In this episode…

“Communication is key,” according to guest, Ms. Nancy Kuhn. Whether good or bad, having an open dialogue between an expert and an attorney is the foundation of a successful engagement. That said, she also notes that attorneys are extremely busy and may not always have time for extended conversations.

Check out the entire episode for our discussion on settlements, finding meaning in expert witnessing, and representing nonprofits.

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Nancy Ortmeyer Kuhn, Shareholder at Shulman Rogers

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome our guest, Nancy Ortmeyer Kuhn, to the show. Ms. Kuhn is a shareholder at Shulman Rogers, where she specializes in tax controversies and tax planning. She’s a sought-after expert witness for a range of topics, including non-profit governance, charitable conservation easements, and general tax issues. Ms. Kuhn is a published author and holds an LLM from the University of Denver. Ms. Kuhn, thank you for joining me today at the Round Table.

Nancy Ortmeyer Kuhn: Thank you all for having me. I’m pleased to join you.

Noah Bolmer: Of course. You have been a legal and tax professional for quite a long time. How did you first get involved in expert witnessing?

Nancy Ortmeyer Kuhn: I started at the U. S. Tax Court as a law clerk and then went to the Internal Revenue Service for 10 years and then jumped to private practice, so I have experience on both the government and the taxpayer side. For that reason, I can view a tax issue from either the government’s perspective or the taxpayer’s perspective, depending on the situation. My background is attractive to individuals looking for experts in tax. I also have a lot of nonprofit experience. Unfortunately, there are a lot of nonprofits that are suing each other these days and a lot of times, it has to do with governance issues, and that isn’t legal. That’s more my experience being on the boards of nonprofits representing nonprofits. Marrying the nonprofit governance experience with the tax experience is a bit unique. I got started as an expert because I’ve been writing about various topics for years, and I was contacted because my name was connected with some of these topics. It has been fun, and I enjoy being an expert.

Noah Bolmer: Were you specifically looking to become an expert or did it fall in your lap?

Nancy Ortmeyer Kuhn: It fell in my lap, I tried it, and I enjoyed it. Then, I started pursuing it more seriously.

Noah Bolmer: That brings me to one of my first questions. It’s a general question, but something I like to ask our expert witnesses, in particular those who have been doing this for a while. What do you find meaningful about being an expert? Why is expert witness work important?

Nancy Ortmeyer Kuhn: This may be a little self-serving, but when I first started out as a young female tax attorney, I wasn’t always taken seriously. I would be in meetings, and I would say something and be disregarded. Then, others would say the same thing and it was like it was the best thing that the client or whoever we were talking with had heard. That got old after a while, so all these years later, it’s gratifying to be regarded as an expert in my field of tax and nonprofit and for attorneys and judges to respect my opinions. I love the give and take of litigation. I also litigate tax cases and represent taxpayers, including nonprofits, and I enjoy the variety of being involved in litigation as an expert. It’s a different perspective and skill set. I enjoy the variety.

Noah Bolmer: Do you have a preference between the two?

Nancy Ortmeyer Kuhn: It depends on the case. There are some cases when I’m the expert where I would love to get in there and be representing the taxpayer, but in other cases, I’m glad to be the expert and not be involved in the nitty-gritty of the case.

Noah Bolmer: Absolutely. As somebody who has worked on both sides, what are the main factors that make a great or a positive attorney-expert relationship?

Nancy Ortmeyer Kuhn: Communication is important, so there aren’t any surprises-

Noah Bolmer: Sure.

Nancy Ortmeyer Kuhn: -whether I am representing the government, representing taxpayers, or nonprofits. Everyone [must be] open about deadlines, open about the goals, and open about the strength of the case. Communication is key to every relationship, but especially the expert witness relationship, because I don’t want to testify as an expert in a case that is a loser and I’m just wasting the clients’ money because litigation is expensive. If they don’t have a case, I find it necessary for me to communicate that to the client. On the other hand, if it’s a strong case, and they want to settle for something that’s not fair to the client, then that also needs to be communicated. On the other side of that, I expect the clients to let me know what’s going on in the case on a regular basis and deadlines, so I get my calendar blocked off. All those administrative details. To be honest, it doesn’t always happen, but it’s important to have communication.

Noah Bolmer: To facilitate open communication, do experts need to take a proactive approach and make sure they get their questions answered and they’re in the right place when it comes to an engagement?

Nancy Ortmeyer Kuhn: Proactive, but not a pest, because the litigators are extremely stressed, and they have all these motions to file and pleadings to file and discovery and all of that. As an expert, I try to give the litigator space. Obviously, I need to know what’s going on, but I try not to be a pest. I let them do their job, and usually, it’s not a problem.

Noah Bolmer: You mentioned [that] so many cases [are] going to settlement. How does that affect the role of the expert? In other words, do experts need to prepare as though their case is going to trial every time or does it affect the calculus or the expectations of the attorney or the preparation or any other factors that relate to settlements?

