In this episode…

According to guest, Professor Stephen Diamond, having a great deal of expertise does not necessarily correspond to being a great testifying expert witness. The ability to use your knowledge and experience to research and opine upon the specifics of the case’s unique fact pattern differentiates the two, which comes with experience.

Check out the entire episode for our discussion on encouragement from attorneys, when to say “no” to engagements, and the importance of frank conversations.

In this episode…

Our guest, Professor Stephen Diamond, is an Associate Professor of Law at Santa Clara University and an expert witness for law firms on a wide range of business and governance issues. He is a published author, researcher, and recipient of an SSRC MacArthur Foundation Fellowship in International Peace and Security. Professor Diamond holds a JD from Yale and a PhD in Political Science from the University of London.

According to Professor Diamond, having a great deal of expertise does not necessarily correspond to being a great testifying expert witness. The ability to use your knowledge and experience to research and opine upon the specifics of the case’s unique fact pattern differentiates the two, which comes with experience.

Check out the entire episode for our discussion on encouragement from attorneys, when to say “no” to engagements, and the importance of frank conversations.

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer: Round Table Group

Guest: Stephen Diamond, JD, PhD, Associate Professor of Law at Santa Clara University

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome Professor Stephen Diamond to the show. Professor Diamond is an Associate Professor of Law at Santa Clara University and an expert witness for law firms on a wide variety of business and governance issues. He’s a published author, researcher, and recipient of a SSRC MacArthur Foundation Fellowship in International Peace and Security. Professor Diamond holds a JD from Yale and a PhD in Political Science from the University of London. Mr. Diamond, thank you for joining me here at the Round Table.

Professor Stephen Diamond: Thank you, Noah. 

Noah Bolmer: You’re an established attorney, academic, and researcher; how did you first get into expert witnessing?

Professor Stephen Diamond: I joined the faculty at Santa Clara Law School in 1999 after five years of long hours as a corporate associate of two major law firms. It wasn’t until I got tenure that I turned my attention to the possibility of engaging in some outside work consulting and expert witnessing. It was purely happenstance. I got a call out of the blue, I’m not exactly sure how it happened. There may have been someone who said, “Hey, that guy might be perfect for you.” I don’t know, but a San Francisco-based law firm gave me a call. I met with the lawyers, and that was my first expert gig. It went through deposition testimony, and a report but did not go to trial, as many of these matters often do not. Although, I have testified at trial. That was sort of the starting point.

Noah Bolmer: Did you have a lot of experience as an attorney working with expert witnesses in your practice?

Professor Stephen Diamond: Absolutely none. My expertise and- of course there’s a difference between being an expert witness and having expertise. That’s an interesting question, but my expertise and background was as a transactional lawyer as opposed to a litigator. To be honest, it took a while before I ended up in trial testimony. I joked with one of the attorneys [and said], “So this is what the inside of a courtroom looks like?” Stealing a line from Tom Cruise. My background was in transactional law. [In my] four years at Wilson Sonsini Goodrich and Rosati, a leading law firm in Silicon Valley, I [did] a lot of work with high-tech companies. We just never- [we had] limited interaction with the litigation side of the practice.

Noah Bolmer: What was that phone call like as an attorney who hadn’t used expert witnesses and then got a call to become an expert witness? How [did] that phone call go? How [did] you vet the other attorney and decide if you’re the right person for the job?

Professor Stephen Diamond: I knew nothing. I feared nothing. I just dove in, and they never complained. In retrospect, I would have done that first gig differently. [It’s] a little bit like the first pancake. Even if you are- or have had some prior exposure or some sense of what it’s all about, you would still have these transitional issues before you pick up on what’s at issue. What the trier of fact, the judge, and the jury are looking for if you end up at trial. At every step of the process, you’re keeping in mind the fact that you may eventually end up giving trial testimony. It takes several of these for even someone who has some prior understanding of the process, even a litigation background, to put yourself in that seat as an expert witness. It’s an unusual role in the courtroom process. It takes time and several gigs before you begin to iron out the kinks, some of which can be significant as you move forward.

