In this episode . . .

Once you have established yourself as a respected expert witness in your field, your name carries a good deal of weight. As your name alone might drive a case toward a settlement, our guest, Ms. Kathryn Arnold, advises building a significant, non-refundable retainer into your engagement contracts. You have spent significant time and money to become—and remain—at the top of your field, so make sure you are compensated.

Check out the full episode for our discussion on gender disparity in actions, expert teams, and the importance of independent research.

Episode Transcript

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Kathryn Arnold, Entertainment Consultant and Expert Witness

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome our guest, Ms. Kathryn Arnold, to the show. Ms. Arnold is a film industry veteran with a full-service consulting and expert witness practice. Her specialties range from economic damage to distribution and more she’s consulted or been engaged as an expert witness in over eighty-five cases. Ms. Arnold, thank you for joining me here today at the Round Table.

Kathryn Arnold: It’s my pleasure, Noah. Thank you for having me.

Noah Bolmer: Of course. Let’s jump into it. You have over 20 years of experience in film production. How did you get involved in expert witnessing?

Kathryn Arnold: In the beginning I thought it was a fluke. I was still working as a consultant for a production company doing international sales and finance. I received an e-mail from the Round Table Group asking for help with a case that was very much in my wheelhouse, and to be honest, I was a bit surprised. I knew that doctors, real estate, and financial people were experts, but I didn’t realize someone in my area would be of service. I was excited. I knew of the industry, so it wasn’t a total surprise. You know I got the first job because the lawyer wanted to meet me in person because I had never testified, and I got my first gig. It was simple. It never went to trial, but they were satisfied, and they referred me to another case. Those lawyers referred me to another case and then Round Table came back to me with a case where the attorneys were Gibson, Dunn, and Crutcher. As you probably know, they are one of the largest law firms in the United States, and it was a $90 million case, and their clients flew down to meet me. It was a series of hospitals and doctors, and I realized it wasn’t a fluke, that it was something where I could be of service. I got some books on expert witnessing, did some reading, and found that it was an entire industry of forensic experts, and I took it from there.

Noah Bolmer: How long ago was this when you first got started?

Kathryn Arnold: I think I got the first case sometime around 2008, but it got more serious- I was involved with three sets of attorneys on that case, it was around 2010. And I remember that because a close friend of mine said, “We better get you a website.” He set me up with a great website and then I started doing research. When I realized that it was a business, I said, “How am I going to get a name for myself? How are people going to start understanding that I exist?” I was lucky and got the “entertainment expert” as a website. That was good. I started writing articles, based on my experience of film finance, film production, and the myths and misnomers of the entertainment business. I kept writing those articles and subscribed to Round Table Group and other listing services. Other cases came in. And I think what really put me on the map, I don’t know if you remember the big Sony hack in 2010-2011- what was the name of the movie? I’m totally blanking, but Sony was hacked, and the movie release was delayed. I was asked by fifteen different news outlets in a 24-to-48-hour news cycle to be a consultant on everybody from Bloomberg to MSNBC to The Hill. I think having that media and being able to put that up on the website was super helpful. It started there and the work has flowed consistently ever since then.

Noah Bolmer: When you said that having a nice website was one of your first things you did, have you found that website has driven a significant amount of business to you? In my mind, today people are tending to use social media, more than the tried-and-true website. Tell me a little bit about your experience with the web.

Kathryn Arnold: With lawyers and legal issues, you want to stay away from much on social media, which is Facebook, Instagram, Snapchat and that ilk. I have those four on another business I have. But for social media with respect to legal, I have LinkedIn of course, which is a very solid and reliable resource. But having a website with the name, “The Entertainment Expert”, gives me, certainly, SEO recognition. And I think that a website also allows you to put up articles and if you’ve done media interviews or you can cross-link with other websites, I think that has been super helpful. And of course, working with Round Table Group and other agencies and listing services that have very well-known and respected websites, is very helpful, because lawyers that don’t know where to turn. You know, the paralegal is the one tasked with finding the expert. The lawyers will probably ask their colleagues and their friends, but the paralegal or the junior lawyer is the one usually tasked with finding them. And of course, they’re going to the search engines and the agencies, but also, they’re going to do “entertainment expert” and click “enter”. And so having that website with articles, and information and case listings and media stuff has been absolutely essential for me. Having “The Entertainment Expert” and doing many media interviews and written articles certainly has been helpful.

