In this episode:
Dan recounts many ways in which humility plays a role for experts and the importance of using attorneys to get a more nuanced overview of materials during preparation. “Experts may have a tendency . . . to jump to conclusions,” remarks Dan, discussing data gathering before a case.
Additional discussion topics include remaining composed under pressure and how much information to divulge during cross. Dan advises, “It’s good to answer quickly, but not too quickly because you have to have time to give a coherent answer and not just go on impulse.”
Note: Transcript has been lightly edited for clarity.
Host: Noah Bolmer, Round Table Group
Guest: Professor Daniel Spulber, Elinor Hobbs Professor of International Business, Professor of Strategy, Kellogg School of Management, Northwestern University
Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer. Today, joining me is Professor Daniel Spulber. Professor Spulber is the Elinor Hobbs Professor of International Business and Professor of Strategy at the Kellogg School of Management at Northwestern University, where he has taught since 1990. He is an accomplished, award-winning economist and author. Professor Spulber serves as an expert witness and consultant on a broad range of topics, including IP, antitrust, technology, and more, with many diverse clients, including the Federal Trade Commission, the Federal Communications Commission, and many others. Professor Spielberg, thank you for joining me.
Professor Daniel Spulber: Thanks, Noah. It is a pleasure to be here with you today and please call me Dan.
Noah Bolmer: Alright, Dan, let’s jump into it. Has economics always been your passion? You have been on an economics track since your undergraduate days.
Professor Daniel Spulber: Economics has been my interest since the end of my undergraduate days. I fought it, but late in my undergraduate stay at Michigan, I took a course in it and have never looked back. I found it fascinating, and I have stayed with it.
Noah Bolmer: You have also been an educator for a long time. How did you get into that?
Professor Daniel Spulber: My father was a professor, and I grew up in the university town of Bloomington, Indiana. I have always been around a university. I started teaching, and it has been about 45 years.
Noah Bolmer: Wow, a good run of it
Professor Daniel Spulber: I love to teach and hope to be able to continue teaching. I do enjoy it.
Noah Bolmer: While we are on the topic of your early career, let’s talk about the first time you were contacted to be an expert. Tell me about your first engagement. It is funny, a previous guest who was first engaged as an expert in the early 1990s, mentioned that they did not realize that paid expert witnesses were a thing.
Professor Daniel Spulber: My first engagement, as I recall, was an electric utility case and, as it turned out, helped spark, no pun intended, my connection to electric utilities, natural gas, and energy in general. Consulting has helped me learn more about industries and started a lifelong interest in regulated industries. That led to additional consulting in various regulated industries, like energy, telecommunications, postal services, etc. I would say that starting consulting was a gift to my career because it helped stimulate my research interest. At the same time, learning about industries helped me understand various subjects.
Noah Bolmer: When was this?
Professor Daniel Spulber: During my first academic appointment at Brown University needed teachers. They started to assign me half of their catalog. I was teaching regulated industries then I started teaching environmental economics, energy economics, intermediate microeconomics, industrial organization, and other courses.
Noah Bolmer: Right in the deep end.
Professor Daniel Spulber: The university threw me into the deep end, which helped me because I learned many different subjects. That was helpful for consulting, and as I mentioned earlier, the feedback from learning about the industries and consulting was valuable in understanding the subjects I was teaching.
Noah Bolmer: How was that first experience? How was your preparation? Did you feel well prepared for either? Were you in a courtroom setting, or was it just a report?
Professor Daniel Spulber: I think I started writing reports.
Noah Bolmer: Okay.
Professor Daniel Spulber: I learned that way as well. Early on, I wrote reports for myself as an expert and helped write reports for other experts who will remain anonymous. I worked for some consulting companies and helped craft economic analyses in reports presented to regulatory agencies. That was helpful to me later as I started to give my reports.
