In the second part of this special guest episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small interviews Ian Ratner, CEO of GlassRatner and B. Riley Advisory Services. Together, they delve into the critical topic of expert witness preparation, emphasizing the importance of thorough preparation and knowing the boundaries of the expert's role. Mr. Ratner shares his extensive experience and stresses that even seasoned experts benefit from diligent preparation that helps them understand the case inside out. Mr. Small highlights three pillars of expert testimony — expertise, passion and clarity — and stresses that it's critical to translate technical jargon into "plain old English" that juries can understand. Mr. Ratner also offers insights into common mistakes lawyers make when preparing experts, the trend of overly aggressive depositions and the often lonely nature of the expert witness role.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Podcast Transcript
Dan Small: Welcome back to The Trial Lawyer's Handbook podcast and welcome back for our second episode to Ian Ratner, the amazing expert witness and CEO of Glass Ratner and B. Riley Advisory Services. Ian, thank you so much for coming back and sharing your extraordinary wisdom with us.
Ian Ratner: Thank you. No one in my family says I have extraordinary wisdom, but I appreciate it.
Dan Small: Well there you go. Now you have it on the record. We talked last time about some of the things that come up with experts, but I want to talk about the idea of preparing — or the challenge for a lawyer in preparing — an expert. I gave a talk some years ago to a conference of expert witnesses, and in the course of that, I said, "Look, please don't tell me, if I hire you as an expert, don't me tell me that, 'Oh, I've been an expert a hundred times, I don't need to prepare.' Because first of all, I don't know whether that means that you're a really good witness or you've just developed some really bad habits. And second, this is my case, I know the case, I know what we need and I need to be able to work with you." So, when I talk about this stuff and teach it, I use the phrase "just do it" to talk about preparation and the importance of preparation. But what have you seen?
Ian Ratner: Yeah. I mean, you could never overprepare. I know that people like working with me because I'm very prepared. I never go into a deposition without knowing as much as I can and being as familiar with everything, but I think you're 100 percent on it. You have to prepare. And I'll tell you, I still get very nervous — again, I've testified 300 times or something like that — but I still get extremely nervous and I think that's good because, it may not be good for my digestive system, but it is good to get nervous and it shows that you want to know everything that you can about your report. The challenge in preparation is that more than likely the lawyer taking your evidence, doing your deposition or crossing you, he actually likely knows more about the case than you. So again, you might know your calculation better than him. You know, that's why you have to stay in your lane, right? The minute you try to get out of your lane you're going to get crushed because — especially large cases that have been going on for years — you have a case where there might be different experts, different issues, different witnesses.
As an expert forensic accountant or business valuation expert or solvency expert, I do a lot of solvency work, you're really looking at a very small piece of the puzzle. The minute you get beyond that piece of the puzzle, you can get blown up. And there are lawyers that will push you to get involved in other, you know, "Oh, I need you to shore up." And I've had at least one, what I consider to be, terrible deposition, and it was thankfully many years ago, but the lawyer was pushing me to get involved in all kinds of other areas. I was trying to comply, I was trying to prep on those areas, I was so, my mind was so not clear at the deposition. So I think you got to prep and you also have to make sure that you know where is your line. What are you in charge of when you sit down there as the expert?
Dan Small: When I teach this, I talk about there being three pillars to expert testimony: expertise, passion and clarity. We can't prepare lawyers as lawyers. We can't prepare an expert for expertise, that comes with their background. We can help with the passion part by explaining why the case is important, why the issues are important. The piece that so often is a challenge is clarity because the dichotomy there is so often the more expertise someone has, the less they express it in plain old English. I have a case now where we have a world-renowned physicist as one of our experts. Wonderful, wonderful guy and has done a great job, but he's used to talking to other world-renowned physicists. And so in preparation, we've had to talk about how do we translate that to a jury not of his peers, but of ordinary peers. What are your thoughts on that?
Ian Ratner: Yeah, I mean, I think that's really important and that comes with experience also. For example, last time we were together, Dan, I mentioned discount rates or something like that. There's all kind of technical aspects of what we do, but you have to understand what drives that data. And I recall a deposition that I was in where it was my opinion that the expert was using a really, really low discount rate. It's an inverse relationship, this was a valuation question, the lower the discount rate, it was driving up the value. And we were having a hard time cracking him and we took a break, and we basically went back in and the lawyer asked him a very common sense question like, "Oh, would you invest in that business to earn that rate of return?" And he said, "Oh, I would never do that." And that kind of blew the whole thing wide open because he wasn't able to relate the technical aspect of the discount rate to what it's really all about. It's all about a suitable rate of returns for the risk of the business or for the risk of the future cash flows, right?
So, the point is, the only way you could really do that is by really understanding what's happening. And that's what I like to do when I'm preparing. It's like, what's really happening here? You know, again, there's so many complexities to forecasting and rates of return — you got to go like 80,000 foot — like, hold on a second, you're projecting 20 percent margins in the future, this company never made more than 6 percent margin. You know, you have all this sophistication, but the answer is wrong. So I think it is good to kind of like smell test everything and like, does this make sense? How are we going to explain this in common English? And that's really the thing that a good expert can do. A good expert can zoom up, so to speak, and explain it in a common way. I think that's the challenge actually for working with many experts.
