In this episode…

Preparation is key, and Dr. Don Keysser has worked with both attorneys who do a great job, and those that fall short. He recommends a proactive approach; ask for mock depositions when possible, noting that ill-prepared experts can have a profound impact on the end client.

Check out the entire episode for our discussion on working internationally, working for both plaintiff and defendant and marketing.

Episode Transcript:  

Note:    Transcript has been lightly edited for clarity. 

Host:    Noah Bolmer, Round Table Group

Guest:  Dr. Don Keysser, Managing Principal at Hanover Ltd.

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Dr. Don Keysser to the show. Dr. Keysser is a Managing Principal and Business Finance Consultant at Hanover Limited, where he specializes in business development, capital planning, financial analysis, and more. Additionally, he teaches business and finance at the University of Minnesota and at St. Mary’s University. Dr. Keysser has more than 20 years in expert witnessing and holds an MBA and DBA. Dr. Keysser, thank you for joining me here on Engaging Experts.

Don Keysser: Thank you, Noah, It’s a pleasure to be here.

Noah Bolmer: You have over 35 years in finance, how did you first get involved in expert witnessing?

Don Keysser: It was by accident. My first case was a case where I’d been hired as an investment banker, and I ended up resigning from the transaction because the client was doing a lot of dumb things and wouldn’t take my advice. So, I said, “Gentlemen, I need to leave this engagement. Good luck.” They [got] a different investment banker who I will not name. That investment banker did the transaction, and within less than a year it collapsed. During the litigation Discovery that followed, the attorneys found memos I had written to the client. This was back before e-mail, so you wrote paper and ink memos. They called me and [asked] if I would testify on what the investment banker that replaced me had done wrong. I said, “Are you kidding? I’d love to.” It’s a chance to stick my thumb in somebody else’s eye, so I did that, and I enjoyed it. I realized that I was good at it, and then I had a few more referrals from friends who were attorneys, and it mushroomed from there. I’ve done fifty-three cases to date all across the country. Last year, I did international cases in Kenya, the Cayman Islands, and Grand Cayman.

Noah Bolmer: How was it different working internationally?

Don Keysser: It’s a British legal system, not an American one. I asked my attorneys, all of whom were British, “What are the protocols here?” I didn’t want to feel like a total idiot. They said, “First of all, never call the judge “Your Honor’ it’s always ‘Lord’ or ‘Your Lordship’. The first time I spoke in the courtroom to the judge, it was a bench trial, and I turned around and spoke to the judge. I started to say, “Your Honor” then caught myself halfway through and said, “Excuse me, my Lord.” He started laughing because he knew I’m an American. He thought it was funny. That trial went on for about 5 days. Our side won that case and the $20 million award. That was very gratifying, but it was a different system. Otherwise, I’ve been all over the country on these cases. They are civil cases, not criminal, obviously, and most of them settle out of court. I’ve had seven jury trials, and I’ve got two more coming up early next year. Then, I have one bench trial.

Noah Bolmer: Having worked across the States and internationally, what are some of the differences across different venues and more importantly, or equally importantly, how do you prepare? When you’re working in a new venue, do you have to become familiar with some of the laws? Are the systems different for you?

Don Keysser: I’m not an attorney. I’m an investment banker, so I’m always careful not to give a legal opinion. I’m careful not to do that. I have local attorneys, of course, who hired me. They’re the ones who will give the legal opinions and argue the legal side of the case. I’m there to argue the investment banking side of the case. The standards of care, investment banking practices, and financial analysis. The legal issues aren’t too much. What I’m going to be careful about is that different jurisdictions have different rules about discovery of expert communication. If you hire me to present the case, the first question I ask on our first conference call is what the discovery rules are, and if I can communicate with you without fear of discovery. Then I can send you draft reports and emails discussing my views. In some jurisdictions those forms of communication are discoverable, and I must be careful what I write down. I will never send you a draft. I’ll discuss the draft with you on a shared screen in a Zoom call, but I’ll never give you anything on paper. That’s the first question I ask and that does vary from jurisdiction to jurisdiction. That’s the only concern I have about local law. Otherwise, I don’t cite the law or give an opinion on the law.

