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Expert spotlight: Effective testimony starts with the story

Anna MeyendorffPartner Anna Meyendorff has extensive experience testifying and consulting on complex antitrust matters. She has worked on matters involving monopolization counterclaims in intellectual property disputes, aftermarket monopolization claims, and claims of collusion in a variety of industries. She also has significant experience regarding appropriate royalty payments under the Copyright Act. Through her experiences as an expert, Dr. Meyendorff has always found that clarity of exposition is critical in both written and in-person testimony.

Q. Once your analysis is completed, how do you turn that into effective testimony?

A. There is a storytelling aspect to testifying. Of course the expert must explain her findings, but some explanations are more compelling than others. Expert testimony needs to be accessible and make sense to people who are not economists. For instance, to come to a reliable conclusion, an economist must typically build an analysis using accepted economic methodology. Think of this as equivalent to a mathematical proof. Being explicit about the required steps, which vary depending on the analysis being performed, makes testimony both more transparent and more accessible.

Keeping those necessary steps in mind is also useful in the rebuttal phase. If the audience—judge, arbitrator, or jury—understands the steps involved in reaching a particular economic conclusion, the expert can point out when essential steps have been skipped, and thus when the opposing expert’s conclusions are unsupported and unreliable.

Q. How do these points affect the way you approach working on an affirmative or a rebuttal report?

A. I’ve worked on both sides and find that I can bring my experience working for plaintiffs to bear in defense work and vice versa. My understanding of the economic framework, and my perspective on effective exposition, provides a template for both affirmative and rebuttal reports. In the Dodson International Parts matter, I evaluated and rebutted testimony by the plaintiff’s economic expert. My rebuttal focused on the fact that his analysis was incomplete: it was missing several steps that were essential to supporting his conclusions. For example, the plaintiff’s expert did not use economic evidence to show that the aftermarket for engine parts and service was distinct from the primary market for engines, an essential step in supporting a claim of aftermarket monopolization.

Of course, another aspect of clear exposition is an understanding of the industry at issue. Data analyses must be informed by such understanding, which I find both challenging and very interesting.

Q. The Dodson International Parts Inc. v. Williams International Co. matter to which you just referred was an aftermarket antitrust case in the aeronautics industry. What stood out about that experience for you?

A. In my testimony, I was given the opportunity to lay out for the arbitrator the specific steps that an economist must take to conclude that a defendant violated antitrust law. In an aftermarket case, market definition is critical. If the market is assumed to be narrow, the remainder of the analysis can lead to the conclusion that the firm was a monopolist. Careful definition of all relevant economic markets may instead show that the firm faced vigorous competition. In my testimony, I described the types of economic analyses that can support a monopolization claim, properly defining an economic market, providing evidence of market power, and showing harm to competition. The arbitrator seemed to appreciate my “tutorial,” as she cited it in her decision, even noting that the opposing expert provided insufficient analysis and evidence for his market definition.

Q. Why do you find it helpful to spend time thinking about matters from the opposing side’s perspective?

A. Sometimes, the analyses that the opposing expert neglects to conduct reveal as much about the case as those presented in his or her opinion. As I noted, it is helpful to determine what analyses should be undertaken to support the opinion of the opposing expert and then assess whether such analyses were adequately performed.

For example, I recently submitted a report rebutting an expert opinion in an international arbitration. The claimant was seeking compensation for capital expenses related to compliance with environmental regulations. The plaintiff’s expert conducted an analysis claiming to show that the capital costs of compliance would not be passed through to the plaintiff’s customers. However, he limited his analysis to the very short run, neglecting to estimate pass-through over the full period during which the capital equipment would be used. When I corrected his analysis, which used historical data on the plaintiff’s costs and prices, and properly characterized costs as fixed or variable within the relevant time frame, I was able to demonstrate significant pass-through of capital costs.

Q. What have you learned about preparing for testimony that you wish you had known the first time you testified?

A. To build on what I’ve already said, successful testimony includes communicating a clear story and sticking to the narrative. I’ve learned to prepare by making sure not only that I can explain all the analyses in my reports, but also that I can tie each of them back to the bigger picture. When opposing counsel asks me about some analytical detail, I can use my response as an opportunity to reinforce the bigger narrative.

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