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 Battery and Chemistry Expert, Dr. Seth Miller
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In this episode…
Our guest, Dr. Seth Miller is the President of Heron Scientific, Inc., a consulting firm specializing in battery technology. He’s a prolific inventor with over 90 patents, numerous academic publications, and a sought-after expert witness. Dr. Miller holds a PhD in organic chemistry from Caltech.
One of the most difficult moments for testifying expert witnesses is getting on the stand. Relax, your attorney can clean up any fumbles during cross-examination. Whether you miss-speak, or get tripped up by opposing counsel, Dr. Miller advises “trust in the redirect.”
Check out the entire episode for our discussion on rates, pre-trial caffeine, and travel expenses.
Introduction to Dr. Seth Miller
Speaker 1This episode is brought to you by Roundtable Group, the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at roundtablegroupcom. Welcome to Engaging Experts. I'm your host, noah Balmer, and today I'm excited to welcome Dr Seth Miller to the show Now. Dr Miller is the president of Heron Scientific Inc. A consulting firm specializing in battery technology. He's a prolific inventor with numerous patents in academic publications and is a sought-after expert witness. Dr Miller holds a PhD in physical organic chemistry from Caltech. Dr Miller, thank you so much for joining me here today on Engaging Experts. Noah, thank you for having me. Of course, let's jump into it. So thank you for having me. Of course, let's jump into it. So you are a scientist, you're an inventor, but how did you first become involved in expert witnessing?
Speaker 2Yeah, so the first case that I did I did when I was only 39 years old, which is super young super young for an expert. But I happen to have been expert in a topic of increasing importance to industry and we were learning how to make these tiny, tiny, microscopic devices, and my expertise was making sure that they didn't ever adhere to things, and I won't bore you with the details, but the fundamental issue was I did that starting in 2000, from about 2000 to 2005. And just because of where I happen to be in the world, I became one of the world's expert in this very niche field. Fast forward to 2010, I was an independent consultant and two companies had litigation on a patent in this very niche field, and so the lawyers needed to find someone. There were no gray hairs and eventually, through networking, they worked their way to me.
Speaker 2Now I was the older of the two experts. The other guy was about 35. But neither of us had any experience. Both of us were sort of thrown into this world that we didn't know about and had to find our way.
Speaker 1Tell me about finding your way. When you get those first calls and you've never done this before you don't know what to do. Do you feel that your attorney properly set you up and made you ready to go, or do you feel like I wish that he had told me X, y and Z and showed me the ropes a little bit better?
Speaker 2So, first off, my attorney was amazing. This was patent litigation and it was driven by a single associate who basically didn't sleep. I mean, he was on top of everything despite his lack of sleep and so he walked me through the process of writing an expert report. He explained what the issues were and I really did feel most of the time like I had a handle on things. I mean, obviously there's stuff you've never done before, like getting deposed, and there's always a certain degree of uncertainty around that.
Speaker 2But I was handled great of how any of this worked when it started, when, when I got the call, you know, I I knew that expert witnesses uh were were paid. Well, I had no idea how any of it worked. I didn't know what a retainer was. I didn't know, um what, how travel would be taken care of. None of those things made any sense to me, um, and I ended up getting advice, uh from a guy who I was working with as a consultant um, who was much more uh mercenary than I and helped me negotiate initial contract Um and um, and that was a huge help as well. So I feel very lucky.
Speaker 1Well, now you know, the obvious follow-up is I need you to share some of that advice to our newer expert witnesses. Uh, what is your advice regarding rates and travel?
Breaking into Expert Witnessing
Speaker 2Yeah, so I try to keep things simple. So you know, on rates, like I'm a consultant, I've been a consultant since 2008, when I was forcibly removed from my previous employment in the middle of the Great Recession and I survived, and so I'd been used to charging on an hourly basis for a while at that point, and now I've been doing it for 15 plus years. When I talk to folks who've never done consulting before, the first thing I tell them is you're going to charge roughly twice what your hourly rate would be as an employee, because that covers your health care and overhead and oh, by the way, they could let you go at any time. So there's some benefit that they're getting by getting the flexibility I mean. So, like the rule is generally, if you earn $100,000 a year, you charge a hundred dollars an hour as a consultant. Right, that's, that's the first. For expert witnessing. They the the expectation of the folks who bring you on is that you are going to be instantly available and they're going to be your top priority, and so in. In that regard, I would tell people that you charge for priority service the same way a machine shop would If you needed to have a part built or a sign printed or something and you want to skip the line. You pay for that. In general, at a place like a machine shop or a printer, you might pay twice as much in order to skip the line. That's the way you think about charging as an expert witness, and you know you charge twice as much as your normal hourly rate. And what the? What the buyer gets for that is your undivided attention whenever they need it and also as soon as they're done needing it, they get to push you back onto a shelf and not worry about you.