Noah Bolmer: Do depositions differently in different venues?

Don Keysser: They’re the same. I’ve been getting used to seeing more video depositions. They never used video, but now they’re used more, and then lately the last couple of years because of COVID I’ve done Zoom depositions. On my last deposition, the attorney I worked for was in Salt Lake City. The opposing council was in Baltimore. Sorry, they were in Philadelphia. The court reporter was in Baltimore, and of course, I’m here in Minneapolis. It was an interesting experience, but it worked. We got in the habit of that during COVID and I think we’ll stick with it because it saves a lot of costs. Instead of having to fly people back and forth around the country, you sit down at your desk and open your camera.

Noah Bolmer: As somebody who’s been doing this for a long time, how does that change, or does it change the way that you interact? Do you have to change your demeanor? Do you have to make sure that you’re glancing up at the camera to make sure that you’re making eye contact? What are some of the considerations when you’re doing a video or Zoom depositions?

Don Keysser: That’s a good point. I’m trying it right now. I’ve had to position my camera so that I’m looking at you and the camera, not looking off somewhere like this. I must be careful about that, and I wear a nice shirt, and a tie, which sounds silly. I’m at my desk as I am right now in my crowded study. It’s informal and it works fine.

Noah Bolmer: Let’s talk about the other questions you ask. You talked about what you like to ask perspective counsel, and make sure that the discovery rules, for instance, what are the other important questions when you are being vetted and when you yourself are vetting the action to decide whether you’re the right expert?

Don Keysser: I see that part of my role in the early stages of the case, particularly if I’m brought into the case early, is to help review the theory of the case with the attorney. I’m an expert on finance and banking. Most attorneys are not. They’re knowledgeable and have been doing this for a while. They have a good sense of how investment banking works, investment management, and brokerage practices. As the expert, what I try to do early on is help the counsel articulate the theory of the case. What’s the case about? What are the underlying issues here? Not only legally, like citing case law, which I don’t do, but what are the underlying theories in terms of banking practice? That’s where I play a role. One thing I make sure the attorney understands, and not all of them do, is that I’m not here to be an advocate for your client. That’s your job. The attorney is the advocate and will argue the client’s case vociferously and enthusiastically. The role of an expert witness is an inherent tension. In theory, I work for the court under section two of the rules. I’m an objective assessor of facts to help the court in their role as a Trier of Fact. I am paid by one side, not the other, and that’s an inherent tension within the role.

I’m paid by one side, and I don’t want to argue against them, but I’m not there to advocate for them. I want to make sure they’re turned into stands that I can’t fib. Not that I would in turn, would ever fib, God forbid, but I cannot varnish the truth. I have to tell the court what I think is real.

The dilemma is that I’ve been involved in cases and when I get hired in a case, I know almost nothing about it. I’m given the name check to make sure I have no conflicts, but beyond that I know almost nothing about the case. When I get hired, I start reading volumes and volumes of text, complaints, and counter complaints, motions, and e-mail strings. Then I begin to get a sense of the case, and I’ve had cases where once I dive into the details of the case, I find my client has a terrible case. It’s not a good case. I’m happy to help as much as I can, but that’s when I pull the attorney aside and say, “Your case sucks and you need to settle this.” I’m trying to be blunt and do them a favor because if they want to go to trial, it makes me nervous. I’ve had situations where I tell my attorney, my client, that I want to do a mock deposition with that I’m going to list the five terrible questions that opposing counsel could ask me that would be damaging to our side. I must answer the questions truthfully. I can’t brandish them. I do this mock deposition where I ask myself the question and then give the answers. By the time I’m finished my attorney is pale and says, “I’ve got a bad problem here.” My duty is to help them figure out a way to make the case as palpable as possible without trying to be an advocate for them. That’s a delicate balance. Much of that distinction is blurred. They are out there in the courtroom being enthusiastic advocates and champions, and that’s not appropriate. If the judge is smart, they’ll slap you down and say, “Sir, you can’t do that. You can’t say that.”

