In this episode:

During cross-examination, while getting into the rhythm of answering questions, the opposing counsel can trick you if you aren’t careful. Our guest, Mr. Richard Leisner, recommends processing each question as it comes, making sure you fully understand it before answering—or asking for clarification when you don’t. Good lawyers will prepare experts for this tactic, but it is important to remain thoughtful, without slipping into automatic answering.

Check out the episode for our full discussion, including hourly engagements, tracking your opinions over time, and personal conflicts.

Episode Transcript 

Note: Transcript has been lightly edited for clarity 

Host: Noah Bolmer, Round Table Group

Guest: Richard Leisner, Corporate and Securities Lawyer at Trenam Law

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today’s guest is Richard Leisner. Mr. Leisner is a senior corporate and securities transactions attorney at Trenam Law and an expert witness in high-stakes business litigation and legal malpractice actions. He holds [several] distinctions, including Tampa Magazine’s Top Lawyers List, and is a published author of many articles and legal blogs. Mr. Leisner holds a JD from the University of Pennsylvania. Mr. Leisner, thank you for joining me here today at the Round Table. 

Richard Leisner: I’m glad to be here, you made me sound pretty good. 

Noah Bolmer: You have a storied career. Let’s jump into it. You have over half a century of experience as an attorney, but simultaneously, you’re a sought-after expert witness, which gives you a unique perspective on both sides. How did you first get into expert witnessing? 

Richard Leisner: I got a phone call from a retired senior official from the SEC (Securities and Exchange Commission) with whom the bar had done a lot of work. She was a storied corporate finance lawyer at the SEC. A woman named Mary T. “Mickey” Beach. She said, “You might like to do this defending this big national accounting firm out in Spokane. I’m not going to do it because I’m going to China.” She was like a big sister to me, [so] I said, “okay” and the next thing I knew, I was doing my first expert witness gig. 

Noah Bolmer: Have you been using- had you been using expert witnesses up until that point? When was this? 

Richard Leisner: No This was more than 20 years ago or the turn of the century, and I was a deal lawyer for companies’ . . . public. I buy them, I sell them. We’re a little unusual because we’re out in the sticks. I have a broader base of transactional experience than if I’d stayed in New York where I started. I’ve done IPO’s. I’ve done spin-offs. I’ve done split-ups. I’ve written option plans. I’ve done Stock Exchange listings. I’ve defended SEC investigations, and what I have said is that if a deal is screwed up, which is what you wind up with in expert witness cases, chances are I might have tried to do it correctly during my career as a transactions lawyer. I do a lot fewer transactions now than I used to. Since I took senior status at the firm a few years ago, I’m on Associate’s Row. People will come down the hall and say, “Rich, what do you think about this? No, we can’t bill for this, but they told me I should come and talk to you.” 

I never used an expert. I didn’t know an expert from Adam, so I got on the phone with a senior partner at a well-known national law firm because the accounting firm was a national accounting firm although the litigation was in Spokane, and he said, “Why don’t you tell me what you think about the issue in the complaint?”  I wrote him a letter. I didn’t know what an expert report was or what Rule 26 required, which is where all the guidance for federal expert reports is. Although one of my partners mentioned to me the other day that Rule 26 was a lot thinner when I started doing this than it is today. I didn’t know anything about that. If you’re going to be an expert the first thing to do Is to read the instruction book, which are a couple of the federal rules. Even if you’re in state court, you need to know that. I went to Spokane, where the courtroom looks just like something out of Back to the Future. I had some terrific lawyers, including the local counsel, who gave me the master class in what you should and shouldn’t be doing when you’re an expert. I lucked out from that association. My guys won that there was zero liability verdict, and the case was appealed on my testimony. The judge said, “Oh, Leisner’s testimony is okay” but they didn’t report it. So it’s an unreported opinion from a long time ago. 

Noah Bolmer: Absolutely. Was there anything that surprised you about being an expert witness as an attorney? Something that was unexpected or anything that was- you’ve been in law for so long, was there anything surprising [about] working for an attorney rather than as an attorney?  