Noah Bolmer: Tell me about that deposition. How was it the first time getting peppered with questions as an expert witness in a deposition?

Professor Stephen Diamond: In retrospect, I made the classic mistake of assuming because I had expertise that I was there as a good testifying expert. It was a good learning experience, and again, I don’t think I gave away much ground. It was a relatively limited business law matter [that] involved limited liability companies (LLCs), which are the fastest growing form of business organization. One where it does take a good deal of experience to unpack the issues at stake in the context of LLCs. You realize you’re in for a grilling, but as I said, I had two very patient, senior experienced litigators working with me who were very encouraging and supportive. They felt they had, from their perspective, someone who would come across as a real-world expert, not a professional expert. That’s another aspect of this. My major focus is teaching, research, and business consulting. I’m available as an expert, but it is not my central career. I hope that I continue to bring expertise into the expert witnessing context. That can be valuable in the right circumstances.

Noah Bolmer: You’ve touched on a little bit- but I’d like to dovetail- let me know what the daylight is. What is the difference between expertise and being an expert?

Professor Stephen Diamond: Sure. By expertise, I mean that ten-thousand-hour rule. If you’ve worked on something for ten thousand hours, you develop expertise. In my five years in corporate transactions, I developed an expertise. It was certainly ten thousand hours because, in the 1990s, we were working a 2500 hours billing. I started in New York at Latham and Watkins, and then after a year, I moved to Wilson Sonsini in Palo Alto, and it was basically non-stop. You were doing deals constantly, from startups to major public companies, M&A, IPOs, venture funding, intellectual property issues, startup formation, and startup governance. I served on the board of two startup companies and later served on the board of a publicly traded company that had been a client. I was in that world in a sense, and still am to a certain extent. Then I teach from that material and that experience. But when you are engaged as an expert witness, it’s usually based on a specific set of issues that are relatively narrow, and most of the teams that I’ve worked with are considered very good. They’ve already thought through precisely where it is they think they need the trier of fact to hear from an expert in order to weigh in on that issue. It’s a question of whether there’s some element within your expertise plus your own ability to analyze the issues, do the research that’s necessary, conduct whatever examination is necessary to draft a report that’s focused on those issues and centers in and is essential to crossing the bridge from expertise to being a good expert. Listening to what the lawyers are looking for because you’re going to waste your time, their time, and more importantly the judge and jury’s time. In other words, if you don’t listen and you’re not focused, it’s not going to happen. It’s not going to go well, and I think that’s the primary issue. Someone with expertise who thinks they know a lot about a lot of things, and they often do 99.9% of those are probably irrelevant. The .01% could be directly relevant and have significant value for all the parties to hear from you.

Noah Bolmer: One of the things you mentioned was that your attorneys, early on, and hopefully going forward, were very encouraging. [They] showed you the ropes and walked you through it. What are some of the things attorneys can do and should be doing with newer expert witnesses when they’re just getting started? How do they best prepare a newer expert witness for depositions, reports, and trials?

Professor Stephen Diamond: Obviously, they have to tread an important line. They’re bringing in an expert to aid the trier of fact, not to be an advocate. At the same time, they want to be effective in the interests of their client and the issues they’re litigating. The number one thing to make clear is if they’re working with someone who’s a newbie, but who has a certain ability, background, and experience. You want to help educate them, and most professionals who are considering making this transitional step, adding this area of activity to their professional life as an expert witness, will know and be savvy enough to realize this is a different setting. Someone like me is relatively unusual. Literally going from knowing nothing about it but will be open to being educated by the attorneys about what it is they’re looking for. If you can’t provide it, say no. [Being an] expert witness is a lucrative profession if you are successful at it, and it’s tempting to want to say yes, but you have to think it through carefully whether it is right for you. Initially, when you are working with a relatively new, less experienced expert you need to make sure they understand what the role of the expert is and then map out the process, time frames, and expectations. Then, step back and let the expert do his or her own work. It isn’t a genuine opinion that the expert can stand by under the duress of cross-examination.

