In this episode…

You can’t win a case in deposition, but you can lose it, according to Mr. Mark Gottlieb. He recommends answering only precisely what is asked without additional commentary. When there are questions that can be answered with a simple “yes” or “no,” it is fine to do so without clarifying remarks, until the deposing attorney asks.

Check out the entire episode for our discussion on transferring roles from consultant to expert witness, physical presence in the telepresence age, and the importance of mentoring.

Note:   Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Mark Gottlieb, Practice Leader at MSG

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Mark Gottlieb to the show. Mr. Gottlieb is the practice leader at MSG, a business valuation and forensic accounting firm. He was named one of Forbes’ top CPAs for valuations for 2025 and is an adjunct professor at Fordham University School of Law. Mr. Gottlieb is an experienced litigation support professional. He holds a master’s in taxation from Long Island University. Mr. Gottlieb, thank you for joining me today on Engaging Experts.

Mark Gottlieb: Thank you. I appreciate the invitation.

Noah Bolmer: You have a background in auditing going back to the late 1970s. How did you first become involved in expert witnessing?

Mark Gottlieb: Like many college students [who] major in accounting, the dream at that time was to go to a big eight accounting firm, and I was lucky enough to get a job right out of college at Coopers & Lybrand, which is now called PriceWarehouseCoopers. After a couple of years, I made a lateral move to a firm called Ernst & Whitney, which was also a big eight firm. It’s now called Ernst & Young. I often kid when I lecture and teach that I wanted them to change the name of the firm to Ernst Whitney & Gottlieb, but there wasn’t enough space on the side of the building in Times Square, where they moved so I left and I let them change the name turns to Ernst & Young.

All kidding aside, I have a strong background in auditing, and in my—I guess my late twenties, I decided that I wanted to have my own firm. I went out on my own and started auditing co-ops and condos. I taught myself how to do a tax return, because when you’re an auditor in a big firm, you don’t do any taxes. Your expertise is auditing, financial statement presentation, and things of that nature. After a year to a year and a half of doing that, I got terribly bored. I was looking at a magazine, believe it or not, that specialized in marketing for CPAs. And in the back of the magazine, they had what they called tombstone ads that you could lease or rent for your neighborhood. If you wanted to put an ad for accounting services or tax services, you would buy this ad, pay them a fee, and you could use that ad in your neighborhood. Strangely enough, the ad that they had shown in the back of the magazine was a stereotypical cartoon character of an accountant. The accountant had a visor on his head, and his sleeves were rolled up. He had a pencil holder in his pocket, and he was holding a phone, and the caption was, “Ask me why 200 lawyers call me each year.” I had an epiphany. The epiphany was, why don’t I do accounting for lawyers to help them with their court cases? It certainly had to be a lot more interesting than doing bookkeeping and tax prep work for small businesses or even doing co-op and condo audits.

My wife was a lawyer at the time. My father-in-law was a lawyer. I had always found the legal profession interesting, but I was an accountant, a CPA at the time. I have a master’s degree in tax. I only went to get my master’s degree because I had to somehow learn how to do a tax return. I thought that would help me. Actually, it didn’t, but that’s another story for another time. That ad that I saw in the back of the magazine was the turning point for my career. I realized that I wanted to do that type of work. That’s what I started trying to do. I started approaching lawyers. I started advertising in a minimal and unsophisticated way. I didn’t know what type of services, to be honest with you, I could provide a lawyer. But I knew that lawyers became lawyers because they couldn’t add. They couldn’t—they didn’t like math. They needed someone to do that work for them. In essence, if we were sitting at a coffee shop now, Noah, and you asked me, “Mark, what do you do for a living?” My first instinct was to repeat all the initials after my name with all the designations. Business valuation, tax, and forensic accounting, yada, yada, yada, yada. But, in essence, what I do now is I’m in the financial literacy business. My client base is attorneys, and what I do is help attorneys get through the financial maze of their court cases.

Noah Bolmer: An attorney calls you; maybe one of the representatives gets hold of you. What are the questions they ask to make sure that a) you’re the right expert for the job? b) What are the things that you ask them to see if this is an engagement that you’re interested in taking?

