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Expert spotlight: The road less traveled to becoming a testifying expert 

Makeda Murray’s path to economic consulting was fortuitous rather than deliberate. She is not a PhD economist, but her education, work experience, and industry knowledge position her for success as an expert witness. As Principal and Co-Chair of the Mass Torts Practice, Ms. Murray talks here about taking the path less traveled on her way to Bates White, her experiences at the firm, and what’s next for her.

Q. How does your non-PhD background and expertise fit into the Mass Torts Practice?

A. When I started at the firm, I had recently graduated from Wharton with an MBA in Strategic Management. Back then, the cases in the Mass Torts Practice fell into three broad categories: asbestos bankruptcy and valuation, insurance allocation, and a catch-all “other” category of cases that were not the practice's “bread and butter.” The Mass Torts Practice is well known for its asbestos valuation book of business. What is probably less well known about the practice, or at least was historically, is all the interesting non-asbestos-related mass tort cases that we have worked on over the years—for example, recent cases involving allegedly defective auto manufacturer parts and combat earplugs, wage arbitrations, as well as bankruptcy valuations for talc, opioids, and abuse.

By equal parts luck and preference, over the years I have worked on cases that tend to fall into the “other” bucket. My first mass torts case involved estimating the potential damages to be paid by a for-profit university system that had received billions in federal student aid and grants for which its students allegedly should not have been eligible. Since then, I have worked on defective seatbelt cases, mass casualty event cases, labor disputes, and the occasional asbestos-related case. I have really enjoyed the case and subject matter variety during my time at Bates White, and definitely think that apart from the people, the matter diversity has kept me really engaged. Plus, the diversity of the cases has offered me the chance to learn new skills—not only different kinds of analyses but successful client interaction as well.

Q. How are those types of cases different from “core” mass torts cases?

A. The foundational aspects of the cases aren’t really that different from core mass torts cases. Each case involves estimating liability of some sort. What is different or unusual is usually the context—the industry, situation, or product that forms the basis of the case.

Q. What did you do before Bates White, and how did it prepare you for this profession?

A. Prior to coming to Bates White, I worked in actuarial consulting, another niche consulting industry, as a Senior Actuarial Analyst. In the Retirement Practice, where we focused mainly on defined benefit plans (i.e., traditional pension plans), I processed and analyzed data, evaluated pension benefit redesign options, and worked on de-risking initiatives for companies with large pension benefit obligations.

There are numerous parallels between the work I currently do at Bates White and my previous job. For instance, this year Bates White provided consulting support to a client that is interested in transferring its asbestos liability and associated risk to a third party. In 2012, I worked on a similar matter, transferring pension liability for a large US auto manufacturer. I do not believe that the non-asbestos cases at Bates White necessarily require different types of expertise, but I am intellectually curious, comfortable operating in ambiguity, and interested in working on cases that we do not typically see in the practice.

Q. What do you enjoy about these types of cases?

A. It might be a function of my more generalist, MBA background, but I am really interested in working on problems that don’t have an established roadmap, where I have to figure out how to get from point A to point B. There are clearly established ways of approaching cases dealing with familiar topics, and there are people in the firm who know certain issue areas like the backs of their hands. But the cases that excite me are the ones where I’m learning about a new industry or thinking about how to approach a novel problem.

In the past five years, on the cases where I have learned the most, I started out knowing the least. Before working on these cases, I had never thought about how to equitably compensate the survivors of abuse or mass casualty events. These matters were incredibly sensitive in nature and difficult to work on, but I am proud of Bates White’s integrity, objectivity, and data-driven approach to the work we have done on such cases.

Q. You need a breadth of experience for such a range of cases. What prepared you for that?

A. I believe that the MBA program was good preparation for how I approach these cases. In general, I think that economists have depth of knowledge; they tend to focus or specialize on a particular field or area—labor economics, econometrics, antitrust, and so forth. I think of the MBA experience as one focused on breadth of experience as opposed to depth. While at Wharton, I took courses in a wide range of subjects—economics, supply chain, accounting, finance, entrepreneurship, people management. And that really cultivated in me the idea that while I might not know something, I can figure it out.

I also think that the leadership and people management aspect of the program has been invaluable in terms of how I approach managing projects and teams of people. My non-traditional background is a great counterbalance to the practice; it brings a different perspective that allows for different contributions on cases.

Q. The BSA matter was your first as a testifying expert. How did you prepare?

A. We were retained on the BSA Chapter 11 reorganization as the Debtor’s data and liability estimation experts in late 2019. I worked on that case for more than two years, almost to the exclusion of everything else. For me, it was a singular, highly immersive experience that made testifying easier because I really knew the material. I was afforded the opportunity to testify for the first time as the data expert on that case, and I have to credit the BSA team for preparing me to face the music (or the firing squad).

There are things you don’t really even think about that are very important in that process—like how well you present yourself and how confidently you come across. You obviously have to know your stuff, but if you know your stuff and you fidget, or you slouch, or, in my case, you have the habit of constantly shaking your legs, you diminish the effectiveness of your delivery. I did a lot of deposition and trial prep in-house, and with client counsel, to prepare. 

Q. How did it go?

A. It was the most nerve-wracking experience in recent memory. Leading up to the big day, I questioned the wisdom of having my first foray into testifying be on a case of that magnitude. In those moments, I really wished it had been a nondescript case where the stakes weren’t too high—so that if I fell flat, the consequences would be smaller for our client. I found myself wondering, “If an expert falls flat testifying in a virtual courtroom (because of COVID) but nobody knows, did they even fall?” But when I really thought about it, falling flat with a big client and falling flat with a small client probably feels the same way to the client. So I turned my focus from worrying to doing the very best I could—I prepped with Bates White counsel, the client’s external counsel, and with the consultants on the team. I read and reread my reports, as well as opposing experts’ critiques of my reports. I prepared rebuttal points and reviewed our data processes, assumptions, and statistics. I did everything I could, and then I hoped for the best. And the universe decided to be kind.

I testified on March 21, 2022, at a Zoom hearing for a little under two hours. When it was over, I felt like I exhaled the biggest breath I’d ever held. Shortly thereafter, I received emails from counsel and the client congratulating me on a job well done. Looking back on the experience, I find myself grateful that the case was a significant one, because now that I’m on the other side of it, I definitely feel that if I could do that, I can seize the next opportunity that comes my way.

Q. What’s next for you in the practice and at Bates White?

A. I was recently named co-chair of the Mass Torts Practice, so I’ve become more immersed in the business management and strategic side of things. It’s funny: managing people isn’t for everyone, but I’m enjoying the role and looking forward to more practice and people management, business development work, and helping to steer the practice. With respect to billable work, I want to continue working on interesting cases, building client and counsel relationships, and developing expertise in our space.

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