In this episode…

In this episode of our podcast Discussions at the Round Table, host Michelle Loux connects with David Harkavy to discuss a range of interesting lessons that he has learned during his time as an expert witness. David details the systems he has in place to keep information fresh when working on multiple cases over extended periods of time. He also explains why it is important to create an outline of your expert report for the counsel, as long as it is not discoverable. Tune in to this episode for all of this, and much more!

Episode Transcript: 

Note: Transcript has been lightly edited for clarity. 

Host: Michelle Loux, Assistant Project Manager, Round Table Group 

Guest: David Harkavy, Director, Delta Consulting Group 

Introduction: Welcome to Discussions at the Round Table, the podcast that goes behind the scenes with influential experts. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses. 

Announcer: This episode is brought to you by Round Table Group, the experts on experts. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com. 

Michelle Loux: Hello and welcome to another great show, Discussions at the Round Table. I am your host, Michelle Loux. My guest today is David Harkavy. He is a forensic accountant that focuses on economic damage issues. He is a Director at Delta Consulting Group. Welcome and thank you David for joining us today. 

David Harkavy: Thank you for having me. 

Michelle Loux: On each show, we ask the question, “What do you wish you knew the first time that you were an expert witness?” 

David Harkavy: There is a common saying among damages experts, and that is damages flow from the legal claims at issue in a case, and that is true of course. I recommend to new, inexperienced damages experts is to have a conversation with counsel early on about the remedies you are going to consider and perform for the preparation of your expert report, and which remedies fall under which claims. I recall the day before I was supposed to testify for my second deposition, counsel came into the conference room, sat down, and said, “We have a problem.” I said, “What?” He said, “You calculated an unjust enrichment amount and we do not have an unjust enrichment claim in the case.”  I said, “OK.” And he said, “Well, we need you to say at your deposition that we will put in an unjust enrichment claim so that your unjust enrichment calculation can stay in the case.” I am about to testify in deposition, and I was anxious, and I am thinking, “We do not have a legal claim for the remedy that I put forward because it was a breach of contract case.” At the time you could not put forward an unjust enrichment calculation under a breach of contract. So, my tip for both counsel and the damages expert is to have that conversation early. If there is one claim or count or multiple claims, make sure that the damages and remedies that the expert is going to put forward in his or her expert report are tied to the legal claims of the case. 

Michelle Loux: Typically, there are initial interviews to see if both of you are the right fit. Do you do those often or are there introductions by email? How do you prefer those? 

David Harkavy: I do not have a preference one way or the other, as long as I get hired for the job, right? So, when it is a call out of the blue, it is usually the attorney asking me about my credentials, and whether I ever testified in a similar case.  Sometimes, there is a referral from someone inside Delta Consulting, the company that I work for, or from an attorney that I know, and counsel already knows me. They have read my CV and/or maybe worked with me before and they will say, “Let’s set up a video conference call and talk through some of the issues of the case” or, “David, I want to see how you would respond to these issues of damages.”  

I do not have a preference, but I prepare differently for different scenarios. For example, if it is a new lawyer relationship, certainly I will be prepared to explain my 21 plus years of experience as a litigation consultant and forensic accountant and go through some of the relevant cases. Sometimes in advance, I will ask for the complaint or other publicly available information so that I can move up the learning curve and make the conversation more efficient for both of us. 

Michelle Loux: We are entering a more digital world. We would initially have phone interviews, but that seems to be transitioning to Zoom calls. Do you find this technology useful with those initial interviews?  

David Harkavy: I think it is more useful for counsel to see the expert face to face, but now with the transition to video conference calls, it is certainly more acceptable. Counsel wants to see and understand who this expert is, and if the person is likable and able to teach a jury or judge. Oftentimes, lawyers will hire us damages experts on our ability to persuade a jury or judge or to see if this person has a likable personality that a jury will connect with. If the meeting cannot be in person because let’s say it is out of town, there is a concern due to COVID, or some other reason. Having that video call can be beneficial from the lawyer’s perspective. For the damages expert, it does not matter whether the discussion is video or our over-the-phone. In the initial phase, I am there to answer the lawyer’s questions and make sure the lawyer understands who I am and my background, et cetera, et cetera. It does not matter. 