Dan Small: Any thoughts on what mistakes the lawyers make in preparing their experts?
Ian Ratner: You have to know the weaknesses of your case. And I think that the lawyers that do a great job preparing or preparing me, it's like, I know what I did, right? I mean, I'm going to know every spreadsheet, I'm going to know where the data came from, I'm going to know why I use that data, but let's focus on the weaknesses of our case. You have to switch from being an advocate to helping the expert understand all the weaknesses of what he did and all the weaknesses of the case and all the high-risk assumptions that he's made. And that can be difficult, but, in other words, I want to hate my case. In other words, that's the best way to prepare, right, is to understand all the soft underbelly, so to speak, of the case. Does that make sense or is that weird?
Dan Small: No, absolutely. You know, I wrote the ABA's manual on preparing witnesses, and when talking about preparing expert witnesses, I was reminded years ago, I don't know what happened, I think they went out of business, but there was a clothing store called Syms, named after the family, Sy Syms, and Sy Syms did the ads for it. And their motto was "An educated consumer is our best customer." And I love that because I think that's really the essence of the relationship between the lawyer and the expert witness. An educated consumer is our best customer, both parties, I think, have to be. The lawyer has to be educated in the area of expertise, and the expert has to educated in the case. And it really is an important back-and-forth dialogue, and I don't know if you see it that way or —
Ian Ratner: I'll tell you that I do, and that's why we're blessed. Our practice is 24 years old, and we've worked with many attorneys more than one time. They know us, they know our style, and it's very comforting, so a great lawyer is the best customer. I'll tell you one trend I've seen in depositions, which is really difficult, and I don't know where this is coming from: the idea that the deposition is going to be a fight. Like, just ask the questions. You know how many times, Dan, I've said in a deposition, and I could do this, I've been doing it, it's like, "Hey, you ask me the questions, I'll answer them." Just ask the questions and you're going to get all the answers you need.
The expert has to tell you how he came to his opinion, what documents he relied on, why he relied on those documents, but you're not going to beat the guy up into changing his opinion on the fly. It's just not going to happen. The expert is not going to do it, and I find that if I have a weakness in the case, I've said many times, "Well, that's a good thought. I hadn't thought of that." "I've got to think through that." "I didn't consider that piece of evidence because I wasn't aware of it." "Would that change your opinion? I don't know." Like, you just have to be completely honest about what you're doing, but you don't have to have a war with the expert. And that's what I've seen. I've seen things get so aggressive in these depositions. I wonder, is the deposition god telling all the lawyers that you need to be more aggressive, or is it just a trend?
Dan Small: I think it's just a trend, I think it's just people trying to show each other up. And I agree with you, I think one of the things we work hard to prepare a witness for is just that, to tell people to be relentlessly polite and kill them with kindness. And juries, it's fashionable to bash juries — I don't want to get distracted too much on it — but I love juries. And one of the reasons I love them is that they have very good, what I call, jerk radar. They have good radar to discover jerks, and they don't like them. And so there is a limit to how effective that kind of aggressiveness is. I tell people aggressiveness has to be earned. You have to earn the right to be that aggressive by showing that the witness is a liar or a fool or a con-man or whatever it is, but if you don't earn that right I think it's too much. I wanted to move on quickly because this is so much fun, we could, we could tell great stories for a long time, but you had a wonderful thought in one of our back and forths before this. You said something about being an expert is a lonely business. I thought that was just marvelous. What did you mean by that?
Ian Ratner: Especially as you move on in your career, you're supervising people, you have teams of people, you're working on collaboration and large projects — being an expert is very lonely. When you're in a deposition, it's you. You can't ask, "Oh, I need to ask Ross Hickman where that document is." Of course you could say, "Look, I had a team helping me, I don't know this answer." There's a way to do all that in a professional way. But number one, when you're in the deposition, you're all by your lonely [self]. Number two, when you're in the end of a case prepping for the trial and all that, the lawyers really don't care about all the team. The leader of the team is there.
In November of 2023, I had a large trial out in California and we were back and forth, back and forth, and you're getting on the plane, you're by yourself, you're in the hotel by yourself, you don't have your team, you have all the documents. We're at a later part of our career, Dan. I mean, I know that it's hard sometimes for us to face it. We're in a later part of our career, and here we are. You're in hotel, it's late at night, you're by yourself, with your documents sitting there — I mean, that's lonely. The expert business is kind of a lonely business. You know, it's not about chumming it up and big deal closing. Think about it: If you're an investment banker, you finish a big deal, you have a big dinner, everybody's getting a tombstone. You're an expert and you're in this big trial, you're in the hotel room by yourself, eating granola bars and like the next day the trial's over. It's kind of a lonely business. That's just my impression of the way I've experienced it over the years.
Dan Small: Well, we'll try to keep you company next time. Ian Ratner, CEO at Glass Ratner/B. Riley Advisory Services and expert extraordinaire. I can't thank you enough for spending time with us here on The Trial Lawyer's Handbook podcast. Thank you so much for your time.
Ian Ratner: Thank you. Have a great day.
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