Noah Bolmer: As far as preparation goes, is there anything that helps? Is there anything that lawyers can do to help make your job easier and clarify how they want it, when they want it, how long it should be, and all that mechanical stuff? What makes you feel more prepared and able to do your job?
Professor Daniel Spulber: I think much of it falls on the expert, but there are also some ways counsel can be helpful. It is essential to get the complaint and additional material. You do not want to be making decisions based on a minimal amount of material. If I had to choose, I would say the most important thing I have learned is not to jump to conclusions. That is a danger. In other words, when acquiring a case, a matter, or a question, experts may think they know the answer or jump to conclusions. What is helpful is to obtain as much data as possible, review that data, and obtain the necessary legal documents. Start to review those legal documents, and when you are up to speed on the case, then, and only then, begin to form conclusions. That is the most important thing I have learned. Do not jump to conclusions immediately but take your time. Learn about the industry. Review the necessary documents and data. If you do not know the details, counsel can help because they know the industry and the case. They have a depth of knowledge, and it is critical to tap into that knowledge and be open to it. Let counsel provide you with the information and data. You can gather data and start to form your conclusions.
Noah Bolmer: Dan, what strategies do you use when you talk about data gathering? Are you doing basic research? Are you doing Lexus Nexis kind of work law, something like that?
Professor Daniel Spulber: That is an excellent question. Times have changed. In the past, you could get away with a theoretical argument. My primary training and much of my work are in economic theory. I am sympathetic to theory, and I think it is crucial. The significant change in the law is that people are getting tired of the theoretical argument and want to see some data. They want to see in-depth data analysis and, if possible, some empirical work rigorously using the data. I think people are demanding that today and that is a good thing. It is a significant development, and I have learned much about theoretical analysis, which is informed by understanding industry data. It would help if you reasoned adequately, but I would add the defensive theory that it helps when looking for data and starting to analyze it. In other words, do not go out there and say, “Hey, get me some data.” You have some ideas, questions, insights, and modeling, and then you will be better informed as you seek to find data.
Noah Bolmer: Have you ever found yourself in a difficult situation, either in cross-examination or dealing with opposing counsel? Is there anything where you have had to keep a cool head and your wits about you?
Professor Daniel Spulber: The frank answer is every time because, particularly in deposition and hearings, it is the role of counsel to find out what you want to say, but also to throw you off your game. I tend not to get thrown by that. I am calm with you today, and I am also calm if people are pushing me and trying to throw me off. I am used to it, and it does not affect me. My advice here is this; stop, look, and listen. Stop talking. Look at Counsel. Listen to what they are saying if they are asking you a question. Maybe take a break and formulate an answer rather than trying to talk, interrupt them, or give an immediate response. I have received conflicting advice, sometimes from the same person. They will tell you the answer right away. It shows you are confident. Take your time and wait for a while. I thought I could not do both. I think the better advice is to pause when you formulate an answer. It is good to answer quickly, but not too soon, because you have to have time to give a coherent response and not just go on impulse.
Noah Bolmer: Some of the other guests that I have had on say that what is important is not to provide more information than is asked. Is that also your assessment?
Professor Daniel Spulber: I think that is good advice. You do not need to volunteer information in a deposition. As you know, people are trying to find out what you will say and not just poke holes in in your ideas, but they want to know what you will say later. You do not need to volunteer too much. On the other hand, it is essential to give people something. Otherwise, you do not get any discussion. I think it helps if it is a conversation. It is not to hide the ball. It is not the game. When asked a question, be clear and precise and answer it, not the question you think they should be asking. I always get a kick out of it on TV. Sometimes you watch a news show, and people are often asking themselves questions. It is irritating when they do not answer the question they are asked. They say I think the question is and then ask themselves the question. Then, they answer yes, no, or whatever. I thought, “Wait, who is interviewing who?” The interviewer should be asking the questions, not the guest. That is good advice for experts too. If we can, we should answer the question being asked and answer as honestly and accurately as possible, rather than pose questions to ourselves. But it is tempting.
