In this episode…

Cases are as unique as individuals, according to guest Mr. Michael Maxwell. While there are similarities, he treats each engagement as a new experience, without bringing in the baggage of pre-conceptions. He views each outing with a fresh perspective, which allows him to maintain a thoughtful demeanor and an open mind and develop more effective expert opinions.

Check out the entire episode for our discussion on the expert-attorney relationship, using demonstratives, and enjoying the challenge.

 

Episode Transcript:

Note:    Transcript has been lightly edited for clarity.

Host:    Noah Bolmer, Round Table Group

Guest:  Michael Maxwell, Managing Partner of Maxwell and Partners, LLC

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Mr. Michael Maxwell to the show. Mr. Maxwell is the Managing Partner at Maxwell and Partners LLC, a development and consulting firm specializing in complex real estate litigation matters. He is an experienced expert witness and former professor at Nova Southeastern University. Mr. Maxwell, thank you for joining me today.

Michael Maxwell: Thank you for inviting me, Noah. It’s a real pleasure.

Noah Bolmer: With over 30 years, or more, of experience in real estate, how did you first become involved and interested in expert witnessing work?

Michael Maxwell: That’s a good question. It found me. I was trained as an architect and city planner, so you never think about doing those roles. You’re there to solve problems. I was working in regulatory work and was assisting on some complex projects as a consultant for landowners, and the attorney I was working with on that endeavor said, “I think you’d be a good expert for a case that we’re doing. I said, “Really?” and they said, “You’ve demonstrated that in your work. Let’s see what you’d be like in court.” That was back in the 1980s.

Noah Bolmer: Were you familiar with expert witnessing at that point? Was that on your radar, or did it come out of the blue?

Michael Maxwell: No, I hadn’t even been in traffic court. I knew all about the legal process and regulations and how the court system worked from my role in government, and planning, but in terms of being an expert, no, I didn’t think of myself as such.

Noah Bolmer: Were you able to find somebody to do any mentoring or show you the ropes or was it just the attorney?

Michael Maxwell: No, not at all. I wish I had it mentioned to me, but no one showed me the ropes. I was thrown in and it was you’re either going to swim or drown. Take your pick. That’s how I became an expert witness. It was on-the-job training. After all these years, I’m still learning and seeking to improve myself with every case.

Noah Bolmer: For some of our newer experts, what were some of the things that you wish you had known when you were first thrown into the deep end of the pool?

Michael Maxwell: I wish I had known about asking for a mentor to advise me. In some of these early cases. I wouldn’t have spent the same amount of time I did and would have been more confident. On-the-job learning can take quite a bit of time, and from that, you’re going to build your work versus what it is that you’re learning. I like to be ethical in all my dealings. That on-the-job training got to me. I also learned more by reading about all the subject areas. I got into how things would work with others in some cases that I was involved in. I still consult clients on a large diversity of real estate issues. In the realm of real estate, much of my work focuses on solving complex problems related to construction, land use, and sale projects, and then working with owners and attorneys on strategies, not only for court cases but for development.

Noah Bolmer: Is there a significant difference in the different types of cases that you choose to undertake?

Michael Maxwell: I think every case is unique. When we talk about a different type of case, I think every case is a different type of case because the players are different. You may be playing soccer, but at the same time it’s a different field and a different team. Each case tends to be unique, and I try my best to not only adapt to that, but I look forward to it as well because it’s stimulating to meet new people, and to meet new challenges.

Noah Bolmer: When you get that call and somebody says, “I’ve got this case, and I think that you’re the right person.” How do you determine whether you are the right person for a case? How do you know that your expertise is going to be a great fit for an engagement?

Michael Maxwell: First, I look at what’s going on and what’s being asked of me. My expertise includes construction issues, due diligence, finance, entitlements, contracts, and different ownership structures. Land use, zoning, and historic preservation tend to be in my overall wheelhouse, and I’ve been asked to do certain things out of that, I tend not to try to take those cases. I look at how I am going to work on this case. Working with counsel is important, but to understand if the case fits well, I must listen. I need to read what it is [for the team’s sake] I need to understand. I need to understand what the team wants me to achieve and is that something that I think I can do based on what I have read and heard? That’s essential and the basis of all my attorney communications. In terms of fitting, Round Table Group has recently sent me several projects that I referred to other people because I didn’t feel my expertise was a fit, and I knew others I could refer to who would be on the spot for their needs.

