Why I Enjoy Working as a Franchise Expert Witness and What to Expect From Me

It was the fall of 2009. The late Jack Dunham, one of the premier franchise litigators in the country, called and asked me if I would be interested in being an expert witness for a large important case he had in federal court in Connecticut. I told him I had only served once before as an expert witness. Jack was undeterred. He described the case, and what I would need to do, and ended by asking me: “Does that sound like fun?” I responded by telling Jack that I had never considered poring over documents, preparing a lengthy report, testifying in federal court, and being grilled by someone trying to trip me up to be fun, but I agreed to testify.

Jack called only three witnesses in his case. His morning witnesses were the company’s chief marketing officer and myself. I was on the stand for about 30 minutes of direct testimony, and for more than an hour of cross examination. The afternoon was devoted to the founder of the franchise company. As Jack usually did, he won the case. A few days after the trial, I called Jack and admitted “Yes, it was fun”.

Serving as an Expert Witness Is Not the Way to Make a Living

We all know there are “experts for hire” who will testify on behalf of almost anyone who will pay their fee. I have run into a couple of them both in my representation of franchisors and while serving as an expert witness. When I see them at IFA or ABA meetings and ask how they could take the position they were taking, I often get some sinister-looking smiles. Personally, I cannot imagine waking up each morning trying to remember the position I took on another case last week! Trial lawyers sometimes face that quandary as advocates for their clients, particularly when they learn of facts they did not know when they began the engagement. However, an expert should never do so. Moreover, it cannot be “fun” to submit to cross-examination after taking a tenuous position, or one that flies in the face of authority. I have been fortunate to have had enough transactional work from my franchisor clients, and enough work as a mediator and arbitrator, to never have been tempted to accept an engagement as an expert witness to pay my bills.

My Approach to Expert Testimony Work

I once served as an expert witness with a prominent franchise consultant. After the consultant read my report, he told me that his report looked like it was written by an attorney, and my report looked like it was written by a consultant. I don’t think he meant it as a compliment, but I took it as one because I believe that an expert witness, and particularly a lawyer who serves as an expert witness, should express themselves in clear and concise language without trying to sound like the smartest person in the room – if for no other reason, because the expert is often not the smartest person in the room. Hopefully, however, the expert is the most experienced person in the room regarding the subjects on which they are testifying, and they need to be able to express their opinions in language that individuals with little or no experience in the area will understand.

A good expert should not be defensive or afraid to face a lengthy cross examination. An experienced trial lawyer will often try to break the expert. This goes to the point I made above about not being the smartest person in the room, but the most experienced person in the area. For those of you with children at home, think of it this way: imagine there is a case about your children, their quirks, their personalities, and their experiences. Imagine that the best litigator in the world is cross examining you. That litigator will never know your children as well as you do, and therefore should never be able to intimidate you when you are talking about a subject you have lived with every day for 10 or 20 years or, in my case when it comes to franchising and the law, for 45 years.

As I get older and have become better known throughout the franchise legal community, I have received more calls to serve as an expert witness. While I have accepted the engagement in more than a dozen cases, I have turned away many more, often by bluntly telling the attorney who called me that I did not agree with his or her position. However, there are situations where a franchisee is trying to turn a compliant franchisor into a guarantor of their success, and in those cases, the trier of fact can benefit by having an experienced third-party explain how franchising works and the responsibilities of the various parties. And yes, there are also some bad franchisors. Those people harm not only their franchisees but everyone involved in franchising by giving franchising a bad name and making it more difficult for honest and responsible franchisors to conduct business. As a result, I have testified occasionally on behalf of franchisees.

The Way I Work With Prospective Engagements

If you have a case where you are considering hiring a franchise expert, I would be happy to speak with you and give you 20 minutes of my time. After all, when you have focused on one area your entire adult life, you tend to talk about it even in your spare time and, sad to say, sometimes dream about it at night. Thus, I am happy to give you that time, hear your client’s story and tell you whether I think I can help. If we both think I can, then, similar to other legal work I do, I work on an hourly basis with an upfront retainer. In many cases, I am called early enough in the case to be able to help the litigator analyze their case and identify the points they want to stress. In fact, I am usually initially hired as a consultant, and only named as an expert later in the process when experts must be named. That gives us both a chance to see how well we work together before you must name me as an expert in the case. There will also be situations where I cannot support your position, either because I do not agree with your analysis or do not have the expertise to assist you.  In those situations, I may be able to (i) suggest settlement strategies to help get your client out of the case with a better result than going through a long and costly trial, or (ii) recommend others who might better support your client’s position.