Noah Bolmer: As an attorney, do you ever find yourself more assertive when it comes to questioning things or simply asking questions of your engaging attorney?

Professor Stephen Diamond: I do ask questions about making sure I understand what the issues are. I try to listen very carefully in these initial calls to what it is they’re doing. Then I turn to reading the complaint and any other papers available on the matter. You do want to balance not having to do work that you’re not being compensated for, and, in my view, you want to be able to be engaged prior to giving an opinion. It is not the role of the expert when they receive a call from an attorney to say, “I can opine that you are correct.” Because that’s not true. You don’t know, and that undermines your potential objectivity and portability as a witness or potentially to it down the road. It’s a question of making sure that you do get clarity, and again, most of the time, I’ve had the good fortune to be working with what I think are top-notch litigators with teams that are experienced. I’ve had situations where they’ve drilled me initially, and it hasn’t gone forward because we come up against an issue where we realize, “That’s not going to work.” It’s not a good fit, and you can’t feel bad about that. As one academic colleague of mine once said to me many years ago, [when] I was applying for my first job coming out of law school. I wasn’t getting offers from every single firm, and I was very lucky in terms of the number of offers I got. I was sort of expressing disappointment, and he said, “Look, they know a lot more about what would happen to you at that firm than you do. They’re doing you a favor.” If you engage with a firm that asks you certain questions, it doesn’t lead to an engagement. That’s not necessarily a bad thing.” That’s the importance of that first interaction between the expert and the potential firm or corporation that’s going to engage you because they’ll want to know if it’s a fit. That’s valuable to you upfront.

Noah Bolmer: On the other side of that coin, do you find yourself turning down a significant number of engagements?

Professor Stephen Diamond: I couldn’t give you the numbers. There are situations where I feel as if being a lawyer is a tough business. There are- when you move into smaller firms, they’re under enormous pressure in terms of billing and opportunities and they’re under pressure from their clients to get results. They may push for certain out, and there may be situations in which you say to yourself, “Well for me, this is not the appropriate fit.” Being able to tell some firms or some lawyers upfront, “This is not what I do. This is off-center.” [For] those of us who are in academia, over time, we all accumulate titles, degrees, awards, etcetera, and they are earned. That’s impressive. But at the same time that’s not enough. A lawyer that wants to hire you because they think, “We’ll put him in the courtroom, and that’ll be great.” Even if they’re experienced litigators, it turns out that some litigators [that] have made themselves, may have limited experience with expert witnessing. You have to be cautious to a certain extent, but generally speaking, If I turn something down, it’s because they say to me, “We’re looking for XY and Z” and I say, “I don’t have that expertise. That’s outside of my area.”  [They’ll say], “Fair enough. We will go look for someone else” or I [may] have a referral for them to work with. For example, I don’t have direct expertise in the nonprofit sector. My wife is in the nonprofit sector, but I don’t consider myself credible as an expert witness in the nonprofit sector. Even though it’s a branch, if you will, of corporate law, certainly with respect to corporate law issues, fiduciary duty, et cetera. There are so many tax and other regulatory aspects to nonprofit work right that I would if someone came to me on nonprofit work, I would look for a colleague or acquaintance in another law school or my faculty that might be more appropriate.

Noah Bolmer: That’s an interesting dichotomy between academia and practical experience. How important is it that there is some split between the two? Can a pure academic or a pure experienced professional be as good of an expert witness as somebody who has both?