Richard Leisner: I had been in one case about seven, eight, or fifteen years before that. But I never did more. It was my first and only case. It was a criminal case. Fifty-six counts and a not guilty at the end of a one-week trial. I didn’t know what experts can and can’t testify about. They asked me what I thought about the person whose side we were on. What they had done and the real estate he had sold were securities. I said “No.” I started explaining why one of the charges couldn’t go forward because the events didn’t take place in Florida. The judge held up his hand, cleared the courtroom, and said, “I’ll decide the law around here.” I had taught law school, so I thought everybody wanted to know what I thought and was very cognizant, which I wasn’t when I started. Where the line is. The job of an expert is to assist the fact finder in understanding something that’s either complicated, like in my area, or where there are numbers where somebody’s going to get a quant to come in and show science, numbers, or calculations. That is appropriate for expert witness testimony, but you could also come in and say whether the lawyer in question met the applicable standard of care or didn’t meet the applicable standard of care. What you don’t want to say is, “I believe the lawyer committed malpractice.” That would be a bad idea because the judge might say that’s not for you to decide.” That’s for the fact finder to decide. A good  teacher like Bill Nye the Science Guy. They can explain something that is complicated in a way that people can understand and don’t think you’re talking down to them. 

Noah Bolmer: Do you feel that the engaging attorney dropped the ball engaging a new expert witness and not setting those boundaries and letting you know what you should and shouldn’t be talking about. Maybe, how to write an expert report and things like that. 

Richard Leisner: There is no required expert report in a criminal case. We can talk about criminal actions because I’ve done half a dozen criminal cases, and they are like the Wild West. They’re not like Perry Mason. When I got hired the first time and went to Spokane [for a civil case], nobody told me what to do. They asked, “What do you think of that?” I told them what I thought in a letter, and that turned out to be the expert report. We were in state court where you don’t have the firm requirements of federal law. It was a national law firm that hired me and no, they didn’t help me very much at all. I got help from some of my partners in the office.  

Noah Bolmer: What should prospective counsel ask their expert witnesses during the initial phone call, and what should the expert witness make sure to ask the attorney if the attorney hasn’t already said?  

Richard Leisner: Let’s go from the expert side because I love experts. First, you have multiple objectives in that first phone call, and because I work at a big law firm with more than one hundred professionals, I can’t do much of anything until I check conflicts. Let’s assume for this part of the discussion, we check conflicts, and there aren’t any. Then, the objective is to try to find out whether your experience and expertise as an expert match what appears to be the important issues of the case, and on which expert testimony can provide assistance. That’s something you can’t tell right away. Now, if you’re the expert, you should read the complaint or the most recent amended complaint, which might be more informative. The caution I would give to a new expert or any expert, is to try to stay in your lane. Even though everybody you know doesn’t. I can give an expert an “I think I can do that.” Well, you can’t, or you shouldn’t. 

The second thing not many litigators do early on is to decide whether there’s a positional conflict. Whether you’ve given an opinion on facts like this previously and now you’re going to say, “Well, that didn’t count.” Or did- or, you know, and it has happened rarely., where I’ve said, and very occasionally the other side has tried to hire me after I’m already on board with somebody else. You want to find out whether the opinions you’re going to give will run into opinions you’ve already given on similar facts. 

Noah Bolmer: How do you keep track of every opinion? I mean in a career as long as yours, how do you keep track of every opinion you’ve ever given on a topic to make sure that there are no conflicts? 