Noah Bolmer: You mentioned Round Table Group, do you find expert witness referral services to be particularly useful?

Michael Maxwell: Yes, I do. Since I’ve been involved with Round Table Group, it has asked me to contemplate a number of cases, several of which I’ve taken, and I enjoy working with them. It is easy, and when I say easy, it follows a standard format. It moves quickly, and decisions are made. They take care of billing, retainer, and contract issues for me. I feel good about working with them. I can’t do that with other companies to the same extent that I can with Round Table Group. I’m involved with several others because I try to have cases ongoing all the time if I can. and with some companies, you have to build backward, but with Round Table Group, I’m able to achieve a retainer. We’ve all been in this business and not got paid. I always like to get paid for what I do.

Noah Bolmer: That’s great to hear. I’m glad that Round Table Group has been working out for you. You mentioned teams and that’s an interesting topic. How often does your work on a trial team involve you working with other expert witnesses, paralegals, and consultants? What does a typical trial team consist of and how is your interaction among the various pieces?

Michael Maxwell: In terms of teams, every project is different. I’ll give you an example. I’m working with several attorneys presently on a dispute between a purchaser and a buyer. It’s an after the fact dispute occurring long after the property had closed. The team consists of two attorneys because you must remember that everything is discoverable, so we must be careful in how we structure our communications. If I send notes off to a group of assistants and ask them to do something that’s going to be discoverable. Whereas the telephone call that I have with them is not discoverable. If they ask, “Do you have any notes?” I answer, “No, I just remembered it all.” There’s a lot of give and take with that. The other thing that I enjoy doing and I figure this out when I take a project on, and that is do you want me to write an expert report? Do you want me to evaluate this with the evidence and then present a neutral report or do you want me to be part of your strategy? The team I’m working with now has two excellent attorneys, and we have periodic calls where I say, “I think you should look at this.” That’s me telling them they can use my expert ability to help their case in the best way possible. I’ve referred many things to them, and we’ve looked at bringing in other experts who will support small issues. They’re not real estate people. They’re lawyers arguing the case, and I’m trying to help them understand the realm of real estate and how it works. It’s a two-way effort, and I enjoy doing it. I’ve worked on other cases where they said, “You’re going to be deposed, and here is the information you are going to present on a certain day.” Then right before trial, they say, “Don’t say this or don’t say that.” I don’t enjoy working with them. That’s not how I think I can add value to my cases. I enjoy working on part of the strategy with them; and going over the information to make sure it is “A” correct; and “B” the person that we are getting that evidence from has some credibility. What is this written evidence? What does the documentary evidence say and how does that relate to what we’re doing? Then I work with them as we put it all together. I’ll say, “Here’s where I’m going with this, and here is what I’ve got.” We bounce that back and forth, so it’s time on the phone and sometimes a bit of e-mail, too.

Noah Bolmer: Do you advocate for a more proactive approach? If you’re in the other type of situation where the attorneys say like you said before at the deposition, “Don’t say this. Don’t say that. Do you think that expert witnesses need to say, “These are the things that I need to be able to perform my best?” Should experts just perform in the situations in which they find themselves?

Michael Maxwell: I begin the conversation with the attorneys and tell them exactly what you said, “Here’s how I can best help you. It’s up to you to tell me how you want me to interact with you, and I’m more than willing to do that. For my services to be of value to you and give you the impact you want, I think you’re better off working with me so that we can go back and forth on a supportive basis. Otherwise, it’s not a good value.”

Noah Bolmer: Absolutely.

Michael Maxwell: If it’s okay, just show up in court, and we’ll hope for the best.

Noah Bolmer: Can you tell me about some of the different venues you’ve worked in and some of the differences between them?