Noah Bolmer: A good URL is crucial and they’re becoming rarer in 2024. I don’t know if you would have been so lucky to get “The Entertainment Expert” these days.

Kathryn Arnold: Like I said, I got it in 2009 or 2010 and I’ve kept it ever since. I have entertainment expert.net and dot something else, but the only one I use is.com. The listing service that is extremely helpful as is Round Table. I’ve gotten some fantastic cases, and not to toot your horn, but they are a great organization and helpful.

Noah Bolmer: You mentioned you’ve published a few times. Tell me a little bit about that. How did you get started writing as an expert in your industry and is that something that you recommend other experts do to become more recognized? Does that help drive business?

Kathryn Arnold: I think anytime you are searchable for any topic is important. I also think when a lawyer or someone searching for an expert can go onto your website and read articles you have written that will give them an understanding of how you write, and expert reports are a huge part of what we do. It was just instinctual, really. I didn’t have a guidebook to follow. And yes, I did read some books on marketing for expert witnesses, but it became very clear- so I just wrote articles. I kept them at a couple of pages at most. Then I put them on LinkedIn, I put them out on the listing services, and I tweeted them out- or tweet, wait it is X- and I don’t know what you say anymore. I put them out, and the more your name is out there, the more the search agents can find your name with your topic of expertise is obviously helpful. It also helps that the lawyer can see your subject matter understanding as well as your ability to articulate it. I’m going to go on a bit of a tangent, but I think this will be helpful. There are a couple of things that the lawyer will look at. One, do you have a solid understanding and an anchor for an expert testimony thesis? Two, are you able to articulate it in a way that a layperson can understand? And three, when it comes to testifying in court with the jury, you want to be able to speak in a manner that is understandable for someone who has no idea about what you’re talking about and not be so dry and boring that they fall asleep.

Noah Bolmer: As a film industry veteran, I’m sure that you have a bit of a leg up as an expert witness in communicating. Is that right? Has your experience helped you?

Kathryn Arnold: Sure. I have a background in creative writing, but this type of writing is very different. But I do really enjoy the process of educating people. As an expert, your job is not to be the “know-at-all.” It’s not to be the person that people are afraid of. “Oh, he or she just knows everything.” You cannot be disqualified or argued with. It’s your first job to educate your attorneys if it’s an area they’re not familiar with, and in my field, most attorneys aren’t. Secondly, your sole job is to educate the jury and have them understand what your client and the opposing client are dealing with. Coming off as a “know-it-all” doesn’t serve anybody very well. I learned early on that speaking to the jury respectfully, trying to share my knowledge, and not trying to say that I’m on a different level than you are important. I get to talk about more fun stuff than say, accounting practices, but I think that’s something that a lot of experts, especially coming up, would be- do them a service, if they knew that was their job. And not to come across as, “I know everything, and so you can’t argue with me.” Because that’s not the case.

Noah Bolmer: These days a lot of cases have been moving towards settlement. Has that affected your job at all? What’s the difference between an engagement that goes to settlement and an engagement that leads to a jury trial?

Kathryn Arnold: There isn’t any difference in the early stages. You can be hired as a consultant, which is pre-trial, and then once they designate you as the expert, that’s a different designation, but your job is still the same. Your first goal is to tell the attorney whether you believe in their case. If you do not believe in the case, do not take it because you will get nailed in the deposition. But that’s a whole other conversation. Let me get back to the point. First, you want to educate the attorney and then you write the report. That’s when you’re designated. The work is the same. You review the material and assess whether your opinion is appropriate for the plaintiff or defense, depending on who you’re working with. The only difference? Oftentimes-sometimes, my name alone has settled the case because I have a lot of cases behind me, so that’s fair, right? But sometimes just doing the research and giving the attorney the right ammunition so it’ll settle when they return to the conferences. Then you can write the report, and the report is hard to refute, so that’s when you settle. Or everybody gets tired. But the work is still the same once it goes to trial. I’ve had major cases settled the night before. I’ve been ready to fly to Atlanta, and get a call at 11:00 saying, “We settled.” You never know when it’s going to settle. The work is the same, but your preparation and your actual job is more verbal rather than written. It’s on record rather than being just discussions with the attorney.