Professor Stephen Diamond: I think so. Academics have to go through a process like learning by fire, if you will, to be able to understand how you need to shape academic expertise into usable, applicable, and relevant testimony. If you take a very narrow area where there’s a direct crossover, let’s say valuation issues or price impact of securities fraud. These are two big areas where experts are brought in. I don’t do valuation per se, although I understand how businesses are valued, but I don’t crunch the numbers the way, let’s say someone with an accounting or financial Excel spreadsheet background would. There are financial economists who do that kind of work, like, let’s say the price impact. They don’t tend to do evaluations, but financial economists do securities-related work. They’re very interested in capital markets and whether stock markets are efficient and how inside information impacts stock prices, etc. The quantitative methods are perhaps the same. You don’t necessarily need the same level of bells and whistles that you might put into a paper published in a peer-reviewed finance journal in the courtroom, but you certainly need credible, acceptable methods of evaluating the price impact of inside information or fraudulent information on a stock price. You’ve got the same methodology. Now, someone who’s trying to get tenure or a full professor in the finance department of a major business school who is called into the courtroom for the first time is going to need help in how to shape this into a report that’s going to make sense to a judge, a jury and is going to provide the attorneys with the credible impact they want to have on the other part of the litigation. That’s not going to be an easy task for someone who’s sitting in an academic office setting, crunching out peer-reviewed papers, and then turning to being an expert in court. You can’t just walk across the hall or down the street and do that, but you can get there if you’re interested. Of course, they’re good financial economists and valuation experts who have both academic and real-world experience.

Noah Bolmer: How do you maintain that experience? Do you-? Obviously, you’re a well-published researcher. Do you go to any industry or trade events, anything like that? How do you stay on top of such a broad number of fields even though they are interrelated? It is a rather broad expertise.

Professor Stephen Diamond: My background as a political scientist is not the kind of thing that I think is ever likely to end up in court. That’s a whole other world dealing with international relations, development, [and] economics range of issues. There is some crossover between my academic and my economic work because I’ve been working on climate change, and there’s an interesting impact on climate change in the developing world. But you’re right, that’s separate. But when it comes to business issues and financial issues, well, I live in Silicon Valley, and I’m at home now literally surrounded- I could walk in any direction, knock on a door, and probably find a current or retired Silicon Valley executive. It’s so it- and I’m teaching. I’ve had board seats and advised startups, and right now, I’m working on advising a venture capital fund and an interesting life sciences startup. It’s sort of in the mix here. You mentioned that you live in Nashville, so I imagine you hear a fair amount of music. Silicon Valley is the Nashville of high-tech and business law and-

Noah Bolmer: Yes. That’s absolutely accurate. 

Professor Stephen Diamond: Then of course, I teach at the law school, and I have these amazing [and] dynamic students, many of whom are coming in and out of the technology sector. They’re being recruited or working in internships and associate positions in law firms and many of the local companies. We’re a stone’s throw from Cisco, Apple, Intel, Google, and Facebook. [They] are all within essentially a 20-minute drive. That’s the world I live in. I moved out here in 1995 just as Netscape was going public, and so I have teaching, research, consulting, and then expert work.

Noah Bolmer: Do you find that your role as a professor aids you as an expert witness, in particular with something like connecting with juries? I imagine that it’s similar to connecting with your with your students.

Professor Stephen Diamond: Absolutely. That’s a very important point because I always try to keep in mind from the get-go the potential idea that you end up in trial. In testimony, I’ve only been in judge trials, though so far, which is interesting. Judges are looking for clear, short, concise to-the-point explanations.

Noah Bolmer: Sure, exactly. 

Professor Stephen Diamond: I did have one judge who admonished me. “Why are you drifting around?” I was. Usually, I’m very concise, but in his head one iota off the subject in any direction, and he reined me back in to keep it focused, which is great. I picked up on that [immediately] and did not forget it. The case came out our way [and] everyone was very happy. One of the key aspects of training my business law students is explaining one of [their] key roles, which is being able to explain complex legal concepts or issues to businesspeople. One way of thinking about it is to tell them that you, as lawyers, know there are rules and boxes that you have to fit into. Businesspeople either don’t know that there are boxes and rules or ignore them. So you have to explain these things and keep them out of trouble. The somewhat arcane legal subjects of case law are difficult for people who are not lawyers to grasp. To be able to explain it to businesspeople, for example, is an important skill for a business lawyer. Something akin to that goes on in the process of testifying. It’s useful to make clear in deposition testimony that you know how to do that so that the other party understands that when you’re on the witness stand, you will be able to communicate your opinions clearly, and they may not want that to happen. That’s an important skill and there is some congruity between explaining complex concepts, working with students on developing an understanding of these legal issues, and communicating them to a judge or jury.

