In this episode…

Delivery is everything, according to Mr. Chuck Malkus. Whether facing a judge, jury, live or over the Internet; a confident demeanor pay back dividends. Outline your three most important points and be prepared to deliver them in a way which quickly resonates.

Check out the entire episode for our discussion on tight deadlines, being prepared for intimidation, and scoping out the venue in advance.

 

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Chuck Malkus, President of Malkus Communications Group

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Chuck Malkus to the show. Mr. Malkus is the president of Malkus Communications Group, a public relations and reputation management firm. He’s a published author, ethics speaker, and a sought-after expert witness. Mr. Malkus, thank you for joining me today on Engaging Experts.

Chuck Malkus: It’s great to be connected, Noah, thank you for reaching out.

Noah Bolmer: You’ve been in media and reputation management for over 25 years. How did you first become involved in expert witnessing?

Chuck Malkus: It was an interesting start, Noah. I had written a book about a law firm which included seventy-five attorneys that ended up being a $1.4 billion Ponzi scheme, the country’s fourth largest. After writing that book, I was then approached by many law firms who were impressed with the amount of research, the amount of time that I took regarding interviews and pursuing the bottom line as to what happened with the first case of its kind in the legal industry. That’s how I got started.

Noah Bolmer: You have been doing this for a while now. What are the questions that you like to ask because an initial phone call is a two-way vetting. It’s not just the attorney vetting you for your expertise, what they might make of you, or what juries might make of you on the stand, but  you’re also vetting them. Is this somebody who I want to work with? Do they have a case? What are the questions that you as an expert witness want to hear and want to ask an engaging attorney?

Chuck Malkus: First and foremost, what is the basis of the case? Secondly, how far along are they with discovery, which opens up- that’s a broad question, but you then are allowed to hear from the attorneys as to the context of the case. After asking those questions you find where they are in the discovery process relating to deposition. Part of this questioning is for both of us to benefit in a potential relationship because after I read the complaint, I’m going to ask where they are with given instances that have taken place, that are mentioned in the complaint, and potentially something that they may ask for additionally. I try to open it up as a conversation and try to let them know that I’m more than an expert witness, I’m there as someone who will provide some expertise on what to look for.

Noah Bolmer: Do you typically find that you’re contacted by somebody who gives you sufficient time to be able to do everything that’s required in the role that they want you for or are there a lot of last minute, “I need an expert witness report tomorrow” phone calls?

Chuck Malkus: Fortunately, I’ve been blessed that when I get contacted there is some time to work with, at least four to six weeks, which is important to have as an expert witness so that you don’t feel that you’re on a tight deadline and there’s an urgency. You may not be able to do the amount of due diligence that you would like to.

Noah Bolmer: You mentioned you want to know where they are vis-a-vis discovery. Does that usually require an NDA? Do you get deep into the case with the initial couple calls?

Chuck Malkus: The NDA’s typically come into play prior to the second call and the reason for that is I’m an author. I’m also a TV executive producer. They realize they’re speaking to somebody who may have an interest of taking this further than an expert witness case.

Noah Bolmer: Let’s talk about your preparation routine. You’re brought on and you’re going to go into a potentially contentious cross examination or deposition. What’s your- what’s your pre deposition or pretrial routine? Some people drink a lot of coffee, do exercise, or fast. Do you have a routine that works for you and gets you into the right headspace? What other preparation techniques are useful for you when getting ready to go into a potentially contentious action?

Chuck Malkus: For me, starting the day early with an unsweetened iced tea helps get things flowing properly as far as my adrenaline. What is also important, because preparation is key for any expert witness, as I teach in my speech classes as a professor, preparation begins with an outline. And most importantly, knowing what your top three or four points are so you are able to deliver messages which resonate and raise eyebrows.

Noah Bolmer: Speaking of being a speech professor and also a public speaker, what are some of the techniques that other expert witnesses can utilize to make sure that they’re presenting their best selves in front of juries and judges?

