides that might be at each other’s throats. I don’t want their litigation matter to become my litigation matter. Most of my engagement letters have not only a hold harmless, but they have a duty to defend. If I’m comfortable enough in a situation and in those rare instances where I get pushed back, I’ll agree to a hold harmless only. It’s never happened. I’ve never had an instance where somebody’s tried to come at me because of an opinion, but it only takes one time. I work hard to make sure the engagement letter reflects those kinds of provisions.

Noah Bolmer: As somebody who’s been doing this for quite a while and been watching it for even longer as an attorney, have things changed in a noticeable way vis-vis expert witnessing? In other words, has something like technology changed? Has the willingness to use expert witnesses or the time at which they are brought into a case changed? What have you seen over the years and where do you see it going in the future?

Garth Gartrell: I can only speak specifically to my area; it has grown quite a bit. Forty years ago,  I don’t think they would even know what an exec comp expert was. They might have had an expert who was [familiar with] divorce cases. They often had a person who could make some judgment as to what the spouse could earn, so it’s the job function expert and those types of people. They’re completely different. They don’t spend that much time on compensation. They spend a lot of time on somebody’s basic skills and education level. The types of people who might have done that would also have been the general valuation consultants who don’t really do compensation. They do general business valuations, but they have kind of a tangential understanding of compensation and they have ventured into the area of compensation. That has changed a lot. Fewer and fewer valuation consultants wander into that, at least on high-value cases, because they get into a lot of trouble. It’s easy to run circles around evaluation consultants. They will often leave out compensation components, so you see that less and less, but for a case where the individual can’t afford a lot of fees, and it’s not a big dollar value case, you might see that. There’s no question that there’s been a seismic shift in the number of cases in which the lawyer has decided they need an exec comp expert.

Noah Bolmer: Have you done a significant amount of work over Zoom or other virtual means?

Garth Gartrell: Since the pandemic that’s been the predominant method. Almost all of my depositions are remote and that’s great because I spend my time in the Eastern and Pacific time zones. Trials are still mostly remote as we’re coming out of the pandemic. I just had a New Jersey case that was settled. I would have had to show up there. I have a case coming up in the Northern District of California and I’m led to believe I have to show up there, but for the most part, over the last four years, I’ve testified remotely.

Noah Bolmer: Is there a demeanor difference? For instance, is it harder to connect with a jury or is it largely the same?

Garth Gartrell: It’s a mistake to try to connect with the jury.

Noah Bolmer: How so?

Garth Gartrell: That’s a lawyer thing. As an expert, I don’t look at the jury. I look at the person questioning, so to me, there’s no difference. I’m talking to the person asking the questions, and whether it’s a judge or jury, I understand other parties are listening but again, I don’t feel any tension early on. I used to get pretty nervous, but now it’s just like you and I are having a conversation.

Noah Bolmer: When you’re working on a larger trial team where there might be multiple experts, paralegals, and maybe even consultants, how much interfacing or interaction do you have with the other members? Do you work with other experts on the team or is it large, largely compartmentalized?

Garth Gartrell: It’s largely compartmentalized, but not entirely. There are certain things I need to know about what they need to know so that I can do my job. Sometimes it’s helpful to see how my own compensation valuation usually fits within the business valuation, so there’s some linkage. That being said, I think it is helpful and I believe the lawyers want you to largely stand independently of the other consultant, so there’s not [much] coordination. Again, I need to understand what it is they’re trying to accomplish so that I can give them the perspective that they’re looking for. Counsel wants you to say, by and large, that you’re independent and unaffected by the opinions rendered by other experts. In those instances where there are seven or eight other consultants on various other issues, I’ll have virtually no communication with most and very limited conversation with some.

Noah Bolmer: That’s interesting. Do you have any cases that stood out to you as meaningful in as much as they changed the way that you go about expert witnessing or reinforced something that you do as an expert witness? Are there any pivotal cases in your career as an expert that you can talk about?

Garth Gartrell: There was one case in particular where I knew the expert was selling a lie to the judge and was masquerading as a deep and dark math expert. I have a fair math background myself and I knew he was stretching concepts way beyond what they could do, but I felt a little self-conscious about my lack of recent math credentials. That case was the one that caused me to- now, I did what I thought was good work, but I thought if I was going to continue to get calls about this stuff, I wanted to have credentials that were more in sync with my CPA credentials and less what people think of as a lawyer. That’s why in my mid-60s, I went and started a graduate degree in the School of Industrial Engineering at Georgia Tech on data analytics. Now, there’s no question about my ability to understand and articulate those issues.

Noah Bolmer: Before we wrap up, do you have any marketing tips or is there a specific way that you like to get yourself out there? Do you find expert witness referral agencies useful?

Garth Gartrell: To answer your second question, yes, they are useful. In answer to your first question, I do know marketing. I’m not at that stage in my life where I push. I don’t think I maintain my website anymore. I still do writing, and I suppose that comes across when people do some kind of search. Most of my cases are word of mouth, but I have gotten a couple of- I guess I would call them head hunting agencies for experts, but most have come from, and I don’t even know how the word gets around but at 70 years old, that works for me and has worked out well.

Noah Bolmer: At the end of the day, what’s meaningful about expert witnessing? Why is it important that there are expert witnesses?

Garth Gartrell: They help sharpen the issue for me and help me stay engaged. In my teaching it gives me real life relevant data points to deliver not just to the undergraduate students well, but especially to the graduate students in the MBA program. I never thought at this stage of my life that between the teaching, expert witnessing, and for me, that’s the completion of a circle and a career. I still do a lot of board consulting and I can tell members of public company boards things that I see in a litigation context and they’re of course interested in that. The last thing they want to do is be hauled into court for a board breach of fiduciary duty issue to their shareholders. So, it’s a circle that’s full and engaging. I assume that helps all experts but I am hopeful at the end of the day that more experts I encounter on the other side will be less concerned with winning and more concerned with giving testimony that’s truthful and professionally sound.

Noah Bolmer: Sage advice, Mr. Gartrell, thank you for joining me here today on Engaging Experts.

Garth Gartrell: Thank you.

Noah Bolmer: And thank you to our listeners for joining me for another episode of Engaging Experts. Cheers.

Mr. P. Garth Gartrell, Esq., CPA, LL.M, Founder of StreeterWyatt Analytics, LLC

Mr. Garth Gartrell, is the founder of StreeterWyatt Analytics, a firm specializing in executive compensation analysis, and the author of Emerging Compensation for Emerging Grown Companies. Also, he is an adjunct professor at Capital University and practices pro bono law. Mr. Gartrell holds a JD from Ohio State and an LLM from Harvard.