Noah Bolmer: [Many] expert witnesses have told me that they’ve found visual aids and multimedia to be effective with connecting, not only with juries but even in a bench trial situation with the judge or whoever the trier of fact is. Even if it’s an arbitration. In reports, there might be a graph or something like that. Have you had experience using visual aids in your role as an expert witness, and similarly in your role as a professor?

Professor Stephen Diamond: Certainly, as a professor, I use PowerPoint every day as I attempt to organize ideas and frame them for students. That hasn’t happened so far in testimony. I think it could be of value, especially when you get into business structures, and I think we might have been headed that way. For example, I was in a case a number of years ago involving a real estate project and real estate projects have a complex sort of waterfall structure and multiple layers of LLCS and other structures inside it. Unpacking all of that visually is important, and I think if we had [gone] to trial, we would have thought about that. In that very first case, we were actually prepared to prepare some visuals. The law firm brought in a visual aid expert who would have worked with me to do that, but I’ve never gotten to that point. It turns out that by the time you get to trial, some trial testimony goes on more than a day, but it’s relatively unusual. It’s usually fairly short and there you’ve narrowed down from an expansive set of issues that you might have been looking at early on in the process to the one or two that the lawyers feel the judge needs to hear.

Noah Bolmer: You’ve worked in both state and federal venues and across several different law areas within your fields. Is there a significant difference in preparation or knowing distinct things about the state or particular laws that experts should be aware of and make sure they ask attorneys before engaging in a new venue or area of law?

Professor Stephen Diamond: I will get calls typically because I’m based here in Silicon Valley, California, and California like every state, has its own corporation code or corporation law. They all now have their own limited liability company (LLC) statutes. There’s a particular familiarity you’ll have with how judges and the courts have interpreted those statutes, and lawyers will be looking for that kind of expertise when it comes to federal court. For example, in securities law, this is not an issue. There are, of course, differences among the circuits about certain standards and you get circuit splits occasionally on key issues, but if you’re opining on whether or not there should have been disclosure or the impact of this kind of business decision, it seems less of an issue. I’ve not yet heard a law firm indicate that was a concern when it comes to being in federal court, but I imagine in some circumstances it might be, but I just haven’t encountered it yet. 

Noah Bolmer: What are some aspects of the attorney-expert relationship that make for a positive engagement? What are the things that experts and attorneys should be looking for or doing to make sure that everything goes smoothly and positively? 

Professor Stephen Diamond: For me, the most helpful thing is regular communication. That gives me a clear sense of when things are due and what the timeline is. I’ve had any number of instances, and this is true with larger firms, smaller firms, and even sole practitioners, where it goes silent. [This] is not my full-time gig, so I have other things going on. Obviously, you want to be able to plan and organize your schedule and make sure you have the time blocked out. I recognize their life is probably a lot more hectic than mine. I’m- maybe this is not the right word, but generous with not taking it personally. I mean, it’s not personal, but that’s obviously a real advantage [for getting] clarity. It also helps when they do contact you and engage you, they’re ready to use an expert. You want the work to go forward, and you feel like, “Okay, good. Let’s get into this.” That’s not always the case, and I’ve had many instances where a matter sits for a long time, and then pops back up a year later. COVID, of course, was a big disruptor, and I noticed that business disappeared. Then, the momentum started to pick up again. Getting that support and clarity on timing issues from the retaining firm is always helpful to the expert side Then, being able to clearly focus on the issues that they want to opine on so that you understand the framing of the issues is to their advantage. Finally, and again is generally not an issue, but occasionally, it can pop up. Do they respect the fact that you’re going to give an opinion to the trier of fact? You’re not there to advocate for their client. There is that line, and obviously, they can choose not to go forward with you as an expert if they feel the opinion won’t fit. You want to feel as if they genuinely want to know what your opinion is, and most of the time, I think they’re good at understanding where they think things might end up. I haven’t heard any complaints yet.

Noah Bolmer: Let’s talk about billing for a moment. Do you have any specific terms you like to include in your contracts? In other words, do you prefer to use a retainer? Do you do a project rate or an hourly rate? How do you organize your billing?