Richard Leisner: I have a messy spreadsheet because, under the existing rules, you have to make disclosures of previous cases that- they don’t [need] to go back [more than] four years. I try to keep track of them and think if I have ever been asked that before, and so far, so good. I haven’t screwed up where I’ve agreed to give an opinion on something. I get a lot of calls that don’t turn into engagements, and I have a separate stack for them over in the corner of my office. I try to keep track of people who call. In year one I got a call from a guy who I didn’t know, and he asked me about a set of facts and said, “Would you be available to give an expert opinion on that and say that the law firm in the deal screwed up?” I said, “Based on what you told me, I certainly would, and I’d think about it.” A year and a half goes by [and a] completely different lawyer calls me up and says, “Would you defend this Washington law firm in a malpractice case?” I was engaged. I write my report, and the first thing that comes back from the counsel for the plaintiff says, “Mr. Leisner, is conflicted out. He already knows secret information about this.” Of course, my blood ran cold. I didn’t have any recollection of it, but it was in my stack of calls, that never went anyplace. I followed the call with an e-mail that said, “If you want to hire me, of course you haven’t hired me. If you want to have an engagement letter.” Anyway, it turns out that a bird dog, not the plaintiff’s lawyer, had contacted me. I saved my notes. My notes were delivered under seal to the judge, and I got to testify. What an experience. I was nervous when I said, “I don’t remember that at all.” The answer is sometimes you don’t remember, and I hadn’t given the opinions. [It} will not surprise you [that] the facts relayed to me in that initial phone call were not confidential. All the information that was in the initial phone call was in the complaint, which, of course, is a public document.  

Noah Bolmer: Sure. 

Richard Leisner: Their view of the facts differed from the view of the facts I got in rendering my report. Not surprisingly. It was in my sweet spot. It was an M &A transaction. 

Noah Bolmer: Are there other reasons that you’ve turned down engagements? You said you have a stack of first calls that don’t turn into engagements. What are some of the primary reasons for turning down an engagement? 

Richard Leisner: Sometimes, and this happens most often, you get a call at 4:00 on a Friday afternoon from a young associate at a national law firm asking you if you can work on a case. One of the things you asked and we haven’t got to yet, is what’s the timing of this? Invariably, in four days, they need to make a disclosure. After that, they agreed to deliver an expert report, so either they didn’t do a good job of managing their time or the first expert was no longer involved. If the timing’s not right. If you don’t have enough time to review the record and do the research to give a well-reasoned and well-supported series of opinions. I think you shouldn’t take it. You need between 30 and 60 days to get that expert report done in a complex case. Can you get that extension? Sometimes, you get the extension. Sometimes, they say no, and sometimes you’ll see somebody looking for an expert to testify on one thing for 15 minutes, and they’re going to pay them a small amount of money, at least in my experience. The better engaging counsel thinks that knowledgeable experts can be an important asset to the team and litigation because sometimes deal lawyers know right away things that a litigator won’t know until after they’re into the case. Litigators will get things a mile deep, but maybe not as broad as the transactions lawyer who has done a lot of deals in that area, so sometimes it can be a public help. 

Noah Bolmer: Sure. Absolutely. 

Richard Leisner: The other thing you need to talk about early on is you need to talk about getting paid. 

Noah Bolmer: When you mentioned getting paid, let’s talk about that engagement letter. Are there any specific terms that you make sure that you have in contracts? For instance, do you take a retainer or do you prefer project billing? 

Richard Leisner: Because of my background, I’m an hourly person. I’ve been in some big cases. I was involved in one of the Enron civil cases, and I got to review testimony from other experts. My personal favorite was the expert, and this is over twenty years ago now, where they were billing over $1000 an hour for their work but had a lower rate if they were traveling. 

Noah Bolmer: Ah. 

Richard Leisner: My rates are the same, and if I’m not working on the matter I’m not going to bill for it. My experience is I’ll bill on a straight hourly basis sometimes. When you’re getting started and if you don’t know if you’re going to give an opinion, say, let’s have one bite at the apple for a fixed amount of hourly not to exceed $ 10,000 and I’ll tell you what I think and you can either hire me and go ahead or not. The one thing I think is important among others in getting paid is that you have to be assured that the person who is going to pay you is going to do it. If it’s a national law firm that says you have a higher probability of getting paid. Most law firms want you to be engaged by the law firm to protect the work product with as much confidentiality as possible but to be paid by the client, and I’ll square with that. But I’m going to want a hefty deposit, and I want a deposit that will cover what I’m going to do before deposition or trial. I have the unpaid bills to prove that. Occasionally, things you don’t count on happen, and you don’t get paid. 

Noah Bolmer: Have you noticed a tendency for more actions to move to settlement than they used to? 