Mark Gottlieb: The first thing I have to do is what’s called a conflict check, because it’s not uncommon that we get calls from both sides of the fence. I ask them to give me the name of the matter. The caption of the case. What courthouse or state the matter is being held in. We do work now- our office is in Rockefeller Center in New York City, but we do work all around the country. So I do the conflict check. If there’s no initial conflict check, I ask them to send me the complaint and the answer. I tell them, “Don’t tell me which side you’re on.” I read the complaint. I read the answer. I call them back and say, “Okay, I now understand what the issue of the case is.” Is it a matrimonial matter? Is it an economic damage matter? Is it a partner dispute? Is it an earn out dispute? Is it a shareholder or partnership issue? I now don’t—I now understand what it is and I say, “Who are you in this, in this play?” And we go from there. They tell me what they’re looking for help on.

Generally, they’re looking for one or two types of experts. There’s what’s called a consulting expert and a testifying expert. A consulting expert is one that sits behind the stage and is the orchestra leader with all the financial information. Whether it be discovery issues, presentation issues, or interpretation issues, but the job of the consultant is not necessarily to issue a report and testify.

The other type of instance that we’re hired as right away is as a testifying expert, in which we will issue a report, and we’ll get in the box next to the judge or the jury. We’ll do a show, and we’ll express our professional opinion. More often than not, we’re initially retained as a consulting expert. Then we transfer our role to the testifying expert and the reason we do that— obviously, you’re an attorney, but I won’t hold it against you, Noah, but you know that when you’re a consultant and you’re hired under the umbrella of the law firm, everything you touch, smell, feel, and see is protected under attorney-client privilege. In that regard, if there’s something that we see that we don’t like, they can fire us. In my 35 years of practice—I’m doing this now, 35 years—there’s only been one occasion in which we’ve discovered something while doing our work that the client dismissed us.

Noah Bolmer: How did that go without, obviously, revealing any details of Rubicon.

Mark Gottlieb: Not only was I dismissed, but the law firm was dismissed also, because we found out that the clients were absolute liars. It happened that there was nothing. It was the right thing to do because we discovered that they were not presenting the information correctly. They got found out, and they had no choice but to fire us.

Noah Bolmer: You talk about transferring from a consultant role to an expert witness role. How does that work mechanically? Do you need to draw up a new contract? What are the steps involved in moving from one role to the next?

Mark Gottlieb: It’s either done by a new engagement letter, a simple letter, or e-mail saying we’re extending the relationship to being the testifying expert.

Noah Bolmer: Let’s talk a bit about preparation. You’ve accepted a case. You’ve drawn up an expert witness report. You’re either going to get on the stand or you’re going to have a deposition. What are the things that you like to do to get in the right head space, to refresh your memory, and prepare yourself generally for a big day, a big matter?

Mark Gottlieb: Let me make something crystal clear. I never go into the box, the witness chair, unless I have prepared the initial draft of either direct examination or cross-examination.

Noah Bolmer: Okay.

Mark Gottlieb: I’ve [been] doing this for many years, and I want to make sure that the lawyer and I are on the same page, so I generally prepare all of the direct examination or cross. I also prepare a draft of the questions that the lawyer is going to ask the opposing expert, because, obviously, it’s rare that there’s only one expert testifying in a case. There [are] two sides to every coin, and so there’s only two experts on every case. My job is to make sure that we hit all the high points. Whether the lawyer is a well-seasoned machine or a younger, less experienced practitioner, whether it be because of the venue or the industry, I find comfort in preparing in that fashion. To be honest with you, Noah, the lawyers are responsive to it.

Noah Bolmer: You don’t get any pushback from attorneys who think you’re kind of stepping on their toes getting involved in trial strategy.