Speaker 2Right, sure, and look. Sometimes it sucks to be put onto a shelf when, when attorneys are negotiating to settle a case, they can't tell you. You have no idea what's going on. You're like people aren't responsive to my emails. What's happening? Is it something I said? And the answer is no, you've been put on the shelf. That's what you're being paid for. So, so right.
Speaker 2Bottom line is is there are market forces. If you are a particularly good expert in a particularly sought after field, of course you can set your own rates to whatever it needs to be. But, but thinking of yourself as a machine shop is not an awful way to start. But thinking of yourself as a machine shop is not an awful way to start. All right, so the other things you said were like terms and clauses For the most part. Like there are people who negotiate a different rate for being on the stand and not and I don't. I'm like you know. You're hiring me. No matter how much stress I'm under, I'm going to charge you the same. That's the way I work.
Speaker 2So I don't charge differently for deposition. I don't charge differently for time on the stand. There are little details that everybody wants to that. You should consider Travel. I will generally charge at halftime, right. I don't want to say that you can ship me off to South Korea and you're not going to pay for the flight. That doesn't seem right, but also going to be, if all goes well, sleeping on that flight, and that doesn't seem right. So charging at halftime represents a useful compromise.
Speaker 2And the one term that I've had to negotiate or that I put in front of folks now at the outset is if, if there's a trial, if you need me to be somewhere and the the testimony gets delayed, then I get paid a daily rate, right for sitting in a hotel in wherever it is. If it's in newark, fine if it's in times square, maybe better, but but I've had this happen enough. Juries, trials will move at the pace of jury trials move, and um and so um, and everybody like the first time this happened and I didn't have the term, everybody was understanding was like, yeah, yeah, we get it. So that's the only one that I really consider to be the learning that I've had, that I do differently now than I did when I started outset.
Speaker 1How exactly mechanically does travel work when you have a case that maybe you have to get on a plane and you have to get to hotels and all of that? Do you do all of that yourself? And do they kind of set limits on like, hey, we'll fly you, but you can't go first class? You know what? What are the sorts of typical constraints on travel?
Speaker 2Yeah, everybody's different and special right. So, for example, when I was sent to South Korea for a case in order to be able to work on site for the thing I need to work on site on, the good news is that the lawyers were like, yeah, no, we're doing business travel. And so, because that was what I was going to say, I'm like you're not going to ship me into South Korea and expect me to work the next day if I haven't had a place to lie down. And I I suck at sleeping on planes, um, but I suck a little bit less when I'm in business class. So for, for, uh, I, but I'm also not like a travel snob for domestic travel lifeline coach. If you need to fly, if I was flying from LA to New York a bunch, I might ask for something better. I don't think anybody really cares if you pay for the extra leg room and so that's all negotiable. I don't notice.
Speaker 1I open my laptop. I do work, this time on the off chance that it may go to trial, have it not? And then only get an hour of work or so? How do you handle the trend where a lot of cases are moving towards settlement?
Setting Rates and Terms
Speaker 2Yeah, so for the record for my numbers, I've been an expert in like 19 cases. I think I discounted a couple of ones that never actually started, just like you said. But I think I discounted a couple ones that never actually started, just like you said. But I think I've gone to. I've testified in front of a jury three times. I've testified in front of judges three or four times, I guess, three times for judges, and then an arbitration panel once, right? So you know, 40 ish percent of the things that I get brought in for end up going to something Right, and I have only requested a retainer once, and so for the most part, you don't call me, you don't call me whatever. Fine, this isn't like there's stress associated with wondering what the heck is going on, because I've gotten retained in cases and never called, and I'm like the one reason why I would suggest that it's a good idea to get some compensation is that I have learned we were talking before. I forget some of the things that I've learned. I can't work on a case for one counsel if I'm opposite to the same firm in a different case, so there is some cost to me to be retained but not used it, and so, yeah, this is something that I probably should consider doing. More um the um.