Michael Maxwell: Let me tell you something. I’ve been in federal court. I’ve represented municipalities and government entities and have worked in several state courts. I’ve worked in civil and criminal courts, bankruptcy courts, supervised settlements, mediation, and arbitration. I’ve even been appointed to run failed businesses by bankruptcy courts. One of the most interesting things was I spent five years unwinding one business with assets in El Salvador and across Florida. El Salvador is not an easy or safe place to necessarily do business. At that time, they were still recovering from their civil war, and I was charged with recovering property and completing the construction necessary to finalize a recovery and sale. I’ve also worked on fraud cases that occurred in Brazil and extended into federal and civil courts in Florida. I’m currently involved in a case in South Carolina, and I’ve done work in and out of Jamaica, so my venues are broad in that regard. I’ll tell you something, it can be nice, but it can be trying too. Zooming is a real help in terms of minimizing one’s travel.

Noah Bolmer: Speaking of travel, when you have to get on an airplane somewhere, how do you manage those expenses? Do they get billed directly to the client or do you make that part of your retainer? Do you get reimbursed? How do you handle travel expenses?

Michael Maxwell: I try wherever possible to receive a reasonable retainer and then work against it. I don’t let the retainer constrain me in any way. I will always tell who I’m working with that I’m going to have travel expenses when we come to our agreement. I have a set of fees that I charge which are gradated by am I going to be talking to you or am I going to be writing a report? Am I going to be deposed or am I going to be on the stand? I have a range of fees that I feel are fair, and they’re generally accepted. I charge a flat fee per day to travel. In other words, if I’m traveling, you will pay me a set amount of money [plus] my expenses. I don’t do first class unless you want me to, but at the same time, I don’t charge for my time other than that flat fee. If we’re going to be engaged the next day in our trial, deposition or whatever, that’s when the hours start accumulating again, but a flat fee per day plus reimbursable expenses is the easiest way to do it.

Noah Bolmer: When you’re traveling to venues all over the world, how important is it that you have some understanding of the differences vis-vis laws, regulations, and the common things? I had one guest tell me that they almost started calling the judges Your Honor; in England, where they don’t use Your Honor. Do you have to make sure that you’re ready for those sorts of eventualities, and if so, how do you go about educating yourself?

Michael Maxwell: I speak Spanish, and I went to school in Mexico and lived on the frontier in El Paso for a number of years, so I understand the Spanish culture, and then as you get into it, you understand that Salvadoran culture is different from Nicaraguan culture which is different from Guatemalan culture, and different parts of Mexico.

Noah Bolmer: Right.

Michael Maxwell: Just like it is in the United States. First, I listen, try to understand, and ask a lot of questions. When I went to Brazil, I had to have a translator with me. I could do most of the work in Spanish when I was in El Salvador. In Jamaica, you just go “Aay, man!” You adapt to what’s there. They have English common law there, so it’s much simpler, except when you’re dealing with land. You’ve got to look at different land systems like roads, chains, and different surveying techniques and then move back and forth between meters and imperial.

Noah Bolmer: As a former professor, does that inform the way you interact with juries and your demeanor because you’re used to explaining things to people?

Michael Maxwell: I was accused of being a professor for years before I was a professor. You’re right, it does. I try to state what the problem is or what the question is, and then methodically move through. This is this. This is this and this is how I got to that. I try to do that in my writing, in support in my reports, and being on the stand. It makes it easier for the judge. Many cases are without a jury. They’re bench trials. When you go through business things it needs to be clear. It also needs to have a set of standards that you apply to , just like you would in academia. This comes from this reliable source, which is accepted by the American Institute of Testing Services or whoever. Your experience gives you the veracity, as well as the gravitas to show the court that your opinion is valid. What you’re saying is accepted and considered normal or standard in terms of the vast and diverse business of real estate.

Noah Bolmer: Speaking of vast and diverse, you told me earlier about your wheelhouse and then named about 2,000 different things that are in your wheelhouse. How do you stay on top of such a broad, diverse, and dynamic niche?

Michael Maxwell: I read a lot and that’s the first thing. I have a good cadre of people that I’m with both in work and sociability. I continue to be involved in my community. I’m active monthly in zoning, and in other matters. I started my career in 1975, so I’ve been around for a long time. There’s an accumulation of knowledge, but it’s also maintaining that knowledge and making sure that I’m on top of it. When I get a case, I also do more research. I want to make sure that a) what I know is current; b) it’s still valid; and c) if there are any industry standards that have changed or been modified over time. Reading, listing, and asking good questions helps focus on what it is that I’ve got to bring to the table.

Noah Bolmer: Is the additional research that you need to do as part of an engagement a billable expense?