Noah Bolmer: For all of this, my question is, you are an economist. You said preparation is critical. That is an extensive topic, and a more significant legal framework exists around it. It is constantly changing and different depending on who is engaging you, where you go, or if you are talking to somebody in the United States. How do you remain an expert in such a dynamic field?
Professor Daniel Spulber: That is a great question. I try to keep up. I get up every day, seven days a week, and read newspapers, law news, and papers on economics. I am giving a lecture next week and reading papers from 2023. As part of my lecture, I will present papers that others have written along with my work. I think there is no substitute for keeping up and being informed. Now, I added a journal, which forces me to read hundreds of papers per year, if you can imagine the number. I used to host conferences, but I am not doing that anymore. I would read hundreds of papers for conferences. People made fun of me. They would say, “Why are you reading all of those?” Economics is complex and continuously evolving. Thousands of economists are thinking, writing, talking, and meeting. You cannot follow it all, but you must keep up daily. I believe it is essential to keep up, and not easy. It does take some effort. I am proud that I try to keep up with the profession with the caveat that you cannot get it all. There is an enormous amount of information out there.
Noah Bolmer: Before you wrap up, I want to ask you a little about time management. How do you start? Do you use tools like a calendar app, software, or something to keep everything together?
Professor Daniel Spulber: That is a great question. I want to give you a good answer, but I do not know. The best thing I can say is this. I have a hard time multitasking, so that may seem in conflict with what I just told you. I tend to focus on one thing at a time. That may be the answer to your question. If I am writing something, I tend to be very focused on that thing. When writing a consulting report, preparing for a deposition, or preparing for testimony, I find it essential to work on that in depth. Don’t try to do ten or even five things in one day. I try to do one thing at a time. Take a few days and focus on that thing rather than jumping around. It is the same for academics, which helps me stay focused on one thing. My son is a great multi-tasker. He can do five or six things simultaneously, and I admire that. But for me, I am limited in bandwidth. So, I tend to focus on one thing.
Noah Bolmer: It seems that you are doing a great job, Dan. Thank you for joining me today on Discussions at the Round Table. It has been enlightening and fun.
Professor Daniel Spulber: It is a pleasure talking to you today.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Our guest, Professor Daniel Spulbur, is the Elinor Hobbs Professor of International Business at the Kellogg School of Management at Northwestern University. He has taught for over thirty years. He is a top economist, having won the 2023 Antitrust Writing Award for Academic Writings on Economics, and is a frequent contributor to numerous economics journals. The FTC, ITC, FCC, and many other governmental and private organizations often engage him as an expert.
Many cases require the retention of an economics expert, and the specifics can span a range of focus areas including valuation, profits or losses, damages, and more. Our economics expert witnesses, speakers, and consultants are scholars from major universities and industry professionals.
Intellectual property is a form of legal entitlement which allows its holder to control the use of certain intangible ideas and expressions. The term ‘intellectual property’ reflects the idea that, once established, such entitlements are generally treated by the courts as if they are tangible property. The most common forms of intellectual property include patents, copyrights, trademarks, and trade secrets.
Strategy is a plan or method put into action to solve a problem or reach a goal. There is a what, who, how, and why of business strategy. The “what” is the goal or mission to be accomplished. “Whom” are those creating the value. The “how” is how resources will be used. “Why” relates to why people in the company should want to perform at the maximum level.
Technology is the use of science or knowledge to solve problems or invent useful tools. The advantages of modern technology are easy access to information, promotes creativity and invention, improve communication, productivity, and efficiency. Mechanical technology includes wheels, levers, gears, engines, and belts. Electronic technology like computers and washing machines use electricity to accomplish a goal. Industrial and Manufacture technology is used to create a product. For instance, robots used to manufacture automobiles. Medical technology like MRIs and ventilators help diagnose, prevent and treat disease.