Professor Stephen Diamond: I like to keep it as simple as possible. One of the things I’m surprised at is that given the transactional background, we have in the world of eminent mergers and acquisitions and securities offerings that I have done for a long time, there are a lot of standard forms. They all get heavily negotiated, but there’s a standard template the industry relies on. Underwriting agreements, for example, but that’s not true apparently in the world of experts. I’m trying to think of a single circumstance in which the client or the law firm sent me an form engagement letter for expert witnesses. It may have happened once or twice, but they typically tend to rely on me. I have a very standard, simple form that I use, and I will tweak it as needed. I try to keep it simple and straightforward because if it isn’t going to work out, we should walk away. If there is a dispute resolution mechanism in there, I hope that never has to happen, and it hasn’t come up in 18- 16 years of doing this. I like a simple hourly rate. You pay me for all my time. If there’s travel, and travel is relatively rare, but it could happen, or other expenses reimburse me reasonably. I still generally work remotely due to COVID because we have a disabled son, and that’s an important caveat that may not be true for many experts. If I were called to testify in court in person, I would do it, but I try to keep it remote. I work via Zoom, and that’s worked out well. I’ve done trials in court, and I’ve done them on Zoom, and it’s actually quite effective and efficient I think. Otherwise, I keep the structure simple. I like an upfront retainer of a modest amount, and I apply it against my first few hours. These days, I keep it non-refundable, so everyone has some skin in the game. It’s not a large amount of money and I try to maintain some flexibility in that regard. Obviously, if I’m seeing a repeat client I’m more flexible.

The biggest concern I should say, now that we’re talking about billing issues, is that it appears that all lawyers and law firms have different methods for deciding when they will pay people. Which I find interesting. They’re in the business of billing their clients, and I always tell my students, “Look one of the reasons we get so many lawyer jokes from our business clients is because we, as lawyers- that is, are a cost center. We usually like to be paid on time and in cash and that’s something that businesspeople sometimes bristle at.” On that side, you would think lawyers would be saying, “Let’s make sure we do this with the expert witness.” Sometimes payments can stretch out if they are a smaller firm, a solo practitioner, and they’re working with an individual client as opposed to a corporation or another business entity, you have to be ready for that. For example, I’ve done a lot of family law work. That is the business issues related to family assets. Typically, startup companies, venture capital funds, et cetera. Those are a special area of complexity and are more common in Silicon Valley than in other areas. In those circumstances, you are dealing with individuals who are in a stressful family situation. Even wealthy, successful executives going through a divorce and settlement find cash flow challenging. If you’re going to be in that kind of setting, you have to be ready for that.

Noah Bolmer: Without giving any specifics, are there any cases that come to mind that inform how you go about being an expert witness, good or bad, that made a difference in your career as an expert witness?

Professor Stephen Diamond: There was one case, and I’ll talk about it in general terms, that was a point at which I gained my footing if you will. It involved a battle between two large global technology companies over two small startup companies that was very distant in their past history. There was a battle over the IP and behavior of one of the founders. It all rolled forward twenty years later into this big, expensive legal battle between these two large companies. It was a very time-consuming expert gig. So much so at one point that I, and this shows some of my naivete, called one of the engaging partners at a major law firm. I said, “Look, I don’t want to apologize exactly, but I realize my bill is fairly large.” He laughed and said, “Steve, your fees are a drop in the bucket.” He read off the number, and I won’t say what it was, but the number was very, very large. I was literally pocket lint for what these firms were spending over this fight that brought in a lot of large firms. When I was deposed, there were five major corporate firms in the room and a very well-known solo practitioner litigator specialist they brought in to cross-examine me. The irony was he had once tried to engage me for an earlier case, and I said, “No.” There was a conflict.

