Some of life’s best lessons come from everyday experiences. This week, I had a chance to reflect on two days, 45 years apart, and what I learned from them and the years in between.

I sold my first business appraisal engagement in December 1978. In 1981, while still at Morgan Keegan & Co., I testified for the first time at trial in Chancery Court in Memphis, Tennessee. This week, I testified in a trial in Fredericksburg, Virginia, some 45 years later.

Between those appearances, I have testified at deposition or trial about 200 times. That sounds like a lot, but it works out to four or five times a year. I have slowed down in recent years, although this week’s testimony probably won’t be my last.

While waiting for my turn in Fredericksburg, I found myself remembering that first appearance. There was plenty of time to think. In both cases, I spent two and a half hours waiting on a courthouse bench before anyone asked me a question.

This post may seem to be about my life as an expert witness.  But it is really a post about things we can learn from life.

My First Testimony

Morgan Keegan had rendered a fairness opinion in the going-private transaction of a small, publicly traded nursing home company. Some shareholders dissented from the price offered, and the court was being asked to determine the fair value of their shares under Tennessee law.

I knew about the work we had done, but little about the litigation. Then an attorney for Morgan Keegan called. He told me to organize the file and report to Chancery Court a couple of days later.

I arrived early carrying a large redwell file and a packed briefcase, expecting someone to explain what would happen and what I needed to do. That conversation never occurred. As the saying goes, I was scared witless.

The bailiff announced, “All rise!” We stood as the judge entered. Shortly afterward, opposing counsel asked him to invoke “the rule.” I had no idea what that meant. In my case, it meant waiting outside so I would not hear any testimony before my own.

“Mr. Mercer, you will need to wait outside,” the judge told me. “There are benches there where you can sit.”

I gathered my belongings and went out. And waited. And waited. After about two and a half hours, the bailiff called me back.

The courtroom was enormous, with a high ceiling that did nothing to make me feel more comfortable. The judge directed me to stand in an open area between the bench and the attorneys. A woman asked me to raise my right hand.

My file was tucked under my right arm, and my briefcase occupied the other hand. After an awkward shuffle to set down the briefcase and transfer the file, I managed to raise my hand.

Then came the oath: “Do you swear that the testimony you give here today will be the truth, the whole truth, and nothing but the truth, so help you God?”

I will never forget the thought that flashed through my mind: “My God, I’m guilty!”

Fortunately, what came out was, “I do.”

I remember virtually nothing about the testimony itself. It is a blank in my mind. Afterward, the attorney said I had done a good job. I later learned that the outcome supported our fairness opinion. There were congratulations back at Morgan Keegan. Mostly, I was grateful to have survived.

But I made myself a promise: If called to testify again, I would prepare thoroughly—both on my own and with counsel. I never wanted to walk into another courtroom feeling that unprepared for what would happen.

Back on the Bench

The Fredericksburg case involved a dispute over buy-sell provisions in an operating agreement. The particulars are confidential and aren’t needed for this story.

This time, preparation looked quite different. On Monday morning, I met with the attorney and client. I had prepared a PowerPoint presentation to help organize my testimony. We worked through it carefully, coordinating questions and responses and making revisions until late afternoon.

Back at the hotel, I rested and continued preparing. By bedtime, I felt as ready as I could be.

Tuesday morning brought a few surprises. No food or water in the courtroom. No computer or iPad. My phone went into a locked YONDR pouch. I could carry it, but I couldn’t use it.

Then the other side invoked “the rule.” Out I went to a bench that must have been designed by a masochist. Forty-five years later, another two-and-a-half-hour wait.

The difference was what I brought to that wait. In 1981, I had a file, a briefcase, and little idea what lay ahead. This time, I knew my material and understood the process. Waiting was uncomfortable, but it was familiar.

My direct testimony lasted about an hour and a half. Opposing counsel’s cross-examination lasted less than five minutes. A short cross-examination leaves an expert wondering: Did counsel think the testimony needed little challenge, or prefer not to give the witness more time to explain it? Naturally, I hoped for the latter, but brevity alone tells us little.

Because I might be needed for rebuttal, I returned to the hallway while the opposing expert testified. Three more hours on that bench—or, preferably, away from it. This time I had accidentally left my materials and notepads inside. With no computer and no iPad and my phone locked up and nothing to write on, even my pen was useless.

So I walked. Between the two waits, I logged about 5.5 miles in the courthouse hallway. Nearly seven years of regular walking had prepared me for at least that part of the day.

No rebuttal was needed. I left grateful that we had prepared carefully and feeling that we had presented our analysis clearly. The court’s decision will come later.

Preparation Makes Room for Calm

That first appearance taught me to prepare. Later appearances taught me that knowing the material is only part of being ready.

Expert testimony is stressful. Opposing counsel can challenge both your analysis and your credibility. It is easy to become defensive, answer too quickly, or start arguing. None of those reactions helps explain a complicated subject to a judge.

Over time, I developed a routine: Listen to the question. Make sure I understand it. Pause long enough to formulate a reasoned response. Answer slowly, focusing on the question actually asked. Then wait for the next one.

Anticipating the next three questions can distract me from the one I need to answer. And matching an attorney’s agitation with my own rarely improves anything.

I have learned these lessons through trial and error. Preparation gives me something solid to rely on and helps me to remain calm. Pausing gives me a chance to maintain the calm.

Beyond the Courtroom

Most readers will never testify as expert witnesses. But all of us face situations that go better with preparation and a little calm.

A doctor’s appointment is one example that becomes increasingly familiar as we age. Writing down symptoms, changes, and questions beforehand helps us use limited appointment time well. Otherwise, it is easy to leave and then remember the most important thing we meant to discuss.

The same principle applies to a conversation with a financial adviser or an important discussion with family. What do we need to understand? What do we want to ask? What can we do beforehand to make the conversation more useful?

Calmness takes practice, too. A difficult question doesn’t always require an immediate answer. We can pause, ask what someone means, and listen without composing our rebuttal while the other person is still speaking. I’m still working on that outside the courtroom.

Forty-five years of experience cannot guarantee a favorable ruling – or a comfortable bench. But those years have given me opportunities to learn how to arrive better prepared and respond more thoughtfully.

That seems part of aging gratefully: appreciating the experience we have been given and continuing to put its lessons to work. This week, I was grateful to be able to do the work, to feel prepared, and to have the legs to turn a long wait into a long walk.

As always,

Be well, and age gratefully,

Chris

PS If you like what you read on this blog, tell your friends and share with your social media.  If you like it, they probably will, too.