In this episode…

Never provide a deadline that you aren’t going to hit, advises Mr. Homonoff. While last-minute engagements with tight turnarounds can be tempting, it is crucial that experts are able to complete their work just as thoroughly as with an engagement without time pressure.

Check out the entire episode for our discussions on hired guns, keeping track of your published works, and red flags.

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Howard Homonoff, Senior Advisor for Media and the Entertainment Industry at Grant Thorton, LLC

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer. Today I’m excited to welcome Howard Homonoff to the show. Mr. Homonoff is the senior advisor for media and the entertainment industry at Grant Thornton, LLC, a leading global accounting, and advisory firm. Additionally, he’s a columnist for forbes.com and an adjunct professor of media dealmaking at Fordham. Mr. Homonoff holds a JD from NYU. Mr. Homonoff, thank you so for joining me today on Engaging Experts.

Howard Homonoff: Happy to be here. Thank you.

Noah Bolmer: You have an extensive background in media and law. Tell me how you first became involved in expert witnessing.

Howard Homonoff: One of the areas [of] my career where I had been involved as a lawyer and then as a business development executive was around the production, distribution, and monetization of content. Video primarily. At one time, it was first delivered via cable television. Then, over time, streaming platforms. It was those negotiations that I had been a part of on both sides, at different times in my career, working as a cable operator, where our job was to acquire content from a variety of media companies and deliver it to our subscribers. On the flip side, during my years at NBC, I was general counsel for the cable networks and later ran strategy and business development for some of the emerging digital businesses. It was about how we take the content and brands that we own and distribute them on traditional multi-channel video platforms. Then later stream video and satellite, take the audio on satellite radio, et cetera. That was the process that I’d been immersed in for years. What are the customs, practices, and reasonable actions in a sense around that world of how people interact in that distribution of content? Having been a part of that, I know they are often, and you see the ones that become public, and when XYZ platform says, “We’re going to pull this service.” Or the network says, “We’re going to pull our servers from that platform.” Those tend to be, but there are even those less public ones. They’re all difficult. They’re all complicated, and everybody has strong viewpoints about who’s right, who’s wrong, and how it should go. It’s inevitable that some of those disputes [end] up in court. It might be before a mediator or before a regulatory body. That was how I got into it initially, in one of those disputes. In most cases, not always, but in most cases, on behalf of the content owner, that is arguing that they’re being fair, and the other side has to boil it down.

Noah Bolmer: Tell me about the vetting process in your industry. You receive a phone call from an attorney or the representative of an attorney saying, “These are the facts of the case.” They don’t always reveal everything. How do you decide if this is a case that a) you’re qualified for and b) you want to take? On the [other] side of that coin, as somebody who has a JD, how is the lawyer vetting that expert witness to see if not only are they an expert, but somebody who’s going to perform well in front of the finder of fact?

Howard Homonoff: It’s interesting in terms of how they perform. During my career, for a time, I had a local access cable show called Media Reporter, where, if you wanted to and dug hard enough, you could find the back catalog of some of those industry interviews I did. Sometimes speaking arrangements. As the internet developed, and YouTube became more robust, et cetera, some of that backstory was online and available to people to see [what] I talked about. Everything I did was talk about the industry, whether I was making a presentation or simply engaging with executives, and talking about their business. When people are reaching out, one of the things that has distinguished me over the years is that I am, both in perception and reality, a bit of a Switzerland. When there’s a dispute, it’s difficult, you’re not going to be able to hire somebody to be your expert who has a full-time job inside of a media company, a studio, a cable company, or a streaming platform, because they obviously present, as much as they may say otherwise, they so obviously present those biases. At times, I have been on both sides of that. I have written about it for Forbes and talked about it in class. I’ve been immersed in this, but not necessarily with a particular axe to grind for [either] side. First, it’s word of mouth. Somebody knows me directly, has been a client, worked with me, or the law firm has worked with me in a prior case. Somebody was at that firm and is now in-house and has recommended me.