Richard Leisner: The answer is yes, but I think that’s way over 90% at least in the things I’m involved in. It would be a rare set of circumstances where I wouldn’t want a hefty deposit before I started working. The answer is to have a hefty deposit to get started. If there’s a problem getting paid at this part what makes you think there isn’t going to be a problem getting paid later on? 

Noah Bolmer: Let’s move forward to preparations for depositions and cross-examinations. How do you get ready for getting peppered with a whole bunch of questions by either a judge or the opposing counsel? 

Richard Leisner: If we can, let’s bifurcate this. 

Noah Bolmer: Absolutely. 

Richard Leisner: Depositions and trial testimony was one of the forty-seven things I wish I knew, when I started. One of my partners says you can’t win a case in your deposition, but you could lose it. 

Noah Bolmer: Absolutely. 

Richard Leisner: Your experts make a mistake in thinking that when the opposing counsel is taking their deposition, it’s at the end; there’s going to be a ruling, and your side is going to win. When I say it out loud, you’re laughing, but the natural tendency is to think I want to win this deposition. The deposition is an opportunity for the party calling this opposition. Usually, the other guys find out whether you have weaknesses, problems, or you lose your temper, or that sort of stuff. How good are you at responding to questions? That’s a different undertaking from the trial. 

Let’s talk about depositions. To get ready for the deposition, if there is time between when you wrote your expert report and when you’re going to be deposed, you need to spend a lot of time knowing your expert report inside out. What if you’re in a jurisdiction where there is no expert report? You should have an outline that looks like the front part of an expert report where the opinions are listed. It focuses the mind. It may give you a document you can hand to the person taking the deposition, and it puts you in more control of what happens in the deposition than if they start peppering you with questions. The deposition may or may not be used at trial. If it is used, I’m going to be using its totality. It’s going to be used to impeach you. It’s [will] show that you didn’t know what you were doing. We’re doing a program in the group in July about depositions, and the title is “Depositions are Dangerous to Expert Witnesses.” The questions you’ll get in deposition, you’ll never get in trial. For example: 

Attorney: “Did you read the Smith deposition?” 

Me: “No, I didn’t.” 

Attorney: “You mean to tell the ladies and gentlemen of the jury that the Smith deposition was something you didn’t think was important?” 

Me: “I didn’t read it.” 

That was me 20 years ago, now I’d say, “Is there something in that deposition that you’d like to show me?” That sometimes quiets things down. They’ll say, “Mr. Smith has testified that your client is a horrible person. Would you agree with me?” Those questions need to be processed and then you need to say, “Could you show me Mr. Smith’s testimony, please?” Responding that way, for example, the idea is now: 

Attorney: “Would you agree with me, Mr. Bolmer, that today is Wednesday?” 

Mr. Bolmer: “Yes.” 

Attorney: “Would you agree with me that there are seven days a week?” 

Mr. Bolmer: “Yes, I would.” 

Attorney: “Would you agree with me that your client is a scoundrel?” 

If you’re in that rhythm of answering those questions, you may do something that you’re going to regret later. Your counsel may or may not clean it up, but you have to be wary of that. You have to process the information. Listen, and when you hear things like, “The XYZ contract provides you-” Alarm bells should go off in your head. “Can you show me where in the XYZ contract it says that we don’t have time?” You have to answer my question like he will answer it unless you show me the provision you’re talking about. This happened in a trial once in federal court. I was being cross-examined about my expert report, and the lawyer said, “Now, Mr. Leisner, in your report you said something absolutely stupid, didn’t you?” I said, “Could you show me where that is?” The guy had gone to the lectern without the report, and I knew exactly where it was. I mean, it didn’t say I said something stupid, but it’s another statement. The judge leaned over from the lectern and said, “It’s over here on page 31.” I said to myself, “It’s on page 32” and I didn’t tell them. That just derailed the whole line of questioning because the lawyer wasn’t prepared to show them. I had the same thing happen, I was deposed by one of the lawyers involved in the Oliver North litigation, and he said, “The Smith Lap case says this.” I said, “You have to submit that case.” The junior lawyer he brought with him didn’t have it. You’re required as a deponent to answer every question, but you don’t have to answer every question in a way that makes the person asking the questions happy. By the way, it’s perfectly okay to say, “I don’t know.” It’s also perfectly okay to say, “Yes, today’s Wednesday and I would agree with you on these facts.” That would be my answer. You can’t become wedded to everything good for your side or bad for the other side because the lawyers are so good at asking modifications to questions that you’ll find yourself in a ditch someplace, and you won’t be able to figure out how you got there. 