Chuck Malkus: It all begins in delivery, which first and foremost is eye contact, confidence, and a strong presence. You are the not only the expert, but I tell myself that I’m the guru. That might sound a little cocky for lack of a better word, but you have to know your stuff. What I also tell other generations is if you do the work, do the research, take the time, ask questions, and have a curiosity for everything that may be involved, then, when it comes time to step up, you are going to do excellent. It’s the attitude that you have to have. There’s a reason why you are there.

Noah Bolmer: What are some of the caveats? What are some of the problems that newer expert witnesses run into their first time in a tricky deposition, or during cross examination, when they’re getting peppered with many questions and impeached on their credibility?

Chuck Malkus: There are a couple of things. Number one, is the potential to be intimidated by who’s on the other side of the table. When you go into a large conference room, there may be four or five attorneys and a couple of other individuals on the other side—I always also tell them, and this is the TV produce side of me, don’t ever drink their water. Don’t ever allow them to give you something to eat. If there’s something you need, excuse yourself and go to a soda machine. You don’t want to leave any imprints or any reason for them to take that bottle of water, glass, or anything else if nothing else, try to outsmart you. As far as first impressions, you are the strength and you’re just as strong as they are. I tell the younger generations that all the time.

Secondly, it’s important not to believe that they will be your friend. In one of my cases, an attorney came in and he had a box full of copies and my books. He had all four of my books and file, after file, after file of what he had pulled up about me. He said, “I’ve spent a lot of time reading about you.” I said, “Great. That will make this deposition easy.” It was simply that he was going to try to give the impression that he had found something about me personally or that he was prepared to ask me a lot of questions and catch me off guard. He was trying to intimidate me. I had to come back and let him know I appreciated how much he had read and that he bought my books.

Noah Bolmer: Some of the best ways to communicate helpful strategies to newer expert witnesses is through story. What are the pivotal cases, what are the moments in your career as an expert witness that reinforced something that you were already doing or changed some aspect of the way you go about expert witnessing?

Chuck Malkus: Certainly, I’ll provide a couple examples, Noah, with stories of cases that I’ve been involved in. The first one involved a South American country and this country had signed a contract for marketing services with the goal of promoting tourism, visitor engagements, tour operator engagements, and travel agents. It was a multi-million-dollar contract with a marketing company in the United States. Sadly, the marketing company clearly did not have the expertise because they did not deliver on the contracted items, number one. Not even a quarter of them. Number two, they grossly inflated the billing numbers associated with the ones they did deliver, As an executive producer for television series, I know the cost of production. Of hiring camera operators [for] a day long video shoot. They were charging almost ten times the industry norm. I credit my experience in the film industry to identify where there were huge gaps, overbilling, and a simply lack of expertise.

There was a second case which involved a healthcare organization against a large law firm, for reputational damage and legal malpractice. As part of this complicated case, the other side had claimed that the proper reputational harm steps were not taken. It related to media coverage and things they were saying that had severely damaged their reputation. When I took a deep dive, I clearly saw where they had made mistakes relating to proactive media, the charges they had incurred with a flawed public relations campaign, and how they had misspent money that they wanted this attorney and law firm to pay. That was a complicated case, and it was quite extensive. I took it apart, broke it down, and was able to deliver an expert witness report which tossed the misinformation that they were providing and trying to achieve damages on.

Noah Bolmer: Wow. When you’re writing that sort of expert witness report, how do you go about unpacking these super complex situations and making them digestible to people who are lay persons vis-a-vis your industry?

Chuck Malkus: You’re right, it begins with the fact that even law firms don’t have a deep knowledge of the news media, and the proactive steps to achieve media coverage, including television and social media. I always keep top of mind that if this ends up going to trial, I’m going to be sitting in front of a jury box. To answer your question, first, you got to keep it simple. The old “KISS”, and there’s different variations of the last two letters. Secondly, what I try to do is look at each page of the complaint, put it in outline form, bullet what is being claimed, and what is reality. I try to keep it simple for myself, but up front, having in mind the jury box and attorneys who may not have the media knowledge.

Noah Bolmer: Do you use demonstratives in any of your work? Charts, graphs, models, anything like that?

Chuck Malkus:  I have, but again, number one, they’re basic. Number two, at the end of the day as an expert witness, most of my cases are settled before trial based on the fact-based information that I’ve provided. Sometimes, I’ll give specific examples of deliveries as a public relations agency had with campaigns that I previously have been involved in. If the numbers don’t add up, and if the case was going to trial, then sadly the other side probably wouldn’t achieve any success.