Noah Bolmer: What are the business considerations inherent in an engagement that may or may not move to settlement? Is it difficult if you don’t know how many hours the case will be because it might be some huge thing that goes on for months, or it might get settled tomorrow? How do you prepare for the business eventualities of such a dynamic sort of job?

Kathryn Arnold: That’s a great question. Here’s a good learning lesson. I’d already done about 15 or 20 cases, and I was speaking with an attorney about my perspective on the case and he said, “We’re going to go and designate you.” I said, “Great.” And I didn’t have a fee schedule or a contract yet. He said, “Okay, we’re designated tomorrow and we’ll move forward.” I said, “Great.” Two or three weeks later, I hadn’t heard from him. I kept calling and calling and finally got to someone who said, “The case was settled.” I said, “Okay.” I realized that, as I said, they used my name as a credible expert, and the case was settled. Immediately, I realized that the appropriate deal agreement, or what we call a fee schedule was necessary. I worked with- I’m trying to remember where I got the platform. I had been involved in some expert organizations and someone gave me a blueprint for their fee schedule. I made sure that prior to designation and or prior to allowing anybody to know I was on the case, the fee schedule and a 10-hour retainer had to be signed and sent to me before they were allowed to use my name. And ever since I’ve done that, that has never happened to me again. They even ask if it is nonrefundable, and in my case, it is for that very reason. Because you’re not only getting paid a solid rate for the work that you do, but you’re paid for the years that you put into your trade to earn you the right to call yourself an expert. By virtue of the fact that I have 20 years, they’re not paying just for the ten hours, twenty hours, one hundred hours of work that I do, they’re paying for the right to have me back them up. Therefore, it’s a 10-hour retainer, just like a lawyer does. The 10-hour retainer, and in certain instances, I’ve given half of it back, or made arrangements if there was a legitimate reason. Otherwise, the fee schedule, the retainer, and having that signed before they designate you, is critical.

Noah Bolmer: That’s great advice. Talk a little bit about those phone calls. What are the sorts of things you should be talking about with a potentially engaging attorney? What are the important things to make sure that you go over to ensure that you are the right person for the job? You said earlier, one of the things is that you believe in the case. What else?

Kathryn Arnold: That is critical because when you’re in a deposition and in court, the opposing counsel’s one goal is to discredit you both as an expert and as a human being. I’ve had both attempts done to me. When you’re taking on the case, it’s very important to understand the case itself, your position on the case, and whether your position you can back up at every twist and turn is supporting their position. For instance, I’ve had lawyers come to me and talk and I’ll say, “Here’s the deal: your defendant is right.” Or “You’re opposing counsel is right. And this is why.” Then he said, “Well, don’t you think this? Or what about that?” I said, “Unfortunately, no. These are the people who are responsible, and this is where it went awry. This is how I would testify.” Rather than take the case, I’d say, “If you would like me to prep you on how to be prepared for the opposing counsel because if I were on the other side, this is what I would say to you. I’m happy to do that.” It’s important to be 100% sure of your position and do not get too enthusiastic about the facts of your position or get too extraneous. You want to stay within the confines of what the conversation is. So, to answer your question specifically, you want to make sure they understand the client’s perspective, what they’re going for, and if you 100% believe you can support it. If not, you can say, “I’ll do this and this, but I can’t go there.” Or “This is in my wheelhouse, but I need to bring in a co-expert on this.” Because you will get hit hard in deposition, even more than trial, if you are off base and cannot support your position it would be uncomfortable position if you got disqualified because you didn’t have the goods to serve the client.

Noah Bolmer: That’s interesting. You mentioned bringing in other experts. Have you been on many cases where you’re part of a trial team where there are multiple experts? And if so, to what extent do you interact with them or collaborate with them?

Kathryn Arnold: Sure. I have someone in the music industry, someone in public speaking, and someone in library valuations. I also like my economics team. We [often] refer to each other because we have respect as well easy working relationship. We’ve probably been on five or six cases together.

Noah Bolmer: Should experts collaborate outside of cases to form these sorts of teams, network, and make these relationships? Is that an avenue for getting more?