Noah Bolmer: Should your counsel be preparing you for those sorts of questions and how to answer them? 

Richard Leisner: Obviously, I have scar tissue for it. The good lawyers do, and good lawyers react to vituperative, aggressive counsel calmly. Do not take the bait. This is not TV. I remember I was involved in a malpractice case on the side of the plaintiffs. We had a deposition up in New Haven and I got to walk on the Yale campus before the deposition. It was in a small conference room. The lawyer taking the deposition was a big, tall guy, and he’s got his both hands on the desk, and he’s leaning over and bellowing at me. It was not a video deposition, and I said, “I can hear you just fine. Why don’t you sit down and stop yelling at me?” He said, “Let the record reflect that I have been positively charming throughout this deposition.” I have got to laugh. That was quite a few years ago. I got a laugh out of that myself. Good counsel will prepare you for that kind of stuff and experienced expert witnesses made all the mistakes. I won’t make that mistake again, and I’ve certainly had that walk home from the courtroom or the deposition saying, “If I get to do this again, I’m going to do a better job.” 

Noah Bolmer: You brought up someone making a joke. What is the role of levity in these situations? When is it appropriate to break the tension a little bit with a little bit of joking around like that? 

Richard Leisner: I mentioned to your colleague that the excellent movie League of Their Own has a scene where Tom Hanks, the manager of the ball club, excoriates one of the players for having made the wrong throw to the wrong base and then lets a run it. She’s bawling her eyes out, which exacerbates Tom Hanks and he goes, “There’s no crying in baseball!” Well, in one of my very first depositions. They were asking me all these questions about the expert report, and I didn’t know what the heck they were talking about. Finally, it dawned on me they wanted to know if the lawyers had told me what my opinions were. They hadn’t. I was offended by the question. And I said, “Do I look like a short-order cook in a diner where you come in and order two eggs over easy and home fries?” At the very first break, the senior partner took me out. We were in Seattle, looking at the Puget Sound, and he leaned over to me and, he said “There are no jokes in depositions.” He was right. There can be humor in the court but it shouldn’t be deliberate on your part. That was a mistake on my part. It was out of ignorance. I didn’t know. It stuck with me. It was a beautiful view of Puget Sound, and the very senior partner was as hot as he could be. He’s thinking to himself, “What clown did we hire as our expert here?” It all worked out so I don’t think you should ever crack a joke in a deposition, even if you feel compelled to do so. 

Noah Bolmer: You began to dovetail into trial preparation, and how any contrast comparisons to the preparation techniques that lawyers use or should be using with their expert witnesses to prepare them for the stresses of [being] properly organized for the rigors of being cross-examined. 

Richard Leisner: A lot of this comes down to whether or not your engaging counsel has set aside sufficient time to prepare the expert properly. In my experience, my best performances and preparations for deposition and trial have been with lawyers who prepared me twice. If you know your trial is coming up in two weeks, you should plan a couple of weeks in advance to start to understand the themes of your direct testimony and then practice for cross-examination. This was before Zoom. Now, with Zoom, it’s easy to do. As I said, the lawyers who have done the best job of preparing me have given me sufficient time. While defending the defense of a national law firm during the post-2008 financial meltdown, one of my favorite engaging accounts said to me [before] the deposition, “This lawyer will go crazy if you don’t look at them in the eye.” For five hours, I’m looking at the walls. I’m looking down at the dust. I never looked at this lawyer and it did bother them. 