There’s a bit of the network, six degrees of separation that goes on in this, as I suspect in so many other places. I’m good at passing the “Does this guy know about our business test.” Good at the “Is he in fact objective about the business and is going to look at this case on its own?” You go through a conflict check. When I’ve been with big firms, [it’s much] harder than if I had my own practice, certainly, but that’s a simple thing. Sometimes simple, sometimes more complicated, but a test of “You’re representing this side, is there some tie to the other side, either in the past or currently? Once, I was bounced or denied a case because a private equity firm had an investment on the other side. They were not going to be part of the case. They were a minority private equity investor, but they were clients of the PWC tax department when I was there. Although I never met any of the people involved in any of these areas, that was enough when you ran it through the system to say, “Nope. He can’t be.” That was a conflict from a PWC perspective.

You run through those checks as well. I need to learn enough about the case to make sure my point of view lines up with the people who want to hire me. At the end of the day, you can’t know all of that until you get further into your work, but at least preliminarily, when you’ve got the facts and the relative positions described to you. Are you comfortable being on the side that wants to hire you?

Noah Bolmer: To that end, do you find yourself working on both the plaintiff and the defendant’s side, so there’s no chance that somebody’s going to perceive you or try to impeach you as a hired gun?

Howard Homonoff: I have worked on both sides over the years and there were some that tend to be large entities that are going to hire me because the case has to be worth a lot of money to spend a lot of money on experts. That will tend to involve bigger entities. Again, that body of work that I’ve worked on both in my career as an executive inside of a cable operator, distributor of content, as well as inside of a company making content. That professional background on both sides, and then teaching and writing, which if you read the many published pieces in Forbes, which tell you that “I’m going to call it as I see it.” I’ve come down on different sides, depending on who I think is right or is, let’s say, acting smartly in a particular circumstance.

Noah Bolmer: You are if memory serves a weekly columnist, is that correct?

Howard Homonoff: Yes.

Noah Bolmer: More or less. As somebody who has a lot out there in a big forum, Forbes isn’t small. Is this something where you have to keep track of everything you’ve ever said in the history of your writing so as not to contradict yourself?

Howard Homonoff: Forbes is good—literally everything I’ve ever created for Forbes is available. They keep it publicly available. I do recall a case, now, and that keeps getting bigger. There’s always an associate assigned, it depends the degree to which the—frankly, the law firm wants to invest in this, not as a vetting exercise, but as making sure that there’s nothing out there that’s going to trip me up in a deposition. Or that I’ll be saying something contrary to what- and I may say things contrary to what I said 10 years ago, but not because I’m changing my mind for the case but because 10 years ago, we all know the media world was a different one than the one we sit in today. It’s possible, I may have thought something was a good idea then that clearly isn’t now or vice versa. There have been associates who’ve had the pleasure, I hope, of having to read everything I’ve written for the last 10 years on an almost weekly basis in Forbes. There’s a lot—I suspect that’s a job that AI will take on at least in a summary fashion. The associate will then go to the summaries and work at it from there. But that’s a time-consuming task.

Noah Bolmer: Are there ways that attorneys should be preparing experts for those sorts of eventualities? The facts of this case run askew of something that you said in the past, “This is how we’re going to handle it, and this is how you should answer those questions.” Is that something you are normally advised on or prepared for? Can it hit you, or blindside you a bit?

Howard Homonoff: If the attorney—I try myself to be, not that I go back and read all 10 years or something, but there are certain things, that let’s say over the last two years, because it’s going to be a current dispute. I’ve written about, and I’ve said to the attorneys, for example, because sometimes you don’t know how this will cut. I’ve said something in this area, which actually is aligned with us, but I don’t want that to be perceived as, “He was biased.” Or something like that. “He came in with it. He’s not looking at this case. He’s biased in this direction.” Usually the view is, as long as it’s your honest opinion, we’re hiring you to provide your honest opinion, and so that’s fine. If it is, it’s rare that, I will have a long, strong-held point of view that’s counter to what I’m now going to be saying in court. Again, things evolve, but I’ll rarely all of a sudden take a 180 because I’m getting a check. So that—but it is the lawyers too, that should be- I’m looking at them to tell me if you’ve read something that you have a question about or it seems to not be somehow consistent or you think is at all problematic. Let’s talk about it, but I’ve never been in a case where, “I’m sorry about that article six years ago on X. Now, we can’t deal with that.” It’s usually a much more shaded analysis than that.

Noah Bolmer: Earlier, when we were talking about the vetting process, you mentioned arbitration or other types of alternative dispute resolution, and that is something that experts do engage in. How is it different? How is ABR, as an expert witness, in any respect, from the engagement, from the contract, from actually performing as an expert? What are the differences between being in an arbitration versus a standard trial?