Noah Bolmer: Right, both under the rubric of 702 and other similar. Obviously, each venue has its own version thereof, but the expert’s duty is the unvarnished, unbleached truth, and neutrality, and not to the end client as you say. You had mentioned attorneys don’t always know that. Have you ever been put in the hot seat? You don’t need to name any names, but have you been in the position where an attorney or trial team has nudged you more than you’re comfortable with to frame your opinion in a certain way or to change your opinion. Has anything like that happened to you? That can be instructive to other expert witnesses.

Don Keysser: Yeah. I would say in many cases it has- if the if the evidentiary rules are allowed, I will always give a draft [of] my report to my attorney. Because it’s- that’s their work product and they’re paying me for it and I want to make sure it fits within their narrative and does not go against the grain of their narrative. So, I always give a draft to my report to the attorney, for the trial team.

However, in a couple of cases they pushed back vigorously and said no, you shouldn’t say this. You should say that.” I usually say, “I’m sorry, but I must give you my opinion as I see it and I will phrase it as well as I can without damaging your case. I’m not going to shift my opinion and say something differently because it doesn’t marry up with the approach you take. There have been a couple of cases where we’ve had tension on that issue, but again I remind them that I’m there to be a neutral observer of facts, not an advocate. We usually work our way past that. These are professionals. I mean these are not amateurs fresh out of law school, these are seasoned litigation attorneys. They understand that. They’ll push me a little and I’ll push back a little but at the end of the day, we have a good report they can live with. As I remind them, my deposition will be pegged upon my report. So, when I give my deposition, the opposing counsel will have my report right in front of them, and will say, “Dr. Keysser on page 7 you say XYZ.” and that’s fine. I will support what I said on page seven.

Noah Bolmer: Let’s talk a little about deposition. Obviously, you have your expert witness report in front of you and they are quizzing you about page 7, but what if they quiz you about something you said on the 3rd of February 1982 in an article that you wrote or that you said in some case 20 years ago? How do you keep track of the things you’ve said and opinions that you’ve taken to make sure that you don’t contradict yourself? Is it even more important that you don’t contradict yourself going into depositions and trials?

Don Keysser: It’s very important. I don’t want to have a situation where I’ll say “x” and the opposing counsel says, “Well, ten years ago you said ‘Y.’” First, I’d say- I keep all my reports and before I write a new report I’ll go back and look at the old ones to see if they cover the same issue. For example, quite often I’ll testify on issues of disclosure diligence. That’s a common theme in defaulted financing and I make sure that I’m consistent in what I said ten years ago. My view has not changed all that much. I have managed to stay consistent and when I change my opinion, I will always cite the context because nothing is black and white. It always has nuance to it and the opposing counsel will say, “Ten years ago on Smith versus Jones, you said X.” And I’ll say, “You are correct sir, but Smith and Jones is a different kind of case than this case and here is why they are different.” I reflect my opinion in the nuance of this case and that it is satisfactory.

Noah Bolmer: Is that something the attorney will prepare you on? Do they do a good job of vetting things that you’ve said in the past and coaching you on how to respond to those sorts of questions?

Don Keysser: Unfortunately, not, and this is what I have of my attorney client. I just finished a jury trial about 4 weeks ago and the attorney was nice and knowledgeable but did not prep me. I prepped myself. I spent quite a bit of time in my hotel room preparing myself by reading back my opinion, my report, and some earlier reports on the same subject matter. Some clients will thoroughly prepare you. They’ll do a mock deposition and even videotape it to prepare me for the other attorneys. Other attorneys unfortunately do not. I urge my attorneys to please prepare and rehearse with me because I want to be polished. I want to serve your cause. I’ve been in trials where an ill-prepared expert witness on the other side can hurt that case badly. A well-prepared expert witness can bolster the case. In the long run, the attorney wins the case. I don’t. I never claim that I win a case, but I can certainly bolster the client, the attorney’s arguments with my professional opinions. But I urge my attorneys to prepare me well to go through a mock deposition.