Mark Gottlieb: No, this is not trial strategy. This is presentation. Okay, it’s presentation. I’m not there to opine as to law, any legal doctrine, or any legal position, I’m there to express a professional opinion centered around financial issues, whether it be an evaluation of a business, a reconstruction of accounting or financial records, or a determination of an economic damage analysis. That’s my job. My hope is that the lawyers that hire us—and I must say, I’ve never had a lawyer say, “No, I don’t need you to do that.” They’re very responsive and they respond positively when we give them the tools to make their job easier. That’s the way we do it. By the way, I’ll be candid with you, the reason why I’m so adamant about it is because when I first started to do this work, I didn’t do it. I didn’t know to do it. I kept on saying to myself, why don’t you ask the right questions? It’s not just asking the right questions, Noah. It’s asking the right questions, in the right sequence that create the information you want the trier of fact to understand, because it’s all a matter of communication.

Noah Bolmer: You mentioned earlier, and this stuck with me, that your firm works across the country. When you’re getting into a new venue, say you’re working in a new state or at a new level of government, whatever the case may be, you’re working somewhere that you haven’t worked before. What are the things that you do to prepare yourself? Do you have to thumb through the code? Do you have to talk to your attorney about what the trials look like in this venue versus that venue? It is casual here. It is formal there. What are the things that you as an expert witness have to do to prepare yourself for a potentially unfamiliar venue?

Mark Gottlieb: That exercise starts when you’re first retained because- and I’ll give you a perfect example. In valuation, there are different standards of value. There are two main standards, fair market value and fair value, and different states have different standards. If I’m doing a shareholder dispute in one state, the standard of value may be fair value. If I’m doing it in another state, it may be fair market value. I need to get a better understanding, and a precise understanding, of what is the standard of value that’s being used? One plus one equals two, whether you’re in California or you’re in Vermont. However, you want to make sure that everybody understands the architecture of the mathematical equation. I’m hesitating to say that, like that. I use that as a simple example but let me share with you that what I do as a forensic accountant has little to do with math. In fact, that’s the misnomer that I always discuss when I teach at universities and speak to students that are studying accounting or finance. As a forensic accountant, I’m not necessarily a mathematician. My job is to tell a story. The story happens to center around financial matters, but I’m not sure that it’s not a math test, nor is it a memorization test.

To go back to your question, different states have different standards of value. I have never been in a forum, and I’ve testified all around the country that it wasn’t formal. Whether I’m sitting in the chair physically in the courthouse, or now we’re seeing a lot of remote testifying, it’s generally formal. I prefer to physically be in the courthouse because I like to try to connect with the trier of fact, whether it be a jury or it be a judge. It’s hard to make that connection with sixteen people on a Zoom or Teams call. You don’t know where to look. The lighting’s not great. It’s more difficult. But it’s not terribly difficult to gear up for the different venues.

Noah Bolmer: You talk about remote telepresence meetings, and I’ve heard from a lot of experts that that is indeed the direction that things have been moving. You’ve been doing this for quite a long time. What other ways has expert witnessing changed from when you first started until now? Are there any trends that you see moving forward as an expert besides telepresence?

Mark Gottlieb: First of all, the use of electronics in the courtroom is more frequent now than it was thirty years ago. You go into a courtroom now, and you see an 80-inch television set standing on a 100-pound stand that rolls in front of and away from the judge. It’s hooked up to a laptop. It’s hooked up to an iPad. Often, they’ll even have a paralegal or even a tech person flipping through pages in some type of workbook, whether it be Excel, a PowerPoint, or a Canva presentation. There’s an increased use of electronics that, again, the purpose is to communicate. They say a picture’s worth a thousand words.

Noah Bolmer: Yes

Mark Gottlieb: It’s a chart. It’s helpful to use this technology so you can communicate more clearly and work precisely.

Noah Bolmer: You spoke earlier about how your job is primarily, or one of the main components of it, is as a storyteller. I imagine that some of these electronic demonstratives aid you in that. Tell me about how you connect to the fact finder and how you present topics to laypersons. When you’re talking about forensic accounting, this is obviously something that not all jurors are going to be familiar with or understand. How do you tell a story in your niche?

