The first time I testified in court was in 1981, the year before I started Mercer Capital. I participated in the preparation of a fairness opinion in a going private transaction while at Morgan Keegan (now part of Raymond James), my employer at the time. A shareholder dissented, and the Chancery Court in Memphis was charged to determine the (statutory) fair value of the company’s shares in accordance with Tennessee statutory law and judicial interpretation. There has to be a first time for everything.
My recollection is that the court’s conclusion was the same price as offered to the shareholders. However, my sharpest recollection was the beginning of my first testimony. I do not recall being deposed in that matter. I was, of course working on behalf of Morgan Keegan. I recall being more than a bit nervous as I reviewed the file and prepared to appear in court. When my day to testify arrived, I carried the big redwell file with all the documents, my valuation calculations, and the fairness opinion to the court.
My God! I’m Guilty!
I was asked to sit on a bench in a big, noisy hallway until I was called to testify, because I was precluded from hearing the other expert’s testimony. I was startled when the door to the courtroom opened and a husky bailiff yelled into the hall, “Mr. Mercer!”
I picked up my big redwell file and carried it into the courtroom. I recall that the ceiling seemed to be about one hundred feet high and that the room was cavernous. I had the redwell file tucked under my right arm as I walked into court. The bailiff directed me to an open area in front of the judge. Then I heard, “Raise your right hand.” I did so, but only after fumbling, shifting the redwell to my left arm. I recall feeling awkward and somewhat intimidated.
And then I heard these words: “Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?”
The inexplicable thought that went through my mind was, and I remember it to this day, “My God! I’m guilty!”
I got over that thought, walked up to the witness chair, was qualified as an expert (thankfully!) and testified. I don’t remember the substance of the testimony, except that it dealt with the fair value of a nursing home company. But I do remember the start of the testimony as if it were yesterday. I was, however, not guilty of anything other than nervousness at my first appearance as an expert witness.
Since 1981, I have testified on average, a few times per year. Put all the testimonies together and it adds up to a fair number of appearances for depositions or trials over about 35 years. By the early 1990s, based largely on work as an business valuation expert witness in divorce court in and around Memphis, and work on several statutory fair value matters, I had testified enough to be a somewhat seasoned witness.
An Expert Witness Mantra
Chapter 20 of my first book, Valuing Financial Institutions, was titled “Expert Witnesses and Expert Testimony.” That chapter reflected my experience until about 1992, the date of publication, as well as reading on the topic and talking with many experts and lawyers.
When fellow appraisers have asked me about working as an expert witness, I have always directed them to the chapter in Valuing Financial Institutions. For years before the book’s publication and for years afterwards, I prepared the following list of reminders – a mantra if you will – on the writing tablet I have in front of me at every testimony, whether deposition or trial. The mantra consisted of seven quick reminders:
- Listen and hear
- Wait and formulate
- Answer the question
- Stop and wait for the next question
- Do not anticipate!
- Be calm!
I found that looking at these words prior to testifying and even, occasionally during testimony if I needed a reminder to pay attention, was very helpful. I still use them occasionally, although I do have a pretty good sense of them without looking at this point – at least most of the time.
Since 1992, I’ve written almost nothing about being an expert witness or about expert testimony. In a few posts in the future, I’ll write a bit about the topic based on 35 years of experience, rather than a decade. It will be interesting for me and I hope for readers, as well.
My two most recent books are available in an Ownership Transition Bundle. The bundle, priced at $35 plus s/h, has been attractive for many business owners, appraisers and attorneys.
Question. If you have an interesting experience testifying (if you are an appraiser), or regarding an experience you had in a deposition or trial with an expert (if you are an attorney), please share in the comments below. If you would rather share with me privately, please do so at email@example.com.
Until next time, be well!