Speaker 2The one time where I was absolutely adamant about getting a retainer was when I got contacted by both sides of a case, of a patent case and um, and I look under the circumstances, I I feel like I handled this correctly, which is, I told each of them that the other side has contacted me and if somebody offered me something, this would be the rule.
Speaker 2And the rule was look, I can't have you. Now that you know this, now that I share this information, there's an incentive to just lock me up, to get me off of the table from the other person, right? And so let's set a retainer, minimum non-refundable retainer that says that this is larger than you would otherwise expect. Now, look, if I'm doing the work, this isn't like a signing bonus If it counts towards the hours that I do. I just want you to be somewhat discouraged from taking me off the table for the other person and jabbing your opponent through me. So there are reasons to charge a non-refundable retainer and now that I am saying it explicitly, I would probably recommend at least having a small non-refundable to compensate for the fact that there are conflicts that arise and you have to, and that is a cost that you have to bear.
Speaker 1Along those same lines. I've had expert witnesses tell me that certain attorneys will sometimes retain expert witnesses in hopes that just that name is enough to cause the other party to settle.
Speaker 2Is that something that's happened in your experience? Like, generally speaking, you can have esteemed professors who wrote the textbook on the topic and I have been opposite to such esteemed individuals and you know the fact that they wrote the textbook doesn't necessarily mean that they're going to be that great in testimony. It doesn't necessarily mean that they're going to pay attention. You that great in testimony. It doesn't necessarily mean that they're going to pay attention right, because I have seen also esteemed professors phone it in and, like you know. So, having said all of that, I haven't seen anybody try to do that. But I'm not an attorney, so I don't get to see the most fun parts of those negotiations where everybody is trying to intimidate and bluster the other right. I'm more on the facts side.
Speaker 1Let's talk case type and venue. So you're a scientist, you're on a million patents. Do you mainly testify in patents cases or do you work across? You know crime and torts and other things, or you know what's. What's a typical case for you?
Speaker 2The first. The first case that I did was a patent case at the ITC and absolutely bog standard. That's what you expect a PhD to be involved with. Second case I did was false advertising and and and I can say this, I mean this was public um, the the folks from uh arm and hammer cat litter were were suing the folks from fresh step cat litter for the television advertisements that they were running. That was maligning baking soda, and I got pulled into this. This did not mostly hinge on technology, but the judge was interested because there were specific technical claims that the Fresh Step advertisements were making, and so the judge called for a hearing on the technology and this surprised counsel on both sides and counsel scrambled to find a chemist who could plausibly articulate this on short notice for the judge and I was that chemist. Right, we talked before about how I do battery technology and right now my caseload and my consulting load is mostly batteries, but not entirely, and I have this weird and varied history outside as well, and this was definitely outside of batteries. Batteries and cat litter. Yeah Well, you know, the most fun is that for some part I don't remember exactly what.
Speaker 2Maybe it was the opposing expert testifying. I had to sit outside of the room, right. This was in the state of New York, whole thing looked like Perry Mason and I had never been inside of that kind of a courtroom before, and so I'm sitting on the bench and I can still picture this, where the I wasn't allowed to see this part of the proceeding but it was open to the general public, right. And so this group of attorneys goes in and then they come out like 15 minutes later and one of them starts to go. As soon as the door shuts she starts going meow, meow, meow, meow, meow, meow, meow.
Speaker 2It was. It was an amusing case. So back to your question. I've done false advertising and I've done work in contracts disputes. I've done misrepresentation in front of the SEC. I even did a case involving defamation where one scientist defamed another or was, I'm sorry, was accused of defaming another, and and I was asked for an opinion on the specifics of the technology involved there, the specifics of the claims for the defamation. So I have done more patent cases than other types of cases, but it has been something somewhat surprising to me where the courts need technical expertise.
Speaker 1Does that change your preparation at all? When you go into a new venue, do you have to familiarize yourself with a new set of laws or a different way of writing a report or the way that depositions go? How do you handle getting ready to go into a new venue or type of case?
Speaker 2That's a great question.
Speaker 2I would say that the lawyers are going to tell me the ground rules and generally have told me the ground rules.