Kathryn Arnold: There are expert witness associations, and I have been involved in some of them. I’ve done panels for them, and so forth. However, it didn’t serve me as a great networking source because my niche is specific. I’ve attended legal conferences and expert legal networking events, and again, entertainment is just so unique, and I don’t get hired by entertainment lawyers. I get hired by litigators who don’t know much about entertainment. Only a few times have they had any experience in entertainment. It’s a medical lawyer. It’s a real estate lawyer. It’s a business lawyer. I’ve worked for Merrill Lynch and the Oprah Winfrey network. It runs the gamut. I just don’t fall into that, “Oh, well I can put my name out to a thousand lawyers and get a job.” They don’t know when an entertainment case is happening, but yes, especially if you’re starting out, I highly recommend several of-I think the forensic expert witnesses- I think it’s called Forensic Expert Witnesses Association is an excellent resource. They have a lot of classes and panels that are helpful, especially starting out. So, they’re helpful.

Noah Bolmer: Let’s talk a little about how the industry has changed. You’ve been doing this for quite a while. Have you noticed any significant changes in any area of expert witnessing from when you first got started, either in your preparation techniques or maybe something has changed because you’re on a Zoom call rather than in-person, logistics, or finding work? [Does] anything like that come to mind?

Kathryn Arnold: I don’t think much has changed except for COVID brought in the Zoom team meeting. We were quiet for about six months because nothing happened in the courts. Then as they started realizing they were going to be backlogged, Zoom came in, and I think I’ve been in both Zoom depositions, which are becoming much more common because it’s a lot less expensive than flying everybody in. The deposition is fine. You don’t have the advantage of having your lawyer there right next to you. It’s a bit awkward, and you have to be very careful what information you have around you, but I would say that’s the only real difference. I haven’t liked the Zoom trials I have been in. As we mentioned before, being in the room with the judge, whether it’s a bench trial or the jury is critical. I’ve been on Zoom trials in the UK and in Australia, so that was easier. Depositions I think are, more often than not, if you’re not in the city, the way to go. Then again, I had a whole team of lawyers fly out to me because they didn’t want me to go there. Everybody’s different, but I think the only real change is technology for communication.

Noah Bolmer: Absolutely. Do you have any stories about cases that have, in one way or another, informed the way that you go about being an expert witness? An aspect of expert witnessing, or even a bad situation where your eyes were opened to some of the pitfalls that can happen in expert witnessing.

Kathryn Arnold: I’ll give you a couple of examples. One from personal demeanor and how you need to maintain your sense of self-worth inside of a deposition. As I mentioned earlier, certain lawyers go about their business. They understand that they’re just trying to get information from you. There are other lawyers who, usually in cases where they don’t have as many goods. In weaker cases, they will go for the discredit and disqualifying method, and they don’t try to discredit you necessarily on your expert opinion, they actually try to discredit you as a human, so you need to be aware that it is their game and not yours. You have to have a solid shell, almost like a warrior force field around you, and just know that it’s not personal. It is their tactic because I have been in situations that have been so brutal that I was shell-shocked for days afterward because they go after you so intensely. I’ve had that, so I think it’s important to understand that it’s all a game of war and it’s not personal. You have to have your force field and be prepared for that. You were going to ask?

Noah Bolmer: Yes. Do you feel that attorneys do enough to prepare you for those sorts of eventualities, especially when you’re newer?

Kathryn Arnold: They try their best to make sure that you know your stuff, and they ask questions in various ways. They also try to know enough about the background, what you testified to before, and any of your writings that are in the public domain because lawyers will dig. If you’ve been on a case and you’ve had an opinion published, or if you’ve written an article, they will go back and take it out of context. Lawyers are good about that. I don’t think anybody expects someone to go after you personally. I have had, and I’m not saying that this is always the case, but, being a woman, I have been treated differently than my male counterparts. It becomes very clear that’s what the lawyer is doing. And to that point, I find the lawyer- now that I’ve been through it many times, if a lawyer is being disrespectful or demeaning in any way, I will stop the deposition or stop the arbitration. As an expert, you have to remember that you have the right to be treated with respect and have questions that are within the scope of your engagement and your opinion. If they go too far out, you can either say, “Excuse me, I think it’s time to take a restroom break or I need a glass of water.” Or, “Excuse me, with all due respect, that was out of line and I’d like to get back to the appropriate questioning.” I’ve even gotten up from arbitration and walked out of the room, and I said to your honor, “I am so sorry, but this is going in the wrong direction, and I’m not comfortable with this line of questioning. It has nothing to do with the case, so I’m going to ask you to discuss with the lawyer what’s more appropriate.” Then I walked out and the judge nailed them. I can’t say that my male counterparts have or have not had that experience, but I think that for either a man or a woman, some lawyers play fair and some lawyers don’t. It’s important to hold your demeanor, not get emotional, stick with the facts of the case, and allow everyone to stay within their lane. Otherwise, they’ll try to rip you apart and it can get very uncomfortable.