Noah Bolmer: Should newer expert witnesses who haven’t been prepped often adopt a proactive approach, making sure that their attorney is adequately preparing them, and similarly, what preparation should all attorneys be doing?

Don Keysser: One of the things I urge other experts to do, that I have given classes and sealed seminars to attorneys. In fact, Round Table Group when you were part of Thomson-

Noah Bolmer: Reuters

Don Keysser: Thomson Reuters. You broke away, right? Thomson Reuters used to have an advisory body of experts, that I was a member of, and we would meet [occasionally] and discuss it. When you first get engaged by an attorney, immediately sit the attorney down and go through a list of questions and understand the timetable clearly. Understand exactly what they want me to say, and do you want an opinion on this? They’ll say, “Don’t talk about that. Talk about this.” That’s fine. I understand that, but I want to make sure that I am meeting their needs within the spirit of my own knowledge and my own base. I will not give legal opinions. I will give opinions on my expertise, and not other expertise. I will sit the attorney down and have that conversation right off the bat. It’s the first conversation we have. I want to make sure we’re all on the same page in terms of expectations. I tell them I want to give them a draft to review, and they usually say, “It’s great. We love that” and I tell them I want a great detailed preparation if we’re going to have deposition. In most cases, I have a deposition and for a jury trial it’s more important to have a detailed prep session where we have a mock cross-examination. That makes a big difference.

Noah Bolmer: Let’s talk about the trial team. Some trial teams consist of attorneys, paralegals, and people who are helping with the case in different ways. Even separate experts in different areas. To what extent do you find yourself engaging with and even collaborating with the rest of the trial team or are you cordoned off into your own area where you just do your own thing?

Don Keysser: Unfortunately, in most cases, it’s cordoned off. If there are other experts involved. I’m not even encouraged to communicate with them. Typically, they are in a different area of this case. For example, they may be tax experts. I’m not a tax expert. There might be an engineering expert, who I’m clearly not, or they might be I don’t know what, but I’m usually not encouraged to communicate with them. I’m not sure if the attorneys are fearful of a cross-pollination of ideas. I’m not sure why they say that, but I almost never coordinate with other experts. I do try to coordinate with the key members of the team, and one person usually drives that team, and I try to make sure I coordinate with him or her closely. There might be a couple of subordinates who are also involved in the case who might prep me.  I try to reach out to the entire team, but I don’t usually talk with other experts, which sometimes is frustrating because I want to, but that’s not usually encouraged.

Noah Bolmer: Let’s talk about expert witnessing more generally. How do you maintain your expertise? Some expert fields, like finance for instance, can be quite dynamic in the ways rules and best practices change. How do you keep up with the latest developments in your field?

Don Keysser: I think that’s an important question. A couple of things. One is I am an active professor at the University of Minnesota School of Business. I’m also a professor at Saint Mary’s University, in their doctoral program. I have the advantage of teaching these subject matters, and as I tell my students, when you’re a teacher, you’re also a student. You’re always learning because as you point out it’s a dynamic, constantly evolving, and maturing field. As a teacher, I have the chance to keep up with the literature and keep reading. The other thing is, when I get hired on a specific project, I will do a lot of research into that matter. For example, I mentioned I had a case in the Cayman Islands or Grand Cayman about a year ago and it had a lot to do with brokerage agreements, short selling, and there were other elements. I know those fields well, but I went back into Google Scholar, finance journals, and other areas to brush up my knowledge. I read a fair amount.

I had a case just a few months ago that involved Black Rock and the subject matter there was carried interest in clawbacks. Again, I understand them conceptually, but not in detail, so, I went back and did a fair amount of research. When I write my expert reports, I always cite the source of them given by the attorney and the emails the counter complaints and all that. I also cite my own academic research. There’s a bibliography section at the end of my report where I talk about who said what, and I also cite the sources used in my report. It becomes a mini- dissertation where I authoritatively cite academic and trial sources.