Howard Homonoff: It depends a bit on—I suppose that’s like the classic lawyer’s response. It depends. There have been arbitrations that I’ve been a part of in which they’re in all but [in] the technical legal sense, they seem like a trial. There are witnesses. You’ve been deposed in advance by the lawyers, and then you “testify” in court before “the judge.” It’s an arbitrator, and they may be a retired judge. They may be an attorney. Generally, they are not someone who has any background in the industry, so it’s more of their background as someone who has arbitrated cases and knows the procedure and has that level of comfort. In those, the work that you do. Again, it depends. Sometimes you—most cases I get hired and I’m probably writing a report and then being deposed, but that depends on the procedures involved. Frankly, it depends on the money that’s at stake, and how much the sides are willing to spend on what can be- just because it’s arbitration doesn’t mean it’s not going to be lengthy or expensive in terms of its process.

Noah Bolmer: Many people don’t realize that. They think arbitration happens overnight and-

Howard Homonoff: Right, everybody sits around a table and sort of works it out or something and that certainly hasn’t been my experience.

Noah Bolmer: Let’s talk about formality in demeanor. Is there any qualitative difference in demeanor or the overall vibe of it compared to a jury trial?

Howard Homonoff: It’s less formal. Certainly, when there is no jury and it’s just a judge. A bench trial in court versus an arbitrator. The work before, I think writing the report, deposition, doesn’t look different at all. It’s more at that stage it becomes a bit less, the rules become a little more flexible in the arbitration realm than it is on a federal court level. The FCC has—I have been an expert before the FCC, there you may have an arbitrator who does actually know the industry, has some more direct industry experience, but it is, and again, less formal than a federal court. You’re sworn in, you’ve got lawyers sitting at the tables, and you’re sitting in a box or something like that, a platform. It can be formal.

Noah Bolmer: Let’s talk a little about billing and contracts. You’ve accepted your engagement. You’ve decided that you’re on the same page, you’re the right expert for the job, and you’ve vetted each other. What special terms do you like to use? Do you have a non-refundable retainer? Do you like hourly rates or project rates? Tell me about your billing structure. Obviously, we don’t need the details on the actual numbers, just structurally.

Howard Homonoff: Structurally, I will always ask to have an upfront retainer. Early on, when I had done this, I had a bad experience, honestly, with not being paid anything upfront and having a law firm that I later had to sue because they—I did work and then they more or less changed their mind about whether they wanted an expert or not, which they’re perfectly entitled to do. You pay me for my time and I’ll move on. There’s no guarantee of what you’re going to do or— that was a circumstance where I wasn’t paid anything. The pressure was all on me to go chase down the money. As an incentive to make sure that the other party has call it skin in the game, there’s an upfront payment. It’s not—I don’t make it non-refundable in a sense that if they did, the next day, again, never had this circumstance, say, “We paid you your retainer and two days later, the case settled.” I’ll bill you for the hour I spent. I’ll keep that and return the remainder to you or whatever it may be. It’s against whatever money is owed. That’s the way I’ve operated it. I will sometimes, in almost every circumstance, I do it hourly. Sometimes people will ask for an estimate of where you’re going to come out.

Noah Bolmer: It’s tricky, right?

Howard Homonoff: It’s hard to do that. It’s really hard to do that. I wouldn’t commit myself in any contractual sense to a ceiling. I would simply say, “That’s where I—” maybe before they’ve hired me, I’ll say, “This is where you can do the math. Here’s the hourly rate. Here’s what if you’re asking me for a report and then a deposition. This is the ballpark of where I think it might come out.” It might be close and it might be way off, but it may be something completely out of my control. The other side that—there are many more lawyers involved than I had thought, which obviously raises the overall amount of time and cost of the litigation. I’ll look at that and then there are things. There might be a slight premium for in-court testimony. There is the question about travel and at times I have had to. If you have to travel, and you have [to be] reimbursed just make sure there’s a process around that.

Noah Bolmer: Sure.

Howard Homonoff: If there’s some- sometimes people have a different process for reimbursement of expenses than they do for the billing of time. Those are mechanical, but you need to know what that is and make sure that you’re, “No, you have to send that bill to this.” Or “This goes to the insurance company.” Whatever it is, you comply with. You have to know that. Don’t be in a position where people say, “I don’t have anything to do with this billing thing.” You don’t want to be in that situation.

