Engaging Experts
After 25 years helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On this podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Engaging Experts
Engaging with Computer Science Expert, Dr. Jeffrey Miller
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In this episode…
Our guest, Dr. Jeffrey Miller, is the Dean of Engineering and Computational Sciences at Southern Utah University. He’s a sought-after expert witness with expertise in point-of-sale systems, driverless vehicles, trade secrets, and software. Dr. Miller holds a PhD in Computer Science from the University of Southern California.
According to Dr. Miller, initial phone calls will not always reveal the intricacies of the case. Beyond competence in your field, the hiring attorney is considering your demeanor, whether you will mesh as a team, and whether your opinion will be useful in obtaining a favorable judgment for the client. A confident, professional presentation is as important as subject-matter expertise.
Check out the full episode for our discussion on assistants to experts, Zoom demeanor, and being unafraid to say, “I don’t know.”
Introduction to Dr. Jeffrey Miller
Speaker 1This episode is brought to you by Roundtable Group the experts on experts. We've been connecting attorneys with experts for over 25 years. Find out more at roundtablegroupcom.
Speaker 2Welcome to Discussions at the Roundtable. I'm your host, noah Balmer, and today I'm excited to welcome Dr Jeffrey Miller to the show Now. Dr Miller is the Dean of Engineering and Computational Sciences at Southern Utah University. He's a sought-after expert witness with considerable experience in point-of-sale systems, driverless vehicles, trade secrets and software in general. Dr Miller holds a PhD in computer science from USC. Dr Miller, thank you so much for joining me here today at the Roundtable.
Speaker 2Yes, thank you for having me. Of course, let's jump into it. You've been in academia for what? Over 15 years now, it looks like. How did you first become involved in expert witnessing?
Speaker 3My PhD advisor. I did some expert witness work and he pulled me in to assist with him on two cases when I was his student and I absolutely loved the work that I was doing. Obviously it was compensated very well. And I asked him as I was helping him with those. I said what does it take to be an expert witness? And his response to me, very candidly, was more gray hair than you currently have, and so you kind of hit the ground running.
Speaker 2Did you enjoy your first experience? Did you feel prepared for the initial phone calls with the attorney and for depositions and anything like that, or were you out there in the water a little bit?
Speaker 3No, the first two cases where I assisted my PhD advisor, I wasn't involved in any of the phone calls with the attorneys, I was just assisting him, I see. And then it wasn't until probably about 10 years after that when I was retained on a case where I was the expert witness, and that was where I was thrown into the deep end of the pool.
Speaker 2Did you find that it was useful to have already assisted on some cases before that it?
Beginning an Expert Witness Career
Speaker 3was useful to have assisted because I kind of knew what to expect. So, even though I hadn't been as involved as I was when I was retained as the primary expert, I at least had an understanding of answering questions that the attorneys had provided being able to go and find things out, understanding how the attorneys assist as well in guiding what you're doing?
Speaker 2Is that something that you've paid forward? Do you now retain other people to help assist you during your engagements?
Speaker 3There have been a few cases where I've been retained, that I have utilized some other people, and there's some cases where I work on a team of experts as well. So it just depends on the individual case of whether there's additional people helping or not.
Speaker 2Tell me about working on a team. Do you jointly prepare expert witness reports or do you each kind of have your own lane and you don't interact very much? How does that work?
Speaker 3It's always based on the case, but from from what I've seen in the cases I've been on with teams is it's still my expert report. Uh, but I just have other people who can help to gather information. But ultimately all the opinions that are expressed have to be mine, and they have. I have to be able to uh defend them. Uh and uh so it, and so it's a joint effort in preparing the reports, but ultimately it's still an individual who's going to be deposed.
Speaker 2Sure, of course. I meant more in terms of when you are working on a trial team with other experts. In other words, there might be a finance expert, there might be an engineering expert, there might be you know different types of experts on a case. In those sorts of situations, is it interactive or does everything kind of pass through the attorney?
Speaker 3Well, the attorney is almost assuredly always going to be in any communication that happens between experts, so that there's still privilege that's going to exist between experts, so that there's still privilege that's going to exist and how much I interact with the other experts is really a call for the attorneys.
Speaker 2Absolutely. Let's talk about your profession. So you are in computer science. Have you worked with AI as it pertains to expert witnesses at all, either in terms of it being useful for helping draft or correct expert witness reports, or even as a topic of cases?
Working with AI and Legal Teams
Speaker 3I'm seeing some cases that will talk about AI, with one of my areas of expertise being driverless vehicles. There is a lot of work with AI and machine learning that's happening in those fields. However, a lot of the cases on which I've been retained have been patent litigation cases, and those usually are not for patents that were filed recently, but perhaps filed 10 to 15 years ago. So I haven't seen a huge influx of cases dealing with AI, but there's a spattering here and there. I have not worked with preparing expert reports using AI, and it's not something that I'm planning to do either. I think that the reports need to be original work and they shouldn't be generated by AI. That's my personal opinion.