Noah Bolmer: Is additional research pursuant to report a billable expense?

Don Keysser: Definitely. I expense everything and I rarely get any push back. I’m rounding out my knowledge and providing more depth like [with] the question of carried interest in the clawback. In my citations, along with the clawback information, I also had some detailed citations relating to the Investor Relations Act of 1940 which was germane to this case. I cited [my information] authoritatively and that made my report much stronger so, it’s billable.

Noah Bolmer: In addition to keeping abreast of the latest developments in finance, do you also spend any time approaching or networking with other expert witnesses, either in general, at conferences or in your field?

Don Keysser: Unfortunately, there isn’t a network of expert witnesses. We don’t have a trade group or an annual conference or anything, so I don’t have a chance to talk to others. I talk to colleagues in related areas, and I might ask them. I have a colleague who is an active broker manager, and I said, “Tell me about your perspective on brokerage agreements and how they deal with short selling.” I will pick up information from that, but I don’t discuss the case with them. That’s not appropriate for confidentiality reasons. In my report, I make a point of saying that I wrote the report by myself with no outside researchers, secretaries, or clerical [assistance]. I read the whole thing myself, which is true. I will have some conversations with fellow professionals at a general level, but I won’t talk about the case per se.

Noah Bolmer: Speaking of cases, do you have a case or two that you can talk about, generally? I know you can’t name names because of confidentiality and other reasons, but that served as touchstones in your career as an expert witness. That either reinforces something about being an expert witness or changes the way that you see expert witnessing in general.

Don Keysser: I had a wonderful case a couple of years ago. A European Investment Bank underwrote a $250 million-euro, high yield junk bond transaction for a European company. The investment bank made a lot of mistakes in their disclosure materials. They tried to sell that bond in The European Institutional Investor Institute, and no one would touch it because the company was questionable, and they passed that bond issue over to their American branch, which sold it to an investment management company in California. That bond issue defaulted in less than 12 months, which to me is an indication not so much of a problem with the project, but with the underwriting. Something was wrong when a project defaults within less than 12 months. I was on the side of the investment management company that bought the bond, and I argued that there were some significant flaws in the disclosure materials, the disclosure process and the management of the case by the Investment Bank.

Another case was so flipped around and that’s why I got confused for a second. There was another large bond default in the southern United States that involved again project financing which went bad in less than 12 months. In that case, I was defending the investment bank, which was a very large American second tier investment bank and the allegation was that they had failed in disclosure. I went through their materials with a fine-tooth comb including their cash flow performance, their investor outreach, and their due diligence meetings. They had site visits. I came to the opinion that the investment bank had done a good job. They had [provided] an acceptable level of disclosure, and they were not at fault. The fault lay with the project developer who ended up in criminal court. He had done some criminal activity, including siphoning money away from the project. The investment bank itself, I felt, had done a proper job and I could defend them. Those two sides are kind of near to each other because in the one they were attacking an investment bank for gross failures of disclosure and management of the transaction on the other side defending an investment bank that handled the case very well, very professionally, had good team approach, had good leadership, and had good disclosure. I felt comfortable on both sides of that equation. I’m not always a plaintiff or a defendant expert. I will defend who I’m retained to protect.

Noah Bolmer: Are there any major differences between representing plaintiffs and defendants in terms of preparation? Anything that comes to mind?

Don Keysser: Not really. I dug deep into disclosure materials on both cases. In the American case, I went through a detailed list of all the steps they took. They had done extensive site visits, and they had done extensive conference calls with institutional investors about this project. They had gone out of the way to answer questions. I thought they did a good job, but I went through their materials in detail. In the European case, I also [did a detailed review of] their disclosure and management process. I thought they had done an inadequate, poor job of managing the process. It was a chaotic, undisciplined, non-systematic, and by the seat of your pants kind of process. They missed major issues and gave some extremely bad advice. They were asked questions by potential investors, and they clearly gave the wrong answers to those questions.

Noah Bolmer: Does working for both sides make you more attractive as an expert witness in terms of getting engaged?