Noah Bolmer: Absolutely. This is eye-opening and sage advice. I want to talk about venue. You’ve worked for both plaintiffs and defendants. Do you find that there’s any significant difference between engagements for plaintiffs and defendants and, for that matter, in state versus federal or other types of venues?

Kathryn Arnold: No, I think the burden of proof, as we know is on the plaintiff. You have to have supporting documentation. More importantly, does your expertise support the position of the plaintiff or the defense? That’s why I said to you earlier, I told a plaintiff’s council, “If you want me to prepare you for the defense, I’m happy to do that, but I can’t be your expert.” No, I think it’s important to be able to take both cases if you can. As an expert, you’re not going out there because if as just a plaintiff or just a defense, they’re going to bring that up at trial, making it look a little strange. You asked me if I had any other interesting stories. I was on a large $200 million class action with three plaintiffs. I was on the defense for a huge corporation. The plaintiff was an actor and he had major names on his team. The expert was probably one of the biggest people in the industry. He had major actors. The expert was hired like I was to form an opinion, but the major names, we’re talking household names, who were there to be character witnesses. At first, I was a little intimidated going up against- not the actors because that didn’t matter to me, but the major player on the other side was the expert. I did my due diligence. I did my homework. The attorneys prepped me for four days just for my deposition. They grilled me as to “If so and so says this, who are you to say that? He’s a major player . . .” and all that. I just relied on my knowledge, but more importantly, my preparation. I was so well prepared and I had done my homework so well that when they went to trial, although my opposing expert was, as I said, one of the biggest names on the business side of the industry, he was discredited as a witness because I had done the homework and he had not. Mind you he was a big name, extremely accomplished, and very well respected, but he didn’t do the homework. He just spits out three pages, most of which were, “I am who I am, and this is what I say” whereas my report was twenty-five pages long and they disqualified him. The lawyer came back to me and said, “I want to thank you so much because your work, your preparation, and your education of our clients over the course of the last year and a half took us to a win the first time that we’ve ever represented this client in the past.” So, I think that don’t necessarily get intimidated by who’s on the other side. Be certain of your case and do the preparation work and you will be fine.

Noah Bolmer: When you talk about doing preparation work, are there any specific preparation techniques that you use or like to make sure you’re familiar with your report in all of the materials that the attorney has given you?

Kathryn Arnold: You need to do your own independent research and your own independent documentation. If you use what the attorneys give you, you tend to get into trouble. You need to do your own independent research. You need to have your own supporting facts and need to know the case inside and out. And it’s really about – our industry has no science and methodology for the entertainment business. Many experts, accountants, economists, and vocational experts have to follow scientific methodologies. Again, I’m in a different class, but what I did was my homework and knew this person’s career inside and out, backwards, and forwards. Then, I did a detailed report as to what that person would have had to achieve to make the claim that he did. It’s just really knowing your turf and having the documentation and experience to back it up.

Noah Bolmer: Excellent. Before we wrap up, do you have any last advice for expert witnesses, particularly newer experts?

Kathryn Arnold: As I said earlier, don’t overstate your experience. Don’t overstep your bounds. There’s a saying, “Don’t get over the tips of your skis”, because if you try to say things that you kind of about but are a little outside your wheelhouse, you’re going to get nailed for it. It’s better to under promise and over-deliver because your report will be parsed word for word by a series of paralegals and attorneys, and their only job is to find fault with your report and find fault with your testimony. Number one, don’t get out in front of yourself. Number two, be super solid, and number three, be calm. Stay calm, don’t get emotional and follow the lawyer’s lead on how he or she wants you to prepare and handle yourself in the deposition. But I think, more importantly under-promise and over-deliver. I think that’s what the best case is.

Noah Bolmer: Sage advice, Ms. Arnold, thank you for joining me today.

Kathryn Arnold: Thank you, Noah. I look forward to hearing the podcast and its completion.

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

Kathryn Arnold, Entertainment Consultant and Expert Witness

Kathryn Arnold is a film production veteran and expert witness with a full-service consulting practice. With specialties ranging from economic damage to distribution, she has worked on over eighty-five cases and has over 20 years of expertise.