Speaker 2When you were first getting started, did you have somebody kind of show you the ropes? In other words, what is the process like? You're a brand new expert witness. You're brought in in your case to assist, but did somebody give you kind of the rundown on what the process will be, and is that something that's beneficial to experts in general?
Speaker 3I think that would be hugely beneficial, and I did not get that. When I was assisting on the cases, I didn't have an understanding of the entire case. I was given specific tasks and then asked to come back a week or two weeks later and we'd discuss more and then I'd get another task. The first case that I was retained on as the primary expert really was trial by fire. Fortunately, it was a large case and there were a number of attorneys that were working on the case, and so I had close to a dozen attorneys that I was working with in different capacities, so I was able to ask questions of each and hopefully not overwhelm anyone individually by asking one person a lot of different questions.
Speaker 2Is it important for expert witnesses to take kind of a proactive approach and make sure that they are asking the questions rather than just assuming that the attorneys will inculcate them with all the knowledge that they need?
Speaker 3I have found that that is extremely important Just the legal section of an expert report that says this is my understanding of copyright, trade secrets, patents and so on. Just having that is so important to refer back to, because the attorney on the other side wants to ensure that the opinions that you've reached align with what the law says. And if you don't understand what the law says, then they start to question whether those are really your opinions or are those the opinions of the attorney that you're working with.
Speaker 2How do you make sure that you remain, as an expert witness, completely neutral? Because, as you know, expert witness duty is to neutrality and an attorney is, you know their duty is obviously to the client. So is there any push and pull there where you have attorneys who really want your answer to be A, but your answer is really B?
Speaker 3I think that that may be the case. I have been very fortunate with every attorney that they say these are your opinions and you have to make sure that you you know what you're saying, even if it's not what's in the best interest of the client, that this is, this is truly your opinion and I've been able to express that. And usually what happens if I were to talk to the attorneys because this isn't necessarily something that would come out in a deposition the attorneys would know what my opinions are prior to the report even being submitted, and then it may help them to focus their case based on what I'm saying, as you said, as a neutral expert, even being retained by a client, but as a neutral expert, because then the expert on the other side of the case is not going to have anything to rebut.
Speaker 2Right. Is that an important part of the vetting process? That the attorney makes sure not only that you are, in fact, an expert in your field, but also that your opinion is going to align with the needs of their client?
Speaker 3That's a really good question, One that I've thought about a lot, but at the point that you get retained, you haven't done a thorough review of everything that has already happened in the case. It's usually after one or two maybe 30 minute to one hour meetings with the attorneys, and so I don't know that they really have a clear understanding of what the opinions are going to be. What I think they get an understanding of, though, is my demeanor how I would handle a deposition or a trial, and that I'm competent in the field, hopefully to be considered an expert in whatever the area is of that case.
Speaker 2Obviously, during those phone calls it is kind of a two-way vetting process. You're vetting them as much as they're vetting you. You don't have to accept an engagement. Do you tend to turn down any significant number of engagements and if so, what are some of the reasons that you turn them down?
Speaker 3I have turned down a few engagements and primarily because of the attorneys that, as you said, I have to work with that person too and I have to believe in them and I have our personalities have to mesh. I'm going to be spending a good amount of time working with them and I also want to make sure that I'm comfortable that they are competent in the field. Now I realize they're not the experts, but that they need to have a little bit of background in whatever the area is, or that they're at least willing to get up to speed At the experts, but that they need to have a little bit of background in whatever the area is, or that they're at least willing to get up to speed. At the point they're trying to retain me, they know a lot more about the case than I do, probably will throughout the entire engagement.
Speaker 2What are some of those factors? What are the things that lead to a positive relationship between the expert and the attorney, besides mere competence?
Speaker 3I think, just like when you're hiring somebody to work with which I think is the most important asset that you have in any organization you have to make sure that both sides get along, that the personalities mesh, that you're able to talk, that one person is not dominating over the other, one person isn't just completely driving the conversation saying here's what we need to have happen.
Speaker 3That's not an expert witness engagement it's. I need to review all of the information, then I'm going to draw opinions from that, of course, through consultation and meetings with the attorneys and possibly many other people who are part of the case.
Speaker 2Speaking of meetings with attorneys, have you been in virtual meetings as part of your expert witnessing work, Almost exclusively? I assume that that would be the answer, but I, you know I want to. I want to hear about that. You've been doing this for a while, so is that something that's changed throughout the course of your expert witnessing career?