Nancy Ortmeyer Kuhn: Cases are going to settlement because litigation is so time-consuming, takes forever, and is expensive. It’s important for the experts to get involved as early as possible so that they can shape the guidance and arguments for the attorneys regarding, as I said, the value of the case and the best possible terms for settlement. It doesn’t always happen, but an expert must be ready in case the case goes to trial. I’ve been deposed many times, and the case then settles shortly thereafter. Being ready for a deposition is the same as being ready for trial. You must be ready for [both], but at the same time you have to be realistic about the value of the case and whether it is likely to go to trial. It’s more advisory in nature at the beginning rather than purely a litigation wall.

Noah Bolmer: Absolutely. That sort of change is similar to a lot of cases moving on to settlement. Have there been any other changes in your field specifically or in expert witnessing generally that have changed the way that you approach expert witnessing?

Nancy Ortmeyer Kuhn: The way I approach it has not. Unfortunately, I learned the hard way that I need to get a fairly sizable retainer fee upfront. Being an expert witness is time intensive.

Noah Bolmer: Oh.

Nancy Ortmeyer Kuhn: They’re typically reams of documents that I need to review, including endless deposition transcripts of the fact witnesses, and it takes a lot of time. I’ve trusted clients in the past to pay me after the work is done, and that doesn’t always happen. Then it’s a problem. Litigation is expensive and that’s why a lot of these cases will.

Noah Bolmer: Right. 

Nancy Ortmeyer Kuhn: I have learned the hard way, but I’ve also seen more litigation between and among nonprofits, which I didn’t used to see. I don’t think that used to happen as frequently. As someone involved in many nonprofits professionally and personally as a volunteer, I celebrate the work that they engage in. I do try to work with my nonprofit clients as an expert, but also in a manner that could lower the temperature and get a favorable resolution, possibly without going to trial. It always makes me a little sad to see nonprofits fighting with each other internally. It happens, and I’m afraid it seems we have become a more litigious society.

Noah Bolmer: Sure. When you have different businesses trying to do good work, like nonprofits, it’s unfortunate for them to be fighting each other. It’s completely understandable. Is there a push for some of that to move to nontraditional litigation like alternative dispute resolution?

Nancy Ortmeyer Kuhn: Exactly.  

Noah Bolmer: Like arbitration and things like that.  

Nancy Ortmeyer Kuhn: I haven’t seen that which is surprising. You’d think they would want to go to mediation. Some courts do require that as part of the litigation process, but most of the cases I see are in trial. They’ve been filed in local courts, state courts, federal court, whatever it might be.

Noah Bolmer: You talked about a lesson you had learned vis-vis making sure you charge a retainer and making sure that you get paid. Our podcast is primarily about those sorts of lessons. Before we wrap up a story or two about any expert witness engagements that turned out to be learning lessons for you or any other insights that you’ve picked up along the way?

Nancy Ortmeyer Kuhn: One lesson I picked up right away is that judges don’t necessarily think that they need another lawyer in the case. The legal arguments are to be made by the plaintiffs, counsel, and defendants counsel. I learned that my first task is to demonstrate to the judge and the parties that my perspective is different. Tax laws are complicated, and so a general litigator is not going to understand the intricacies of the law. I provide that expertise but as I mentioned, my expert work on behalf of nonprofits is similarly nuanced. Lawyers tend not to understand the nonprofit governance issues and that relationships are so important. My extensive background with nonprofits as a lawyer and as a volunteer offers that perspective. I have to convince the judge and my client that I’m not just appearing as a lawyer but as an expert witness.

An example is I was hired relatively late in a case that was before a local court and when I was reviewing the complaint, there was a statement by my client in the complaint that was wrong. It was legally, and categorically incorrect. That’s an experience that encourages me. It’s not good to jump into the case at the last minute. You have to try to get involved early on. In that case, luckily, the case did settle, so it didn’t become an issue. I saw that and thought, “Oh no.” If I’m on the stand, and I have to defend that statement or talk to the client and get them to amend the fleeting or whatever it might be that’s not going to be a pleasant situation. You have to be flexible in those situations and make the best of what might be an awkward situation and harmful to the client. I’ve learned to have thick skin because even though I’m an expert and taken seriously, hopefully by the judge, but definitely by my client opposing counsel is going to try to tear me apart limb by limb. They don’t want what I’m saying to go against their client and be the final word.

Noah Bolmer: Sure.

Nancy Ortmeyer Kuhn: You have to have a thick skin for the cross-examination part of this. Generally, lawyers are very respectful, so it’s not that much of an issue, but you have to be prepared for anything.

Noah Bolmer: Absolutely Sage advice, Miss Kuhn. Thank you for joining me today at the Round Table.

Nancy Ortmeyer Kuhn: It’s my pleasure. Thank you.

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

Nancy Kuhn, Shareholder, Shulman Rogers

Our guest, Nancy Ortmeyer Kuhn, is a Schulman Rogers shareholder, and she specializes in tax controversies and tax planning. She is a practicing attorney and expert witness for a range of topics including non-profit governance, charitable conservation easements, and general tax issues. Ms. Kuhn is a published author and holds an LLM from the University of Denver.