Mark Gottlieb: Let me answer that in the two questions. That’s a compound question, Noah. You’re not supposed to ask experts a compound question. I’m going to break it down into two parts. First, let’s talk about communicating with the judge who’s sitting three feet away from me. It is not uncommon for me, as someone who testifies an enormous amount, to physically take my chair and turn it so that the judge is not looking at the side of my head. Even if the judge doesn’t stare at me the entire time, the judge knows that I’m focusing on him or her. I’m trying to connect with the judge and draw their attention to the areas that are most important when I’m answering a question. It’s a little more difficult to do that with a jury when you’re staring at a rectangular area in the courtroom that may be 20 or 30 feet away, and there are a dozen or so people lined up in two rows. Some of them don’t want to be there. Some of them want to be there too much. You’re trying to connect with them and trying to read if, in fact, they’re understanding your examples and the concepts you’re trying to express. I know a judge is getting me when he or she is taking notes. I know a judge is getting me if he or she stops me and asks a question. You don’t get that with a jury.

Noah Bolmer: Right.

Mark Gottlieb: Only on TV do you see a juror jumping out of their chair and saying, “Nonsense!” It’s part of the process and it takes experience. It takes practice. You have to fail and succeed until you get to a point in which you’re comfortable. Of course, you’re largely dependent upon the skills of the attorney that hired you. I often—when I go into a courtroom, I often say to the lead attorney on the case, I always ask them, “Did you play football in high school?” Sometimes, they’ll say, “Yes.” [Then] I go, “Me too. Remember when the coach used to say, ‘Protect the quarterback’?” They say, “Yes.” Then, I’ll say, “I’m the quarterback today, so your job is to protect me. I’ll do my job, but your job is to protect me.” These are the things that I do to try to get myself together and get myself in the right frame of mind. I love testifying. It’s great. I don’t sleep the night before, even on an easy case. I practice out loud mumbling, when I’m in bed all hours at night, pretending what I’m going to say. What stories I may share to make a point? What analogies I may use? I don’t sleep at all.

Noah Bolmer: Do you have any other elements to your pretrial routine that you care to share? I have people who say they fast, do yoga, do an affirmation, or listen to heavy metal. Do you have a specific pretrial routine?

Mark Gottlieb: If were to fast more than two hours in a day, I’m afraid something would happen to me, Noah. I can’t. I can’t. Generally, I don’t eat before testifying only because I don’t want to go to the bathroom.

Noah Bolmer: Sure.

Mark Gottlieb: I practice the night before, and I must tell you in the last ten years, I’ve testified over fifty times, I counted because a lawyer asked me just the other day. That’s how I know the answer. I must tell you I grew up in the food industry. I think of my father every time I get to the witness box, because I was the short order cook in my father’s restaurant. He used to yell the orders at me. It was the true essence of multitasking. I always say to myself, if I could handle that as a teenager, I can certainly handle a difficult lawyer trying to embarrass me in court.

Noah Bolmer: With a father as a chef, I can confirm that is indeed the case. Moving on, I have been focusing on depositions because [many] newer expert witnesses are going into their first deposition and don’t know what to expect. It can happen at [many] different places. Sometimes it can be a hotel room or it can be at somebody’s office. You never know where it’s going to be. You never know what it’s going to be like. Some people don’t know where to go, or what to do. If you could walk me through a typical deposition for a newer expert witness. Walk me through the way that it goes step by step.

Mark Gottlieb: I was a consultant in a deposition yesterday, and I prepared all of the documents for the deposition. My office did. We had all the questions. We had almost 1,300 questions. So, for your young, inexperienced experts, let me make something crystal clear. You never win a case in a deposition, but you can lose it. I assume you’re initially asking as the testifying witness in the deposition. That’s your initial—

Noah Bolmer: Yes.

Mark Gottlieb: —because as I said to before, I often work with the attorneys to depose another witness, but when you are the testifying witness, you answer the questions exactly how they’re asked. There [are] no pictures on a baseball scorecard. Unless you’re being videotaped, the deposition transcript doesn’t show pictures either. The only way that a watchful eye or a reviewer can understand what you said is by reading the transcript. But you have to be careful to only answer the question that you’re asked. Don’t speak more than that. Don’t anticipate what they’re trying to ask you. Answer what they said. By the way, I often answer yes or no, because the question is a yes or no answer. It’s not my job to say to the lawyer, “Let me tell you why the answer is no.” They ask a question. They’re trying to elicit a yes or no answer. You answer yes or no and shut up until you get asked another question.