One of the other times, they prepared me for what I could expect this lawyer to do. We prepared for a couple of days before the deposition. It was another malpractice case against another national firm. The defense was by a national firm, and they flew down from New York City. Everybody was in different places, except for us. My lawyer told me that she knew the person who would take the deposition. She said, “After this person says, ‘Good morning’, almost nothing they say will be accurate. And they can be nice, they can be polite.” Getting that information requires engaging counsel to be prepared to invest in you. I was in a different piece of litigation that’s been running for over a decade. When I went into the deposition and looked around, fifteen lawyers were in the room, and one of the lawyers got up and said, “Hey, Jack, not everybody’s here today.” Because I wasn’t important, I guess,  but being prepared to be in that setting starts with making sure you have something to drink if your throat gets dry, taking the breaks you need to take, and telling somebody, “I’m sorry, I didn’t understand the question. Could you try that again?” The one thing I would say about trial is, if you’re preparing for direct testimony, again, it’s like Bill Nye the Science Guy. Whatever you have to say in the most complicated case you’ve ever been in, you have to be able to get done with it in 20 minutes at the outside. It’s like a half-hour TV show without the commercials. Otherwise, you’re going to lose the fact finders. 

The last time I testified in South Florida, it was a case in an old courthouse. The air conditioning was hardly working, and before I started one or two of the jurors had been nodding off. You need to be able to hold their attention if you want to be successful, preparation counts for everything. If you know the documents you’re likely to see if you know the documents in the case, and you understand the documents, you might know them better than the person asking you the question. I remember in that case, in South Florida, they put up a big spreadsheet on the projection screen and started asking me questions about it and they had the wrong date. I said, “This is from 2 years before this case.” There was a pause and that line of questioning ended. It’s a good idea to really, really know this stuff and the only way you can do that is to prepare. 

Noah Bolmer: One of the things you keep coming back to is having sufficient time, and that’s interesting. Do you find consistency [in] that attorneys attempt to engage expert witnesses without allowing them sufficient time to prepare, go through the preliminary reading materials, develop their expert opinion, and write the report? Do you find that these tight timelines are overly compressed and should attorneys be engaging experts earlier on in the process? 

Richard Leisner: You will never hear an experienced trial lawyer say, “The heck with those expert things. They can get it all done in 15 minutes.” What does happen is I’ve been presented with unreasonable time deadlines. For me, there are two ways to respond to it and either get the time deadlines made reasonable, or you shouldn’t take the engagement. I’ve done some stuff where somebody persuaded me to work all weekend long and knock something out. I’ve done it a few times when I liked the engaging counsel, or I liked the case. I don’t think the lawyers do it deliberately. I think litigation lawyers are very, very busy. They are working against multiple deadlines and the expert, even though I don’t want to think this, the expert is not the most important deadline. Things slip [through the cracks], and other cases get involved, and the next thing you know, that second-year associate calls you on a Friday night saying, “This is Smith against Jones. I can’t tell you a thing about the case. Can you serve as an expert?” That sometimes happens, and sometimes you have to do the best you can. I think all quality potential engaging counsels will agree with me. Yes, you should prepare. Yes, you should have sufficient time, and yes, you should read the record. 

One of the other things we didn’t talk about is that Rule 26 says the expert is supposed to write the report. That means it’s supposed to be your report. In my case, I make all the typos. I’m the guy at the screen, and on the keyboard writing the report. All of the errors are mine. I’ve been edited by some good editors and I’ve had counsel say, “Could you say this?” Sometimes it’s okay, and sometimes it’s not. 

Noah Bolmer: Do you have a situation where lawyers are not necessarily trying to write the report but giving you a skeletal outline of what they’d like to see? Have you had anything like that? 

Richard Leisner: Sure, and sometimes it’s an improvement. Sometimes it’s okay. I try to be cooperative, and this is particularly the case when you’re writing a rebuttal report. I don’t think the rules require you to have the same thing in it that you would have had if it was a direct report. 

Noah Bolmer: Sure. 

Richard Leisner: I’ve had counsel say- my expert reports are single-spaced in 12-point, Times Roman type. I’ve had people say, “This will never do. You have to double-space it.” Gritting my teeth, I say, “Okay.” 

Noah Bolmer: Let’s move to some of the more general questions. You’ve been doing this for quite a long time. How has expert witnessing changed from when you got started to where you are now, and where do you see it moving in the future? Are there any trends that you’re aware of or noticing in your expert witnessing career? 