Michelle Loux: Do attorneys prepare you for these video testimonies? You will not be able to read the room or see the jurors. I am curious if there are conversations in place about best practices. 

David Harkavy: There is a little bit of a difference, but at the end of the day, the attorneys want to make sure you are prepared, and they will spend as much time as necessary over video conferencing to make sure that you are prepared for your deposition or trial testimony. As far as the content of the time, I find it to be the same for the preparation of the testimony. I did not find that much of a difference when I testified in a deposition. I prepared with counsel located in New Jersey the day before my deposition testimony, and I am here in the Chicago area, so neither one of us had to travel. That saved us at least a day of travel time and it was more convenient. I feel like we were able to get through the content of my opinions and what to expect for the deposition the next day, as well as if we were meeting in person. In that sense, I do not feel like there was much of a difference. Since we did not have to travel, I think it benefited all of us, including the client not having to pay for travel cost and time. I testified the next day via video conference, and I did not have to travel. I would have had to travel to the East Coast for that deposition. The party saved money and I found it to be as viable as if I was to testify in a deposition in person. It will be interesting in the next 5 to 10 years if that is going to be a common occurrence, just because it does save money and time. I agree this will become more of a common occurrence in cases where money or cost savings is an issue.  When there is a lot of money at stake and costs are not an issue, I think there will be travel to the depositions and the depositions will more likely be in person. 

Michelle Loux: Yes, you cannot replace human interaction, right? Another question I have is how do you organize your cases? Oftentimes, these cases extend many months into years. What systems do you have in place to keep that information fresh? For instance, if you are working on, let’s say 20 cases, and you have one that pops up that you have not touched on in over six months, how do you jump right back in? 

David Harkavy: That is a good question and often happens with litigation cases. The case often hibernates after a damages expert report is submitted and there is very little if anything going on for the expert after expert discovery ends. Sometimes, I have notes that will not be discoverable because, in federal court, my notes and drafts are not discoverable under expert discovery rules. I will keep track of those notes, retain those notes that I have taken, and will focus on some of the points that are not disclosed in my expert report. There might be certain areas where my team and I performed work that did not go into my expert report. We still want to retain this information because if the matter goes to trial, the information and work product will help prepare us for trial. We keep that information in a separate folder on our network so that we know that work product and information are not the main portion of my expert report. Sometimes my team and I will organize electronic documents referenced in my report organized in a separate folder. When we get closer to trial, I will have these electronic files organized in a way where I can quickly go through them. If my report has let’s say, 100 footnotes and 50 of those 100 footnotes are cited to discovery, I will have footnotes 1 to 100 readily accessible to me so I can click on the folder with this information and find those pieces of evidence. That is another excellent way to keep track of information that gets stale in your mind and before trial, quickly pick it up, and get back up to speed. 

Michelle Loux: As an expert witness, you have to be a super organizer . . . and that is a lot of footnotes. 

David Harkavy: Some expert reports have hundreds of footnotes. I have been doing this for so many years that I know best practices when writing an expert report. I am relying on a source document that I am going to start putting those documents in a folder or subfolders so that I can easily get to them later on. Then, let’s say I submit an expert report the following week, I might have one of my staff members go through the expert part and make sure that all of my footnote sources have been uploaded to this folder. So, if in six months or a year and a half we get to trial, we have all of the sources that I relied upon for my expert report readily available. 

Michelle Loux: Sometimes attorneys will suggest new language in expert reports and there is some back and forth, but have you ever had an attorney, not like the tone of your expert reports? Have they asked to see the sample writing ahead of time?  