Speaker 3No, it's the meetings with the attorneys, because they're so frequent and the attorneys are located all around the country. Um, I ha. I mean, the majority of the cases on which I've been retained are federal cases, so the cases could be filed anywhere in the country and the attorneys could be located anywhere in the country, and so I uh, most of the meetings are all virtual. The ones that are in person typically are going to be as you're getting closer to deposition or trial.
Speaker 3So the preps because the attorney is going to be, in the same location as you and then you meet in person. You know it's always fun to meet the three-dimensional version of someone you've been talking with for six months or more.
Virtual Depositions and Court Appearances
Speaker 2Of course. Is there an impact to virtual meetings? Does demeanor change? Does the way that you kind of interact and connect? Is it different? Not only with your attorney, but I know that there's some Zoom court stuff that goes on. I've heard of virtual depositions happening. So do you have to handle yourself or are there any additional considerations when meeting virtually?
Speaker 3Uh yeah, as far as just meeting with the attorneys virtually, I don't know that there's too much of a difference. One of the things that I've seen with virtual meetings, especially with large numbers of people, is that not everyone is focused in the meeting. Meetings with attorneys, uh, it's not typically a very large meeting. But second of all is what's happening in the meeting is very important. It's not just disseminating information, as you may have in a corporate meeting, but there's a lot of interaction that is happening, and so I think that the meetings in person would be very similar, where you're focused on the conversation, what's going on, looking at things and then discussing them.
Speaker 3The virtual depositions, on the other hand, because I have done a number of virtual depositions as well as in-person depositions. On the other hand, because I have done a number of virtual depositions as well as in-person depositions, there is a little bit different demeanor that has to take place there, because there's a slight delay that you have with video and you have to make sure that your attorney has an opportunity to make objections, to interject if there's something that he needs to say, such as you know, this is a question that is infringing on attorney-client privilege. Don't answer that If you've started talking and you miss that, then that becomes part of the record. So it's important that the timing is a little delayed to give the attorney the opportunity to make objections.
Speaker 2Yeah, it's my understanding too that some courtrooms don't necessarily have the fastest and best internet connections and cameras either, so that delay can definitely be significant. Let's talk a little bit about your preparation methods. When you're going into a deposition, or if you're preparing for cross-examination, what are the sorts of things that work for you?
Speaker 3I think that making sure that you've blocked off time close to the deposition or the time that you're going to be testifying, that what you're being questioned on is a report that may have been submitted months prior to that, and it's important that you take time to review the report and what your opinions were as it gets closer, as well as all of the other documentation that you may have referred to or relied on in forming those opinions.
Speaker 2When it comes to actual cross-examination, are there strategies that you find that the other side will use sometimes to trip you up or throw you off your game, and do you have methods that can help counter some of that?
Speaker 3Yeah.
Speaker 3So, especially with depositions. With trial testimony it's a little different because you're on the stand for a certain amount of time as long as the questions are being asked. It's a little different. You're not typically going to be on the stand for seven straight hours in a trial, whereas with a deposition it's seven full hours of questioning. That's typically allotted and there's.
Navigating Different Legal Venues
Speaker 3You know, attorneys have strategies that obviously the reason they have the strategies is because they've worked for them at some point or they've worked in general, such as asking questions early in the morning but then also asking them again at four o'clock in the afternoon and then seeing if your answer is the same Right after lunch.
Speaker 3A lot of people have a little bit of a low and so trying to hit them at that point with some of the more challenging questions or the ones that they're trying to get specific sound bites from. So it's important that you're on your game the entire time because you don't know when that's going to come up. Some attorneys will kind of follow your report and go through section by section or paragraph by paragraph and ask questions on that. Other attorneys, though, they like to jump around a lot and you know, based on how you think, that may or may not be a good strategy, but as they're jumping around, it's not giving you that cohesive way of following along, knowing. Ok, the next section is going to be on this, and so it's a little challenging.
Speaker 2One of the things you had mentioned before is that you do a lot of work in the federal venue. What other venues have you worked in and are there differences when you work in different venues that expert witnesses should be aware about and maybe should question their attorneys about when going into a new or unfamiliar venue?
Speaker 3Yeah, I don't think that a lot of the specifics of what I do as an expert changes based on the venue, because I'm still looking at material that I've been provided with, requesting additional material using my own sources and then drawing opinions, and I think that's the same. I haven't seen a huge difference in that across the different venues. However, the what the format of a report looks like or is it a declaration that's being submitted or does it go in, as you know, the formatting right?
Speaker 3Is the formatting, just me typing free form, or is it numbered, you know, with each paragraph getting its own unique number, and this is where the attorneys really fit in as well. And the different venues IPRs, pgrs for patent litigation, the federal, you know, district court, itc, arbitration. I've been in some university cases as well, where it's been local to a university that has then progressed perhaps to, you know, a state court, but so there's different rules for each one of them as well, and you know it's funny. Oh, I've also been in an administrative court, and so it's interesting to see when you know I'm talking to someone and they say, well, the disclosures on the experts on the other side have not happened yet. I say, but the trial is like two months away. How do we not know who their expert is or what they're going to be saying? Well, that's this venue, others it's months or years in advance?