Michael Maxwell: I don’t bill it. What I do is to work closely with the attorneys and say, “Here’s what I want to do.” I try to get them to say, “That sounds good or maybe you want to think about it this way or that way.” Working with attorneys is important because I want to have a collegial relationship with those guys. It’s the same as talking to you on the or on Zoom. I want to make sure that it’s pleasant, enjoyable, and productive for both of us. I don’t get into arguments. I’ll listen and if I disagree with something, I’ll think about it before I bring it back up. I’m there to serve them and their needs on the case. I’m not there to solve the case unless I’m working out of bankruptcy. I’m there to be supportive of their arguments.

Noah Bolmer: What do you enjoy about being not only a real estate expert, but an expert witness in general? What is edifying?

Michael Maxwell: Many things. I love learning new things and meeting different people. Coming to understand how a transaction transpired and then fell apart? Or how someone came to understand something different than what they thought was done. The diversity of things. I would say about 60% of my work is for defendants. I’ve done cases where it bordered on elder abuse. I was on a case where there was a vulture fund that came in and bought a property from an elderly man and in dealing with it, you could understand that he was having some cognitive difficulties. He was successful and intelligent, but he couldn’t deliver part of the sale, so he cancelled that sale. They came back two years later and tried to enforce it, and it was wrong. They tried to use all kinds of legal things. They even brought in an appraiser for that transaction. I had never seen an appraisal that this guy had made. What was he going to tell me the value of this property was? The appraisal was done 15 years ago three counties away and it was not related. I enjoy those challenges and trying to figure out interesting things. I also enjoy helping people. That’s always been the thing that I’ve done. I don’t take cases where I’m going to be drawn into any kind of moral question. I’ve got to live with myself, and I’ve turned down cases where can you do X, Y, and Z? I didn’t believe that, and I thought it was best for someone else to take that on. As I said, I have to get up every morning.

Noah Bolmer: You mentioned that you have a 60/40 split between defense and plaintiff cases. Is there a significant difference to an expert witness in working for defense versus plaintiff?

Michael Maxwell: There is a difference. With the defense, you must figure out what the plaintiff is not only looking at, but what it is that they’re alleging that you did or didn’t do. Then piece that together with the documentary evidence and then all the people involved. You’re working backwards on the plaintiff side you’re moving forward with it. You got the complaint and you’re moving a whole set of facts that, up front, to do that. Then you go back and try to support them. One is forward movement, and the other is backward movement. In other words, see where things broke and reconstruct them. It’s called reverse engineering.

Noah Bolmer: One thing that I’m starting to dig into a little bit is pre-trial or pre-deposition routines. Do you have anything that you like to do to get yourself ready for the day? It could be hours and hours of a deposition. It could be a difficult cross-examination. Do you make sure you eat something or not? What is your pretrial or pre-deposition routine?

Michael Maxwell: Usually, on a pretrial pre-deposition, I’m going to meditate, and I’m going to bring myself to a calm level. I’m going to minimize the amount of coffee that I drink. I’m going to drink a lot of lemon water because I dry out from being asked questions and providing answers. Also, I try to maintain a calm composure. This is business, This is court, and it’s about facts, not emotion. It’s about what we need to solve today and how I can best do that. I grew up in the military, and I tend to be respectful of people and their opinions. I’ve been told that I have a quick mind, but at the same time, I have to work on holding myself back sometimes because I’ll get the question, and I’ll answer. Ask the question, and there’s a little corollary that goes along with it. I always try to make sure that I give a good pause before answering a question. Look at them directly to make sure that the attorney’s face says, “I’m done. It’s your turn to answer.” I usually bring notes in a binder. For the most part, those have already been discovered, but they are aids for me to look at while we’re talking so that I don’t make mistakes. We all make mistakes. It’s about trying to align everything as best as possible.

Noah Bolmer: When you are in front of a jury or even in your expert witness reports, do you ever use demonstratives such as charts, graphs, models, etc.?

Michael Maxwell: You bet. I did a case that devolved from a zoning issue where a county government had promised to change the zoning on a piece of property that was being taken for major habitat restoration and preservation. The wonderful thing about it was the county kept refusing, thinking, “We’ll let this go through, and we won’t do that so we’ll save all this money. Well, no. The sale closed. It had to, but the property owner was angry because they were promised one thing and didn’t get it. Also, this entity could save money. I put together a number of graphics and showed what had happened to it in addition to spreadsheets and what their entitlements were like. As it went through court, they ended up with a $40 million settlement in their favor over and above what they had already been paid for the property. It took a few years to wind that through but the judge cited that.

