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Best Practices from a Hedge Fund and Securities Expert Witness - Episode 19



In this episode of the IMS Insights Podcast, we speak with hedge fund and securities expert, Marti Murray, about best practices for working as an expert witness, tips for attorneys working with expert witnesses and litigation, and the role of mentors.

Teresa Barber: Okay. Well, welcome Marti. It's really wonderful to have you. I'm really happy you were able to take some time to come and speak with us today.

Marti Murray: Thanks, Teresa. I'm very honored to be included in your podcast series.

Barber: Well, you've been a wonderful expert partner. I know you've been watching a lot of interesting things that I think our audiences will be very interested in hearing about. At first if you wouldn't mind just telling us a little bit about your background and if you could for our listeners, tell us a little bit about how you first got engaged as an expert witness.

Murray: Sure. So, I started my career journey close to 40 years ago. And, I would say about two thirds of my career was spent in the alternative investments area with a focus on distressed debt investing. And during that period, I founded and ran an SCC (State Corporation Commission) Registered Investment Advisor Murray Capital Management that focused on distressed debt investing. The more recent one third of my career has been focused on doing financial advisory and expert witness work around my subject matter areas, which include bankruptcy, restructuring, business and securities valuation, private equity, and hedge funds. And my expertise in these areas really derived from my career experience having worked in the alternative investments field and having been an investor who actually put capital to work and stressed and distressed companies.

Murray: Interestingly enough, my first retention as an expert witness was through a referral from one of my mentors who is Professor Ed Altman. And Ed Altman is a professor at the NYU Stern School of Business. And Professor Altman is really considered one of the leading academics in the field of bankruptcy and corporate financial distress. And that first case that I did as an expert related to a trade between two hedge funds. It was brokered by a bank in which the two hedge funds were attempting to trade the bank debt of a distress company. The parties were refusing to close the trade, and there was a litigation about that, and I served as the industry custom and practice expert in the trading of distressed bank debt.

Barber: So that is very interesting. And I'm curious to know, it sounds like your industry, having actually been in the seat and driven the car brings us a special perspective as an expert witness in litigation. And I'm curious to know what you have found because since that one engagement, certainly you've done a number of engagements as an expert witness. And I'm curious to know what you find enjoyable about working as an expert.

Murray: Yeah. So I have been retained as an expert over 40 times. I really enjoy the work. Each case is different. The issues in every case are different. I really enjoy working with the diversity of counsel. I’ve been very fortunate to have worked with leading counsel all over the country, and I really enjoy the intellectual challenge of it. So, I was a hedge fund manager. And as a hedge fund manager, you make a series of investment decisions. Do you buy, do you sell, do you hold? And you made those decisions based on your experience and your judgment.

Murray: Being an expert is almost a higher level of work to me because not only do you have to apply your experience and your judgment, but you actually have to be prepared to write it up and cite everything and testify to it. And so, to me it's the ultimate intellectual challenge. And I've been doing this work now for about 10 years, and I'm always learning something new and seeking to make myself a better expert with each engagement that I do.

Barber: All right. I hear you on the intellectual challenge and I'm curious. So, if you were speaking with someone who had just been engaged for the first time as an expert witness, what advice would you have? What tips would you share with them?

Murray: Yeah, sure. So, I think what cannot be stressed enough is that one's value as an expert relies on your credibility, your integrity, and the quality of the work that you do. And I just can't stress that enough because as an expert, you really have to do everything in your power to protect and enhance your reputation for those things—credibility, integrity, and quality of the work. I guess another piece of advice I would give is that when you get retained, make sure that you and counsel have a clear understanding of what the scope of your engagement is. Exactly what it is you were being asked to do and make sure that you have very open line of communication with counsel and that you're communicating with counsel early and often.

Murray: Also make sure that you have the analytical support that you need to complete your engagement. And if you're not comfortable with anything that you're being asked to do, speak up about that because you do not want to get over your skis with your opinions. You really need to be comfortable with all your opinions at the end of the day. And it's very important to have that open line of communication with counsel, so that as an expert you are comfortable pointing out areas that you're not 100% confident about.

Barber: That's great advice. You mentioned earlier having enjoyed working with the perspectives of the diversity of counsel. And I know you're working with very accomplished attorneys. For attorneys who are for the first time, for attorneys who are about to engage with an expert witness for the first time going into litigation. And I know you've seen a lot of things that have worked well and provided you guidance on those engagements over the many years. What advice would you give to those rising attorneys who are about to work with an expert witness for the first time?