We haven’t brought this up, and maybe it would be useful to newer, less experienced experts out there; to know your CV. Know your life history, even things that, for some reason, haven’t ended up on your CV. Because if there are three other major corporate firms on the other side of the table, in-house counsel, and an outside litigator, they will find it. That was one deposition where, and it still cracks me up, but at the time, I was like, “Are you kidding?” They brought up an op-ed I had written in the wake of 9/11 about international terrorism. Now, I have expertise, so to speak, in international relations, and in college, I spent a semester at the Carnegie Endowment for International Peace studying under the future Ambassador to the United Nations on a project on terrorism. I’ve done research on conflicts in the developing world. We have a book about the Nicaraguan Civil War, so I have some expertise in this area. I wrote the op-ed about how to deal with international terrorism after 9/11. I can’t remember how this got into it, but they tried to ask some questions about that op-ed that had no relevance at the end of the day, but they were looking for something. What was going on was something that you’ll see as an experienced expert over time. If they think your opinion is strong, they will never bring it up in the deposition. They’ll rake over your CV and look for something that can undermine your credibility as a witness.

Noah Bolmer: Along those lines, as somebody who’s well-published, how do you maintain a database of everything that you’ve ever said about every topic to make sure that you’re ready for it?

Professor Stephen Diamond: You get used to it. I have to say there’s one reason why I’ve never been interested in the possibility of public office or some kind of government appointment. You hear about these congressional hearings. I did get a call once when the Biden administration first came into office from some senior people in Washington, DC. “Are you interested in possibly-” and I said, “As long as it doesn’t involve a Congressional nomination, throw my hat in the ring.” I didn’t want to have to- I have testified in front of the US Senate, but I was not there as a potential nominee, and they weren’t- my CV was part of the record, but none of the Senators, even the ones who were hostile to my position. [It] was a discussion over accounting for stock options, [which is an] arcane issue. They will drill down on your CV.

Noah Bolmer: Speaking of CVs, how do you go about getting work? Have you had good luck with expert witness referral agencies?

Professor Stephen Diamond: The referral agencies have been very helpful. I can’t say what percentage, but I always enjoy getting a call from an expert agency like Round Table Group because I know it’s going to be- it’s going to be a professional experience and that’s valuable. I have a large law firm background, and I prefer working with large, established law firms. I will also work with small firms and solo practitioners and have done a lot of that in the Bay Area and elsewhere. The nice thing about groups like Round Table Group is there’s an accumulation of experience. There are contacts. It’s a streamlined and efficient experience. They’re good at communicating. Sometimes, it’s out of their control, and there have been times when, six months later, I get an e-mail saying, “They finally decided to go in another direction” or “They finally decided they don’t need an expert” and I realize, of course, that’s not Round Table Group’s problem. I’m always happy to get that call or e-mail.

Noah Bolmer: Before we wrap up, do you have any last advice for newer expert witnesses or even attorneys who are working with newer expert witnesses?

Professor Stephen Diamond: The one thing I think there ought to be more attention paid to the role of experts in law school. One thing Round Table Group might think about doing is working with law schools about doing some round tables, if you will, about the role of experts. I never got exposure to- I went to Yale, [and there were] a lot of things we didn’t get exposed to, is about how to be an actual lawyer. That’s a whole other conversation. I’m sure in some law schools in the litigation classes, there are people paying attention, but there isn’t that kind of focus, and it’s an important area for litigators. It is important for younger lawyers to learn how to handle experts. Then, for the newer experts or people who are looking to do this, have very frank conversations with colleagues or friends. If I refer a matter to someone, let’s say in my faculty or another faculty who I know hasn’t been an expert, I always indicate a willingness to talk to them about it, right? And give them some insight on what’s expected in these circumstances, in terms of work product, compensation, managing the relationship with the law firm, etc.

Noah Bolmer: Sage advice. Thank you, Professor Diamond, for joining me here at the Round Table.

Professor Stephen Diamond: Thank you, Noah, for the time and opportunity to talk to you.

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

Stephen Diamond, Law Professor, Santa Clara University

Professor Stephen Diamond is an Associate Professor of Law at Santa Clara University and an expert witness for law firms on a wide range of business and governance issues. He is a published author, researcher, and recipient of an SSRC MacArthur Foundation Fellowship in International Peace and Security. Professor Diamond holds a JD from Yale and a PhD in Political Science from the University of London.