Noah Bolmer: Let’s talk about preparation. It’s the big day. You’re going into a potentially endless deposition or you’re going into cross-examination. How do you like to get ready?

Howard Homonoff: I’m going to reread my report. If there are a couple of other key expert reports on either side that I know—let’s say the expert that they’ve hired that’s diametrically opposed to me, I will reread that. I’m not an economist, oftentimes, I’m the industry expert to talk about how things work in the real world, how negotiations take place, and why certain things that might not make sense logically to you take place in this industry. Then, there’s an economist who will run what looks like the regression analyses, et cetera. We’re complimenting each other, and there may be a need for me to re-familiarize myself with some of what the economist is talking about. Generally, the areas are different, but it helps me to [have] at least a better understanding for where they’re coming from and questions that may come up about that.

I drink too much coffee in my life. It’s not limited to expert witness testimony, so I’ll cop to that vice, but the coffee is free-flowing and water is obviously nearby at all times.

Noah Bolmer: Hydration is key. You mentioned economists, that’s a great segue to trial teams. It’s not just you and the attorney. Sometimes there are a dozen expert witnesses. Sometimes there are a few who might even be in your field, alternate fields, paralegals, and administrative persons. How much or to what extent do you interact with other members of the trial team?

Howard Homonoff: We’ll take my cue, of course, from the lawyers and what they need. They may think that their economist needs to hear from me in terms of some of the real-world applications of how things work in the business and we’ll have that interaction. There’s not much “You need a better understanding of regression analysis so we’re going to do a session on that with you.” That doesn’t happen too much, but it may be—or simply on their own, if the lawyer gives them the gives them the okay, may reach out and say, “Can I grab you for 20 minutes to ask you about X?” There’s some of that. Sometimes there are—I’m never a fact witness. I’m an industry expert, but there may be fact witnesses that are important for me to talk to and get a feel for. It’s their perspective, of course. Why certain things were done? Why this negotiation happened the way it did? Why this value, this decision was made or whatever it may be. Some of that that goes on and so the team of lawyers is going to vary. Sometimes the partner or partners are hands-on. Sometimes you’re dealing with the lead associate almost the entire time until the very end. The partner, like the dentist, after you’ve had the hygienist do all the work, comes in and says, “Looks good.” Sometimes you have that too.

Noah Bolmer: Have you been engaged in different venues, local, state, federal, across state lines, other countries, anything like that? if so, what are some of the things that you have to think about or be aware of as an expert witness? Do you need to understand any particular laws or any rules of the courtroom? How do you go into a new venue?

Howard Homonoff: I’m going to look to the lawyers who practice there to give me that instruction. Sometimes I’ll get some advice around the arbitrator, or the judge, and they’ll say, “Here’s what he will like. He doesn’t like to get into too much on X,Y,Z. This is the way- and you’ll get questions from him, he’ll chime in, and he’ll say-“ It’ll be the peculiarities or unique elements of the court or the individual even more than the venue. Whether it is and I have had proceedings before the Copyright Royalty Board, which is multiple members listening to my testimony at the same time and all of which can, in that case, ask a question. Other times it’s a judge or it’s an arbitrator that may ask the questions or may never get to that stage. It’s just a deposition and it’s an extremely hostile attorney on the other side who’s asking me questions. Again, it may be just my lawyer giving me a sense of, “We’ve been through a whole bunch of depositions with this. This is what you’re likely to get and when that happens, don’t get thrown.” That type of advice.

Noah Bolmer: Do you find yourself needing to take a proactive approach and ask the attorneys these questions, or are they good at preparing you with that?

Howard Homonoff: Most are good at that. And they’re- if they’re experienced litigators, and they’re always going to be at this level. Somebody senior that has been through this. They’ll take you through that. If I feel like I haven’t heard everything I need to hear, I certainly will ask, but they’re usually good about having a sense of what they want their expert- what they need to know.

Noah Bolmer: Moving to the general, what are the factors that make for a quality, efficient, effective relationship between the expert witness and the attorney? How do you get off on the right foot and how do you maintain that momentum going through the entire engagement?