I did another case on signage and land use regulation. Half of it was graphics to show the court what the standards really were because when you look at the zoning code they weren’t graphic until recently. They just listed things like your sign can’t be X, Y, or Z or can’t do this. I got some graphic people to work with me, and we put a set of graphics together, and the judge cited, “I understand what it is that you were doing. By the way, your client wins.” That was good. It’s important to do that because if people can’t see something, what they do see is what they see is not necessarily what it is. You want to try and show everybody the same thing. If I’m going to show them a picture and say, “This building-“ I have a picture of the building. I don’t want some of them to imagine Cinderella’s Castle and others Uncle Tom’s cabin. I don’t want to there to be differing things in people’s minds. I want to make sure that they see the same thing we’re talking about.

Noah Bolmer: Do you typically produce your own demonstratives, or do you have an outside company building them for you?

Michael Maxwell: It depends on what is that’s needed. In certain cases, I’m skilled enough that I can do them. Then, I have other folks who will create something better than I can so, they will do that. They all have to be done at a separate scale because they’re all admissible. You turn it in one size to get it into the court record, and then when you bring it into court, you blow it up. You want to start and do that that way. In terms of spreadsheets and complex financial matters, you’re looking at sheets that will go on and on and on. It’s about how you take the essence of that and then put that up in court so that it’s impactful. This equals this, and this is why this is this, rather than having these long strings of numbers because it doesn’t make any sense. They’re relying on me to tell that story.

Noah Bolmer:  Do you have any pivotal cases that you can talk about? Obviously, you can’t always give specifics because of various and sundry rules, but in general, are there cases that either reinforced the way you go about expert witnessing or, in some fundamental way, changed the way that you go about some act of expert witnessing?

Michael Maxwell: As I mentioned, everything is unique. Even though being an expert is pretty much the same each time. Each one of these interactions is like meeting other people. Yes, it’s another person, but it’s different. I would say that what changes is my ability to be more flexible in terms of dealing with things. Then, looking at stuff in different ways. I always tell people that I’m an out-of-the-box thinker because I know what the inside of the box looks like because I get inside of the box. I understand what’s in there. Then, I get outside of it and see what’s on the outside. Then put the two together. That’s what I’ve learned more and more. In my early thirties, I was absolutely sure about my first undertakings because I knew it all. I had a master’s degree. I don’t think like that anymore. I have tried hard to look at every angle in each case. For me that’s fun.

Noah Bolmer: It should be fun. You should enjoy your work. Before we wrap up, do you have any last advice for newer expert witnesses or for attorneys working with expert witnesses?

Michael Maxwell: Listen and be kind. Be sympathetic. Be understanding. do your best to try to be a team player. Today, we have different generations working together, and not everybody speaks the same language, even though it may be in English. There are different venues and different cultures. Everything’s a bit different. I do my best to be open-minded, sincere, honest, and ethical. Ethics are so important in court, and if anything, that would be my recommendation to folks. Be as ethical and honest as you can. If you make a mistake, put the nails in your hand first. Admit it. If there are other issues where you don’t know about something, don’t say that you do. Say, “I don’t know that.” or “I can’t answer that question.” Litigation is an expensive process, and we take this on hoping for the best. It’s up to us as experts to do the best that we can for the people who have retained us and all of those issues go to the points of ethics. Honesty and the ability to do what you’re asked when you’re asked to. Deliver that work on time, and if needed be flexible, make changes and modifications as the process goes on. In short, it’s just being a human being.

Noah Bolmer: Sage advice. Excellent. Mr. Maxwell, thank you for joining me today.

Michael Maxwell: Noah, thank you for having me. It’s been a real pleasure.

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

Michael Maxwell, Managing Partner of Maxwell and Partners, LLC

Michael Maxwell is the Managing Partner of Maxwell and Partners, LLC, a firm specializing in complex real estate litigation matters. He is a sought-after expert witness with over three decades of experience and a former professor at Nova Southeastern University.