Don Keysser: Yes, it does. I’m sometimes asked, “Are you always on the plaintiff’s side?” I’d say, “No.” I’ve gone through my cases, and I’d say I’m 50/50 in terms of plaintiff versus defendant. It’s not necessarily planned that way. I’m hired by the first guy who calls me, but it just worked out that way. I will handle both plaintiffs and defendants. I’m comfortable doing that and if my side is in the wrong, I will quietly whisper in the attorney’s ear and say, “We’ve got a problem here. Let’s try to settle this.” Because I don’t want to say that in my report. Of course, I can’t say that, but no, the same metrics and analysis applies whether it’s a plaintiff or defendant. You want to get into the details of the case, what happened, who said what and why. I’ll say one of the things that I like to look at most and always ask my attorney to do is give me all the email strings they have which can be considerable. People will be very careful in their public documents and say the stupidest things imaginable. They forget that emails are forever. They’re cast in concrete and can say awful things in an email string from five years ago. I love to quote email strings in my report. That’s a treasure trove of information for me.

Noah Bolmer: You mentioned cases going to settlement, does that affect your role as an expert witness? How common has that become over the years?

Don Keysser: No, I approached a report as if it’s going to go to trial. I write a detailed heavily researched report with academic and trial materials, and if it goes to trial, that’s great. If it goes settlement, that’s great. I never know what is going to happen. In fact, the two trials that I have coming up next year I thought would settle but they did not. They failed in their settlement talks, so now they want to go to trial. So, I never know. Now the settlement process itself, I don’t get involved. They have my report, and they might have my deposition. Then, the two sides will go off into a corner somewhere, duke it out, and come to a settlement. I don’t get involved in that. There have been a couple of cases where I’m told what the settlement might be or what the offer is and I’ll say, “This is a good offer.” or “It’s not an adequate offer.” Then they go back to the settlement table, and I find in about half of the cases I’m not told what the settlement is. The settlement is sealed. My attorney will call me up and say, “We settled last night. We’re done.” and I’ll say, “What was the settlement?” They will say, “I can’t tell you, it’s sealed.” My next question is, “Is our client happy?” and the attorney will say, “Our client is happy.” That’s all that matters to me. I don’t know what the numbers are. I don’t usually learn that.

Noah Bolmer: How does that affect, or does it affect your contracts? Have you changed any of your billing terms to account for cases that might go quickly to settlement or might have fewer hours or anything like that?

Don Keysser: No, I bill a straight flat hourly fee for everything that I do. I have one fee for all the work I do. I have a different fee for travel that’s less than demanding, but no, my fee structure is the same. I’ve had cases like the trial that I did a couple of weeks ago in northern Minnesota, that trial has been around for six years. I did the expert report two and a half years ago, and I thought it had died. When the attorney called me, I was shocked. [I said], “Is that thing is still alive.” We went to trial, but you never know how it’s going to go. So, I just do a flat contract number of hours billing, and I bill monthly 15-minute increments and that’s that.

Noah Bolmer: As an academic with courses to teach and a sought-after expert witness with cases going on for six years, how do you manage all your scheduling? How do you make sure you have time to write a report or when an attorney calls you at the last minute put it all together?

Don Keysser: It’s tricky. I have to write a report in the next couple of weeks, I’ll do it over the weekend. Juggling can get tricky. I teach about half my courses online, which is great because I can be anywhere, anytime. The other half of my courses are on campus. This morning, I taught a class at 8:15 in the morning at the University of Minnesota, and I had to be there at 8:15. Then, I have a night class tomorrow night, and I must be on campus from 6:00 to 9:00 PM. I have to juggle, and it just gets a little tricky. It helps the fact that depositions are [more frequently] on Zoom. I don’t have to fly to Philadelphia and spend 2 days. Now, I can just book a deposition in the morning and get it out of the way on Zoom. Trials are trickier. I figure out how to do it. It’s juggling, but that’s OK.

Noah Bolmer: Will the court work around your schedule to some extent?