Noah Bolmer: To what extent does demeanor play a role in connecting with juries and expressing- getting these points through to them and judges for that matter in bench trials.

Chuck Malkus: Great question. Demeaner, number one, you must be authentic, you must come across as someone who is not only an expert, but [number two] has knowledge in the area. Number three, to have passion for what you do, what you believe in, and what you have reported.

Noah Bolmer: To what extent is the use of humor, a bit of levity- is that a valuable technique, or is it too dangerous to bother with either one?

Chuck Malkus: Let me say first and foremost, that humor can be risky. However, if you are prepared in advance with a one liner- let me be specific- only one liner, it can come across again as you are authentic, speaking from the heart, and most importantly, connectivity, whether it be a judge or the jury.

Noah Bolmer: [Many] of these actions, whether they’re depositions or, in some cases, whole trials have moved to telepresence. Has a lot of your work been online lately?

Chuck Malkus: Some of the work has been online, and it’s in the form of depositions. At the same time, it’s not surprising, what we’ve mentioned about online or in person presence. You should take it upon yourself to portray a strong and confident presence.

Noah Bolmer: That’s exactly where I was going. It can be difficult to remember to do things like maintain eye contact because eye contact in telepresence isn’t where the person’s window is on your screen. It’s at the camera, of course. What are some of the differences between working online in telepresence versus being there? Do you have a preference for either?

Chuck Malkus: Ideally, I’m happy to be there. I want to be present in the moment. For in person, at trial in the courtroom, I feel body language, the use of your hands to emphasize a point, raising your eyebrows, facial expressions, all the things that I teach in Fundamentals of Speech courses at universities also need to be expressed when it is a video call or a video deposition, but not [to] the same extent. Eye contact, the raising of eyebrows, and if you occasionally use your hands, shows that you are engaged. It shows that you are passionate, high energy, and prepared to take on whatever comes in front of you.

Noah Bolmer: Have you worked in different venues? Obviously, there are state and federal courts. There are crimes and courts. Have you worked across different venues and if so, what are the- what are some of the differences that you as an expert witness experience?

Chuck Malkus: It’s primarily county and state courts. The only difference is when you go to a venue that you may not be familiar with, I always encourage arriving at least a day early, and walking the venue to have a personal comfort [for] what you’re going to see, what is taking place, so that you aren’t in any way overwhelmed. I say that because as an expert witness, I take my role personally. What I mean by that is I’m responsible for a professional delivery, and I don’t want any surprises. I want to be totally comfortable and the walk around the day before can help achieve that.

Noah Bolmer: You talk about arriving the day before. That brings me to travel and other billing considerations. What is your billing schedule? For instance, do you use a non-refundable retainer? Do you prefer project rates or hourly rates? Do you have a different travel rate? Tell me a bit about your billing schedule.

Chuck Malkus:  As an expert witness, I strongly believe in the importance of having a non-refundable retainer upfront and most law firms should respect and value the fact that this is what you require to deliver the services on their behalf, number one. Secondly, and it’s in the contract, engagement starts upon receipt of the bank wire. Then, I do bill hourly. When the- if it’s a complex case and the retainer is spent, then an additional retainer is required. Payment upfront for travel, which frankly is 50% of what the hourly rate would be. I do express to the law firm the benefit of arriving a day early and taking the time to do a walkabout, and mostly that’s appreciated.

Noah Bolmer: Let’s talk more generally. Getting off on the right foot with an attorney. You’ve decided that you are the correct expert. The attorney likes you. You’re into the case and it feels like something that you can truly help with. What are the things that the expert and the attorney can and should be doing to ensure that the engagement will be productive, efficient, and enjoyable for both parties?

Chuck Malkus: That begins with the first or second call, before you’re engaged, express how you approach a case. How you feel time will be best utilized, and let them know that one of the ways- this is my process- this is my procedure of doing an outline. This is what I’m going to be looking for. If I have any questions, as far as materials, I will let you know. You will find me to be responsive. I have no problem working long hours. Deadlines are something that my life has always been about and I personally will make myself available if I need to on a weekend. Sometimes when you get close to when your report is due, even if you’ve had four or five weeks in advance, there are things [like] an investigation or a deposition by the law firm that happen at the last minute.