Murray: Yeah. So in my mind, one of the most important questions is whether or not the expert is going to be able to testify effectively about the issue at hand. What makes them qualified to testify about the issue at hand? Because that's what's going to come up in a deposition when opposing counsel is trying to establish, in fact, that as an expert you are not qualified. So as an attorney seeking to identify the appropriate expert, I would almost suggest asking the questions that you would ask that expert if you were cross examining them in a deposition.

Murray: When I'm interviewed as an expert, one of the things that I try to do is I will typically be sent a set of documents by counsel to give me some background on the case. So maybe there's a complaint, maybe there's a response and I will review those documents and then I will give some thought to what do I think the likely areas, the likely subject matter expertise that I think are likely going to come up in the case. And then I try to think through, do I have that subject matter expertise? When I get in that position, am I going to be able to testify that I in fact have that expertise? What makes me qualified to talk about that?

Murray: So, I think that's really important for counsel to establish upfront that your expert is going to respond to those questions in a deposition effectively. The other thing is if you have not worked with an expert before, there's a tension between, you want the expert who has the best subject matter expertise, but there's also something to be said for an experienced expert who has been through this before and who understands the drill of what it means to be an expert and understands how to testify and has testified before and has been challenged and has handled those challenges successfully.

Murray: So, I think that there's a balance there. And I think if you are an attorney that hasn't worked with an expert before or is newer to litigations that have involved experts, there's something to be said for considering that aspect of the experts background, which goes to their actual experience being an expert. Obviously you need the subject matter expertise as well, but there's a combination of those two things that becomes more important, the less experienced counsel has and be in working with experts.

Barber: Well put Marti. You mentioned Prof. Altman a few moments ago at the NYU Stern School of Business. One thing I wanted to ask you about was, what's the role of mentors in your life and very accomplished yourself? It sounds like you've had a number of mentors including Prof. Altman. So could you share with our listeners a little bit about how mentors have shaped your life and one area we've... We pay attention to diversity and inclusion in the legal industry and also in the STEM fields working with a number of scientists and engineers that we do. And I would like to hear what advice you would have for let's say a middle school student or a high school student who is looking around their immediate family or their network and don't see someone in that network or in their immediate family who has that profession of their dreams. What advice would you give them on how to find those mentors or those role models?

Murray: Sure. So I differentiate between mentors and what I would call sponsors. So the difference to me is that a sponsor is someone that once you're in the workforce, is going to help you in your particular company to further your career in your particular company. A mentor to me is something different. And yet Prof. Altman has been an amazing mentor to me and he's also a friend. But a mentor to me is something different. A mentor is somebody who you admire. There's something that they do, whether it's they teach very well, they're a great expert, they're a great writer, they're great arguing in court, that you want to replicate, you want to have that skill. And so I don't believe in just having one mentor. I believe in having many mentors throughout your life where you see something, if somebody has a quality or a skill and you think to yourself, I would love to have that skill and you develop that in yourself.

Murray: So you basically become a composite of all of your mentors. And I have had a number of mentors in my life. And what I try to do at this stage of my own career is to pay that back by helping other people who are looking for some guidance or some help in a particular area. And also just by being a good role model in terms of the work that I do as an expert or as a financial advisor. In terms of young people, maybe a high school student who may not have somebody in their family or network of people that they know that can really play that role.

Murray: I think it's really important for young people to be able to communicate what it is they want to do. If they have a passion for something, they want to do something, speak up, tell people what you want to do because you don't know who people know. Even if people are not in a particular field, they may know somebody who is, and in fact might have never occurred to them to put two and two together. But once the young person is able to verbalize what it is that they want to do, you're making it easier for the person who you do know to help you.

Barber: Ask that question. Just ask the question and...

Murray: Yeah.

Barber: Yeah. That's great advice.

Murray: So I think that's really important. And I also think that one benefit of the internet and social media is it's a lot easier to get smart on something. Do your research, read the newspaper, if you're passionate about a particular industry, find out what the trade journals are for that industry. Read those trade journals, follow those people on Twitter. There are numerous free information resources that are available. There are webinars that are available. There's a lot out there that's free that young people can use to educate themselves on an area and also to find out the thought leaders in that area who there's nothing stopping them from reaching out to people directly. So that would be something else I would suggest is, make the use of our interconnected world.

Barber: It is really interesting the number of resources, the depth and breadth of resources that are available now to guide those questions. So really good advice Marti. Thank you.