Howard Homonoff: First, I will never provide a deadline that I’m not going to hit. I will never say, you’re going to get this by X and then not deliver. Sometimes a lawyer may give me an unreasonable one or what sounds like unreasonable, but frankly, if they do, it’s because I came into the case late , which has often happened in many cases where, “Sorry, but we need this report in 10 days.” Then, you go, that’s part of the reason that you’ve gone to somebody who knows the industry. I get it. It sounds crazy, but I get it. It sounds cliche, but open, honest communication is critical. I’m not going to be—if I’m off on the wrong path and it’s not about, “You’re wrong. You have to change your report.” It is about, “This judge needs to hear a lot of detail about the industry because they know nothing. You’ve got the stuff you think everybody knows. Not everybody knows. You have to beef that up.

It’s having a lot of communication, setting reasonable deadlines and expectations, and working out if they have resources that can be helpful to you. When I began this the Internet was always there. I don’t go that far back, but it was less helpful. There wasn’t the AI tool that you have now. Do you need someone to research, and go deep on something? Or to pull up a bunch of Nielsen reports that will save you a lot of time. My argument is always “I’ll do that. It’s not like it’s beneath me, but by the way, it’s much more cost efficient for you to take one of your associates who is being paid less than half of what you’re paying me.” They’re happy to have those opportunities to be helpful, and make things more efficient. Sometimes they may simply say, “I don’t have any spare bodies. I’m going to have you do this.” Again, have open communication about that. I always say, “I’m completely here to support the case, the argument and it doesn’t matter if I do something and then you don’t use it.” It doesn’t matter if I say something and whatever, it’s in support of the case. I only know what I’m doing and what I think about what you’re asking me, I have no idea about Fact Witness Eighteen and the booby trap that is. How that might relate to not focusing on a certain thing or focusing a lot on something else.

Noah Bolmer: Of course, the flip side of that coin is, are there any red flags that you look for that, “I better not either accept this engagement if it’s at the beginning or change tacks and try to right the ship.” What are the things that can happen that can set an engagement off kilter?

Howard Homonoff: If you feel like you’re not getting enough information from the lawyer about the case, “We’ll tell you that later. That’s not that important.” Something like that would be a red flag because I might ask you a question, and if I’ve asked it, it’s important to me. It’s certainly possible that it’s not ultimately important to the case, but if it’s important to my thinking about the case, it’s probably important. If you’ve got somebody saying, “We’ll get to that later.” And “We just want to make sure we got you on board.” That would be a red flag for me. Certainly, if you’re seeing work that is not up to what you think is acceptable or a well-done standard. That’s another one. I usually work with big law firms. They’re professional and buttoned up about these things. If things are taking too long, even bringing you on board sometimes, might be a red flag of do you need an expert or are you let’s get this guy. If we ever need him, we’ll call him.” That’s different than if I’m going to be needed on October 18^th to be at X. You can’t call me on October 17^th and say, “It turns out we actually do need you.” So, those sorts of things.

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

Howard Homonoff: I would say that two things come to mind. One, I’ve come to realize how little you should say when you’re being deposed, unless you need to. When you’re being deposed by the other side, they’re looking to poke holes at your testimony. They’re looking to undermine your credibility. They’re not there to help illuminate why you know so much about this case or are going to add to it. So answer the questions, but don’t provide any more than is needed to answer the question. Literally the barest minimum. That’s counter to what you think of as, “I’m an expert, so I’m going to show everybody why I’m an expert.” Not that. Show your people, your side, why you’re an expert. You don’t need to show the other side that.

Then, I would just say that especially when you are an expert, sometimes you might forget that not everybody knows the stuff that you know. It’s important to tell, and my writing helps me in this. You’re telling a story. You’re not eliciting a bunch of facts, but it is the story that you’re telling and how did the facts that you’re telling fit into that story? That’s how the person listening, especially someone who doesn’t know about the industry, learn things. We learn things through storytelling.

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

Howard Homonoff: Thank you. My pleasure.

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

Howard Homonoff, Senior Advisor for Media and the Entertainment Industry at Grant Thorton, LLC

Howard Homonoff is the senior advisor for media and the entertainment industry at Grant Thornton, LLC, a leading global accounting, and advisory firm. Additionally, he's a columnist for forbes.com and an adjunct professor of media dealmaking at Fordham. Mr. Homonoff holds a JD from NYU.