Noah Bolmer: That can probably be a difficult urge for somebody who’s a longtime expert, who wants to be an educator and wants to tell the story.

Mark Gottlieb: There are people, whether they’re smart or not smart, that love to talk. Just remember, the deposition is not your deposition. You’re the target. It’s the lawyer’s deposition. You’ve been in depositions. The lawyer will say—and when the two lawyers fight because there’s a vocal objection, an oral objection, and the lawyer will say, “Counselor, this is my deposition. You cannot make any oral objections.” He’s right. It’s there. Even in trial, it’s the lawyer’s witness and you just have to do what you’re told.

Noah Bolmer: Moving forward to a couple more general questions. Getting off on the right foot with a new engagement, what are the things that you can do when an engagement begins to ensure that it’s going to be effective and efficient, maybe even a little fun?

Mark Gottlieb: The best answer to that question is, don’t wait for the lawyer to ask you for something, whether it be information or work product. Try to do the work at a pace that’s ahead of what the attorney’s looking for because then the attorney will have more confidence in you, and that you understand the scope and girth of the project. Again, that was a compound question, but I’m going to answer it anyway, even though there was no standing objection.

The first thing that we do after we send an engagement letter is we send out what we call an initial document request. Those documents require books and records and other business and financial documents that are maintained in the ordinary course of business. They could be bank statements, brokerage statements, accounting records, tax returns, operating agreements, leases, insurance policies, mortgage and loan applications, employment contracts, et cetera. We review those with what I would call a watchful eye as they relate to the objective of the engagement. That’s what we try to do to set the matter out correctly in the first instance.

The next thing is to make sure that we are—our follow-up requests are well-documented. Now, 35 years ago when I started this, they didn’t have e-mail. I know you probably know what the world looked like, Noah, without e-mail, but there used to be a chisel and a piece of stone. Then they had a fax machine. Then, every time you needed to communicate with the lawyer, you had to type a formal letter and mail the letter. Now things are done much more promptly and much faster. The immediate gratification that people are looking for is both good and bad. But in essence, we have technology now to communicate with the lawyers for them to understand what’s going on. We use that technology, whether we set up a Teams channel for the people involved in a case, so we can chat back and forth, or we can text through the computer program, our practice management software, or we can send an e-mail out. It’s really very— everybody’s pretty accessible, even when they’re not necessarily working in the office. Their phone works like a computer now also. We try to do that to the best of our ability. It’s a little difficult sometimes. We work on fifty to sixty cases at a time. [There are] twelve people in the office and it’s hard sometimes to do that, but we try to do it to the best of our ability.

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

Mark Gottlieb: The best thing that ever happened to me was when I, in the early 1990s, when I started to inquire about the certifications and credentials that I needed to be a qualified expert in business valuation, forensic accounting, etc. I sought out experienced practitioners that I could befriend, and that I could speak to candidly to have them be a mentor to me. There have been three or four people in my professional career that have served that role. I’m incredibly grateful because in the 1990s, I went from [having] a pregnant wife expecting my first child and seeing that ad that I discussed with you before deciding that I was going to do something a little different. To create a firm in Midtown New York City in Rockefeller Center with a dozen professionals, and a national practice. I could not have done all this without the encouragement, the guidance and quite honestly, the affection of other professionals that didn’t mind helping me. That has been a great source of the success formula that we’ve created here. I try to be that person to the younger people in the office here. Although it’s sometimes frustrating, it’s a necessity. It’s a necessity.

Noah Bolmer: Sage advice. Mr. Gottlieb, thank you for joining me today.

Mark Gottlieb: Pleasure. Have a great day.

Noah Bolmer: And thank you as always to our listeners for joining us for another edition of Engaging Experts. Cheers.

Mark Gottlieb, Practice Leader at MSG

Mark Gottlieb, is the practice leader at MSG, a business valuation and forensic accounting firm. He was named one of Forbes’ top CPAs for valuations for 2025 and is an adjunct professor at the Fordham University School of Law. Mr. Gottlieb holds a master's in taxation from Long Island University.