Speaker 2Absolutely, do you find that attorneys usually are pretty good about making sure that you're prepared for those eventualities?
Speaker 3I haven't had any issue with that. Obviously, as you said, the attorney is working for a client and so ultimately, they're trying to win for their client. So the more that they can prepare me, the better job it's going to be doing for their own client.
Speaker 2You mentioned arbitration. Does alternative dispute resolution present any additional considerations for expert witnesses or is it pretty much the same as getting deposed in court or going to court getting deposed?
Speaker 3in court or going to court Again. I haven't noticed a huge difference on that, the arbitration case I've been on the panel as opposed to a single judge, so now you have three people who are hearing the case as opposed to one. So I mean, I guess, that's a little different, because then you could possibly have three different people with authority who may ask questions as well.
Speaker 2Let's talk a little bit about billing. Do you have any specific terms that you like to have in your contracts? Do you like to take a retainer? Are there any lessons that you've learned about getting paid that would be helpful to newer expert witnesses.
Speaker 3There has only been one case on which I've been retained that I did not receive payment, and it was a very small case a few hours and then it settled, so it wasn't a huge investment of time. For every other case on which I've been retained, I haven't had any trouble getting paid. Whether it's in a timely fashion or not is a different story, but I have been paid.
Speaker 2With a lot of cases moving to settlement. Do you like to make sure that you get some of that money up front?
Speaker 3What I usually do for that is talk with the attorneys and talk with if I'm being placed through a placement company is asking what their opinion is on that. I have been retained on cases where I have received a retainer, and then on a number of cases, though, especially with larger if it's a larger law firm, for example, or a larger company, then I haven't taken a retainer.
Expert Witness Best Practices and Advice
Speaker 2Have there been any cases that have kind of changed the way fundamentally that you go about expert witnessing or in some way informed the way that you go about expert witnessing and obviously you know you can't always divulge specifics to the parties but in general have there. Have there been those sorts of cases that you've worked on?
Speaker 3As you get into doing your job, you form your own opinions, not just the legal opinions, of course, that are going into the report, but also just looking at all everything that's in front of you. And it's hard to not put yourself into that judge position. Yeah, if I was the judge, what would I say? And I think that that's a dangerous path to go down because you're not and, as an expert also, I don't know all the details of the case. I know what's been provided to me, I know what I've looked up on my own, the research that I've done, but I'm just the wide receiver in the game. I'm not the quarterback. That's the attorneys who know everything. Right, I think that's important to stay in your lane also and understand that.
Speaker 2That's interesting and you know I have heard from other experts that, yeah, you know, I only have my little part of the case. I don't know the entire, the totality of the circumstances. One, because they would have to pay me to read everything. That would not be really important to me. But when you said you occasionally have to do some outside research, that's interesting to me. What sorts of research? What sorts of things do you look for sometimes that are not provided to you directly by the attorney?
Speaker 3Usually to help justify something. So maybe I'm referring to a textbook to say, well, the best practice in this field says and then you cite something from a well-known publication. An expert, I can say but to have this peer-reviewed publication that has been agreed upon by so many people and referenced X number of times, it draws even more credibility. And it also shows for me that I'm not only relying on what I think, I'm relying on things that are well-known in the field.
Speaker 2Before we wrap up, do you have any last advice that you'd like to give to expert witnesses out there?
Speaker 3Yeah, I think what's important is, even though you're an expert and you've been determined, you know a quote unquote expert, there is always so much that you don't know, and this is legally, of course. It's very important to ask questions and not feel as if, well, I should know this. I can just look this up on my own, because a lot of the law is very uh is interpreted, and it's important to make sure that you and the and the attorney are on the same page with how a specific law, for example, is being interpreted.
Speaker 3I think that's really important. And then also, even though you know one of the areas, you said at the beginning of this call that you know I'm an expert in general software. Well, obviously, there's things about software that not every you can't know everything about everything, and it's okay that you don't. What you need to make sure you know is what you've put into your reports, though, and you have the opportunity, before you write the report, to look these things up and to say, yes, this is what my opinion is, and then you can defend that, but there's nothing wrong also with saying that's outside the scope of my report. I don't have an opinion on that, that's okay to say Sage advice.
Speaker 2Dr Miller, thank you so much for joining me here today at the Roundtable. Thank you, and thank you to our listeners for joining me for another discussion at the Roundtable Cheers Thank you for listening to our podcast Discussions at Roundtable.
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