David Harkavy: Yes, that is a good question. I often create an outline for counsel as I begin to draft my expert report. As long as that is not discoverable so counsel will know the flow of topics for my expert report. On a timely basis, I will share a draft of my expert report so there are no surprises leading up to the expert report’s due date. There are always going to be last-minute changes to an expert report. The days leading up to the due date, First Chair Counsel will read the expert report for the first time and provide feedback. Oftentimes there is sort of a sort of pushback between Counsel and myself as to the language in my report. 

Often, prospective counsel will ask me for a redacted version of an expert report.  I have those redacted reports available so that if an attorney calls me up, asks me questions, and says, “David, I like your experience and credentials. Do you have a lost profits report that you can share with me?” For privileged reasons, I cannot provide one of my old expert reports because they are destroyed at the end of a case as a result of a protective order in place. I have redacted some of my old reports to remove confidential information and party names, etc. so that if a prospective attorney wants to see my writing style, I have one of my reports for him or her. 

Michelle Loux: Yes, all very smart, especially if you are asked that question on the stand. We are wrapping up our time. Do you have any last tips for our listeners or suggestions about being an expert witness?  

David Harkavy: I could list many. I would say one item is that when hiring an expert, it is a “two-way street” based on trust. Certainly, the lawyers trust the expert to perform the work at their direction and with objectivity and integrity. The expert trusts the lawyers to provide the expert with sufficient relevant information for the expert to perform a reliable and supportable damages calculation and protect the expert when opposing counsel goes after the expert. For me, I have many more years left. I do not want to be excluded for any reason. Thankfully I have not been excluded for any reason and I want that to remain the case. When I have an initial call with counsel, I explain that they are hiring me because you trust me, and I am accepting this opportunity to work with you because I trust you. 

Michelle Loux: It seems like expert witnesses are routinely interviewing for new jobs. 

David Harkavy: Well, that is true. We do get calls and we do go through those interviews with counsel, and we explain our work strategy or the way we perform our work, so counsel understands our approach. The last thing you want to do is to get into a situation where counsel has certain expectations that you cannot meet. I have been involved in those situations where the attorneys try to, early in the case say, “David, we are not thinking this. We are thinking over here.” I am like, “Then you need to provide the evidence to support that.” One of my cases where I testified at trial on damages fell apart quickly. I will explain. The attorneys wanted me to put forward a very large lost profits opinion. I explained and asked them to tell me a little bit about the facts that support causation, and they explained to me, “Well, we have got a fact witness for the plaintiff. He is going to testify on causation factors.” I said, “OK, tell me a little bit about that.” The lawyers explained it to me and asked me to assume causation. When we get to trial, and the day before I was scheduled to testify on lost profits, the plaintiff’s fact witness on causation melted down at trial and was not adequately able to support causation. Meaning that it was not the defendant’s actions that caused the lost profits. It was other factors. So, even before I testified on lost profits, counsel withdrew my loss profits opinions, and I testified only on a few small other components of my damages opinions. I can tell you the client and the judge were very upset with our team because they were expecting a very large lost profits damage opinion to be at trial and it was not there because we did not have sufficient evidence on causation. That was a tough pill to swallow for all of us because I felt we were all in together and we just did not meet the criteria. Therefore, my lost profits opinions were not presented at trial. 

Michelle Loux: It is hard, especially when you put so much time into it. 

David Harkavy: I would say 80 to 90% of my time in that case related to the lost profit’s calculation. 

Michelle Loux: Well, David, I appreciate your time and it is always a pleasure to talk to you. Thank you so much and enjoy the rest of your day. 

David Harkavy: Thank you Michelle. 

David Harkavy, Director, Delta Consulting Group

David Harkavy is a Director at Delta Consulting Group in Chicago, IL. As a consultant and expert, he specializes in the causation and determination of economic damages and the valuation and licensing of intellectual property. David has consulted litigation clients involved in patent, trademark, trade secret and copyright infringement matters, as well as antitrust and breach of contract issues.