Richard Leisner: Yes. Part of it is I know a lot more about the subject than I did when I started. Here’s what I think, which is not high-quality expert logic. There were a couple of Supreme Court cases thirty or forty years ago called Daubert. Both of those cases stand for the proposition that the judge is supposed to be a gatekeeper and not let junk science in an expert report. A lot of lousy logic got admitted as expert reports before those standards and cases were originally announced. If somebody does a numbers calculation, that’s a long time. “The damages here are X.” “There’s a fault in the computation.” “There’s a fault in the assumptions.” That’s one thing, but my area of the law is called a “special knowledge” expert, where I don’t come up with a number, but I’m supposed to explain a complex area of the law. What is the standard of care in transaction law? What corporate governance is for a director, and that sort of stuff. They’re more esoteric, but there has to be logic and there has to be a principle applied to arrive at your opinion. Last year, Rule 702, the federal rule about the admissibility of expert testimony, was amended to say- this is not a great translation, to say that the proponent of the expert testimony has to carry the burden of proof that persuades the judge, as the gatekeeper, that this meets the standard of care. The comments [to the newly amended Rule 702] make clear that for decades, judges would say, “I got your Daubert right here, but we’ll just let expert Jones’s testimony in, for what it’s worth.” Now in theory, the expert Jones’s testimony has a higher bar to get over. There has to be some basis on which to support its admissibility, and if you don’t make that case, in theory, the judge should throw it out. If it’s not in the record on appeal it could be tossed out. This change went into effect around last Christmas to the end of last year. When I talked to my litigation partners about it they were much less impressed with it than I was. It’s like the French Open just concluded without Hawkeye on the lines. When the umpire says, “That’s it.” You’re done. Even if the umpire is wrong, because there’s no Hawkeye yet on expert testimony to read the lines. That’s the trend, I think. Certainly, you cannot prosecute a professional malpractice case without an expert report and an expert who testifies about the standard of care. 

Noah Bolmer: Do you think that’s for the better? Do you think that if what’s important is fair and just jurisprudence, our expert witnesses are all things considered good for the process? Is it better when there are more expert witnesses? 

Richard Leisner: Speaking facetiously on behalf of the unemployed expert witnesses, I would say “Yes.” I don’t know the answer to that. I don’t know whether we’re better off or not. I have a lot of faith in the jury system, but I think a lot of it depends on the quality of the lawyers and the judge in terms of how they all work together. You can get a lot of stuff that’s not good from any one of those three corners. I don’t have a good answer to your question. 

Noah Bolmer: Speaking of that relationship, what makes a good relationship between an engaging attorney and an expert witness? 

Richard Leisner: A good one will involve shared professional respect. Part of that is, remember, I’m a transactions lawyer and have had litigation partners who have helped me as an expert. I [became] a better expert because I talked to them and they told me what to do and not to do. I think if respect is apparent to the person on the other side of the table, that’s a start. The next thing is that the respect will be borne out by the expert and the engaging counsel, who both do an honest day’s work to their side of the equation. I think it’s a question of professional respect run out of proper behavior. 

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

Richard Leisner: The most important thing is to understand the rules and to have a reasonable basis in fact, analysis, and law for the opinions that you’re going to put forward. That requires you to invest time. It’s like doing a deal. If you slap a deal together, maybe it’ll work out. Maybe not. In the case of an expert witness, you will be better off if you do that last proofread. You will do a better job of getting ready so that you don’t spend the trip back to the courthouse thinking of all the things you wish you’d done.  

Noah Bolmer: Thank you, Mr. Leisner, for joining me today at the Round Table. 

Richard Leisner: You’re welcome. I was going to say everyone calls me Richie. 

Noah Bolmer: All right, Richie. Thank you for joining me here today at the Round Table and thank you to our listeners for joining me for another Discussion at the Round Table. Cheers. 

Richard Leisner, Senior Member, Trenam Law

Mr. Richard "Richie" Leisner, is a senior corporate and securities transactional attorney at Trenham Law and an expert witness in high-stakes business litigation and legal malpractice actions. He has been included in Tampa Magazine's Top Lawyers List and is a published author. Mr. Leisner holds a JD from the University of Pennsylvania.