Noah Bolmer: As somebody with a deadline-oriented career, both in media but also in expert witnessing, how do you keep your schedule together and make sure that you have sufficient time? Some of these cases can go on for weeks, months, and in some cases even years. How do you make sure that you are able to find the time and that you can give enough attention to each case that you’ve got going on simultaneously?

Chuck Malkus: The key thing is time management, number one. Number two, I keep a calendar where I block out hours at a time. Third, I make a point of organization with files that relate to each weekly task, then broken down to what is a priority on each given day of the week. I believe strongly if there’s going to be a case which is, let’s say going to conflict with the amount of time that you have in a given month, you express that up front and be honest about it.

Noah Bolmer: Have you had to turn down any significant number of cases for lack of time?

Chuck Malkus: Not for lack of time. I did turn down a case which involved an organization on a reputational damage case that involved accusations and claims which upon first glance didn’t add up. Again, I wasn’t going to take on something which could be a nightmare later. I want to be able to take on cases that I personally believe in, and if there are too many exaggerated claims, then it’s not for me.

Noah Bolmer: That’s interesting. Are there any other red flags?

Chuck Malkus: Maybe one other red flag. On a separate case related to a high-profile organization which was already having some issues that became a plaintiff in a case against a marketing communications agency. It was a multi-million-dollar case where they were claiming that deliverables were not achieved and I don’t know—you [have] to go with your gut feeling. It didn’t pass the smell test, so I walked away.

Noah Bolmer: It’s important to know when to say no. I’ve written on the subject. One of the things that you mentioned that stuck with me was being a member of some of these complex litigation teams. Sometimes, there are [many] moving parts to these trial teams. There might be everything from assistants, paralegals, multiple attorneys, and expert witnesses each in their own field. To what extent, when there are other expert witnesses around, are you interfacing with them during your expert witness engagement, or is it largely compartmentalized?

Chuck Malkus: No, it’s exactly the latter as you’ve just expressed, Noah. I’ll share one. There was one where there were financial damages involved and there was an expert who was a CPA who I needed to speak to after he had written his report, and the report was filed. I needed to have a clear understanding of the formula he had taken to opine and provide testimony on. I needed to be clear without any question, so there was a conversation based on the CPA’s report.

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

Chuck Malkus: First, for newer expert witnesses, the number one skill set they need is to be curious. To be able to ask questions so that they will have the knowledge and the ability to write an expert report which is fact based and provides new insights. For younger expert witnesses, understand that there’s more to the information you receive. Don’t proceed with only what has been forwarded to you. Take the extra mile, add value, and be able to do a deep dive and offer that to the law firm. For attorneys, even attorneys who have been around a long while, it’s important when they are interviewing potential expert witnesses to consider the added value that a given witness may bring based on their industry experience. Secondly, what their initial—when you get to the second call after you’ve read the complaint, what are some of their initial takeaways? What are some of the initial impressions that the expert witness has gained as a result of taking some time and not only looking at the complaint? Frankly, every expert witness, in my opinion, should do some significant Google searches to look at what may already be in the media. What may have already been posted on a social media channel, and to have a clear understanding of what social media posts it has been associated with, and potentially the individuals who have been involved. It’s going an extra mile and expressing that because you just can’t rely on initial discovery. In most cases along the way, there will be additional discovery. There will be additional depositions and frankly if there’s one point of information that’s fact based that you could add to provide to the attorney before additional depositions, you are adding value to the case, and to the law firm.

Noah Bolmer: Mr. Malkus, sage advice. Thank you for joining me today.

Chuck Malkus: It’s been my pleasure, Noah, and keep up all your efforts to make a difference for the legal community. We need more people to provide knowledge and to help them with their preparations.

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

Chuck Malkus, President, Malkus Communications Group

Chuck Malkus is the president of Malkus Communications Group, a marketing, public relations, and reputation management firm. He’s a published author, ethics speaker, and sought-after expert witness.