Don Keysser: Not particularly, no. There are many logistics involved in setting up a trial, including juries. The two legal teams and the judge have their own schedules. I have to accommodate my schedule to theirs, and I make it work.

Noah Bolmer: What is important about being an expert witness? Why does being an expert witnessing matter?

Don Keysser: It brings a level of analysis and knowledge into a complex case. Financing cases, of course, I’m only in the finance world, but these cases can get complicated, and the attorneys in many cases don’t fully understand the cases. The judges in many cases don’t understand the case, or at least not the details of the case. This might be a judge who does family or PI law, and is suddenly faced with things like carried interest, clawbacks, short selling, and derivatives. It’s a complex field, so I add a layer of knowledge and depth into a case that the lawyers can’t do. The other thing I’ll bring up is that for a jury trial, I learned from the beginning- in fact one of my first cases was a jury trial, which was a real learning experience for me. When I’m first brought into a case, I’m wearing the hat of an expert. Now, I’m an expert. I’ll write a detailed report. But if it goes to trial, I wear the hat of a teacher. I’m a teacher by nature, and by trade, so I find my job is to sit in the witness stand, look at the jury, and I say the first question you’re going to ask me is “Dr. Keysser, what is this case really all about?” Which is a great open-ended question, and it gives me a runway. Then I try to, I don’t want to say dumb it down, that sounds insulting. But juries usually by the end of the trial are [too] swamped and flabbergasted to understand all the technical terms. They don’t know what to make of it. So, I try to make it simple and give them the cliff notes version of this case and I’ll say, “Mr. Jones, this case is about fraud, and this man defrauded that man.” I simplify it and make it more understandable. I don’t use a lot of big words like clawback and short selling. I just talk about how this person, in my opinion, did not treat that person correctly and was fraudulent. I don’t want to say they were screwed. I can’t say screwed. I use basic concepts, but I’m looking at the jury when I do that. I found not all, but in many cases, it is gratifying to see those light bulbs go on in the jury’s eyes, and they nod and say, “Okay, now I get it.” That’s gratifying because I’m trying to make this case understandable to them and when I’ve told other experts this, I’m no longer the expert, I’m now the teacher, and you have to be able to change hats.

Noah Bolmer: As a teacher and somebody who needs to connect with juries, have you used a lot of visual aids? Do you have charts, graphs, and things to look at? Do you find that to be useful?

Don Keysser: It depends on the case. In some cases, we’re encouraged to go electronic with PowerPoints and in one case I use the whiteboard to show a chain of transactions. “In the transaction here, the net gain was this. The next transaction here is going to arrow down to this transaction.” I try to whiteboard it to make it simple and show how the client made money. I can also do PowerPoints. Some cases involve PowerPoints. The jury room was set up with screens and computers. It will vary. Most of the trials are not technological. I just talk and that’s it. Some juries and courtrooms are technological.

Noah Bolmer: I’d like to back up to one thing. Earlier you mentioned Thomson Reuters and the Round Table Group. Have you found expert witness referral services to be useful in finding work?

Don Keysser: I went through my list a couple days ago, I wanted to remind myself how many cases I’ve received through a service like Round Table Group or in the old days, Thomson Reuters or TASA. I’ve [received] referrals from TASA. And I’d say out of 51 cases, maybe 8 or so came from a referral source. That’s nice and I like that because I meet attorneys I never would have met otherwise. I do a fair amount of online marketing myself and I get a lot of referrals.

Noah Bolmer: What sort of online marketing works for you?

Don Keysser: I did different experiments. First, I create my own databases of law firms. Say I want to see all the litigation law firms in Dallas, Texas, and I usually go with the larger firms because they’re more likely to have the larger cases, not the little “mom and pop” cases, but the larger cases. I’ll go with litigation law firms. I’ll go into their websites, and they usually show me who the litigation attorneys are as opposed to the PI guys and the environmental guys. I want the litigation guys, and if I’m lucky, they will show me who the chairperson or co-chairpeople of the litigation department are. That’s my target. Then I do not do an e-mail. I send them a packet of mail with a cover letter addressed to them personally, a list of all my cases which is about a 5-page list, a copy of the article that I wrote for Bench and Bar magazine and my CV. That’s bit of package, but I figure if you e-mail somebody, it’s easy to delete emails. I delete emails every day, so I get lots of them and attorneys are getting even more emails. But when you get an 8×12 or 9×12 envelope at your front desk that says “Mr. Jones” you don’t throw that away, [you] open it up and now I have you, so I’ve tried that. It’s a little bit laborious and it costs a little money, but I get more than if I send you an e-mail. It’s likely you are going to delete it. You don’t have the time to read it, I’ve tried LinkedIn and direct mail advertising. I have many attorneys in my database that I have done case for, and sometimes I’ll send them an email saying, “I’m still in the business, so think about me.” I just picked up a case for a lawyer that I did a deal for four years ago, and he said, “Oh, Don, I forgot about you. Here’s a case.”

Noah Bolmer: So, stay in touch.

Don Keysser: I get word of mouth attorney calls, and I get attorneys cold calling me saying, “I heard about you, and I’ve got a case for you.” So, it varies.

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

Don Keysser: One thing I’ve said, and I address this to attorneys, because I’ve given Attorney Sealy seminars, where I advise them that if you’re going to hire an expert, hire them early on because the earlier you bring them in, the more they can [use] their expertise to help you form the theory of the case. The other thing I’ve noticed is when I’m brought into a case late and I say, “I want to see this, this and this document” and they’ll say, “Discovery’s over.” [I’ll respond], “Why didn’t you call me two months ago?” It’s hard to reopen discovery, so I’m not getting the data that I need, and it never occurred to the attorney. Addressing young attorneys, I would say do your homework. If you are unsure about how you present yourself, offer to do a Zoom call with the attorney who’s questioning you as well somebody else and impress them with your video skills. What I’ve learned is that there could be an expert who is deeply knowledgeable, and smart but they don’t show well. They’re not comfortable. They fidget, and they don’t handle presentations well. The attorney should interview. I’ll share with you one story, there was a case in Florida that I was proposed for. There were two, no there were three candidates for that position, including me. I called the attorney, and he was nice. He saw my resume and my list of files and said, “You appear to be qualified. How do you handle trials?” I said, “I’ll tell you what, sir, I will fly down to Miami on my own nickel, and I will meet with you in your conference room, and you can give me a mock deposition. I want you to see me in the flesh. I’ll wear a suit and tie, and you can have me for two, three, or 4 hours and interview me.” And I did. It caught him off guard a bit, but I wanted him to see me in the flesh and see how I handle bad questions, disruptive questions, and challenging questions. We met for about an hour and a half. That’s all he could afford in terms of his own schedule, but I spent an hour and a half with him, and he said, “Okay, you’re hired.” So, that was worth my flight down to Miami to get hired.

Noah Bolmer: Absolutely.

Don Keysser: So, focus on how you present yourself because you could be awesomely bright and knowledgeable, but if you can’t handle yourself fluently and calmly, make a good presentation, and handle tough questioning opposing counsel will try to nail you. They’ll ask you disruptive questions to see how well you handle that? That’s an important skill for young beginning expert witnesses, who may not have that polish, that level of presentation, and develop that. I took some speaking lessons from a professional coach a couple of years ago because I had a habit of talking too fast and stuttering a little. I wanted to learn how to slow down and deliver more effectively, so I had about four or five classes with the voice coach. It was worth it.

Noah Bolmer: Sage advice. Dr. Keysser, thank you for joining me today.

Don Keysser: Thank you, Noah, it’s been a pleasure.

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

Dr. Don Keysser, DBA, CMAA

Dr. Don Keysser is a Managing Principal and Business Finance Consultant at Hanover Limited, where he specializes in business development, capital planning, financial analysis and more. Additionally, he teaches Business and Finance at the University of Minnesota, and St. Mary’s. Dr. Keysser has over 20 years in expert witnessing and holds an MBA and DBA.