Travel Mechanics and Case Settlement
Speaker 2I have had the experience of working with jury consultants who are very helpful, and if anybody has to go in front of a jury, I hope they get the opportunity to work with some good jury consultants and they'll tell you things like like face the jury speak slowly and clearly, maybe more slowly than I'm doing here, and you know these are minor things, but it is nice to think to yourself oh, I'm sitting in a box, the jury will be to my right. I should turn slightly to my right, but you know, you know I, the jury consultant in this case was like move your legs to the right and that will be a physical reminder that when you answer a question, just have your body turn that more naturally and you crane over to talk to the lawyer, but your natural response goes back to the jury. So there are tricks of the trade. Doing a Zoom case, a Zoom hearing, is different from going into Perry Mason court. The vibe is different and so you have to be adaptive.
Speaker 1Let's explore that a little bit. Tell me about Zoom hearings. Tell me about Zoom depositions.
Speaker 2So it is a little different. So first rule is look at the light on your camera, Like when I was taught for so. I did a Zoom ITC case during during the covet period. I did a zoom arbitration hearing during the covet period I haven't, I don't think I've done a zoom deposition.
Speaker 2Um, I have to. This is one of those cases where you know, in front of lawyers you'd be like, yeah, I'll have to go back and let you know if I have um. But the other two were far more memorable and and so there's a couple of things that are different. One one is obviously you know you spend are, make sure that your background is good and the sun's not going to shine in um in a way that's distracting, and and that your wife or children don't wander through. You know, be in a room by yourself where you can shut the door or otherwise keep everybody out. Um, again, that's just all hygiene. Um, from a. From the standpoint of um, of actually the way that you are going to answer and testify, you know, really, again, you don't get to make eye contact, you get to look directly into the green light. From the standpoint of how the dynamics work.
Speaker 2I thought that you know it feels like there are different dynamics and I'll tell you two stories. The first is for the patent case in front of an ITC that I did over Zoom. Opposing counsel is charismatic and my sense is that opposing counsel relies on that charisma to convey the many points and that charisma was reduced over Zoom. Right, you know you can't hold the room in the same way over Zoom that you can in person and I think that in that particular case that worked against opposing counsel and towards me. So that's one point. Second little story was you know you can get away with things on Zoom that you wouldn't otherwise.
Speaker 2And I did a court hearing, an arbitration hearing, on Zoom in front of a three-judge panel and everybody was remote and at the end of one period of questioning we could see one of the judges stand up and walk away and that judge was wearing a shirt and tie and jacket and pajama bottoms and that's fine, I personally don't care. I did laugh quietly but look, that was again. Especially during COVID. That was always the joke. Whatever that person needs to do in order to properly focus, I'm in favor of it was different than what would happen in a courtroom.
Speaker 1Do you have a preference? Do you prefer to be on Zoom, where you're kind of at home base and can have your cup of coffee and a kitty cat, or do you prefer to be in person so you can make those those grand gestures and connect more?
Speaker 2Yeah, so don't bring the kitty cat. Kitty cats all be controlled. So I mean, I think, I think I prefer to be in the court, um, I, I prefer to be able to to get the additional information you get from body language and eye contact. You know, the last time I testified, which was only a few weeks ago, you know, I really appreciated being able to see the jurors nod or not to something that I've said, and so, and if it looks like I've lost that person, then I want to be able to have the opportunity to restate it, to make things more clear, and you can see that better. We're still human beings, we still communicate through all of these other facial expressions and gestures and whatnot, and they're hard to make out on the screen.
Speaker 1You had mentioned jury consultants before. Is that something that you found valuable?
Speaker 2Yeah, absolutely, you know. I mean, look, you're going to get an hour of jury consultant training and, as with all training, you know 80% of it doesn't matter and 20% of you're like, oh well, that might, that might, be useful. And again, you know, in this particular example, those, the consultants who did the training for everybody who was going to testify, also sat in on on my practice testimony, right, and and so and on the the direct, not, not, not cross, but um, the um. You know that is. In that case I I got most of what I needed to out of the training and just the feedback from the, from the consultant, saying, yeah, no, that was good, like that.
Speaker 2That feels really good when you know you have somebody whose job it is to listen to experts give testimony, tell you, yeah, no, that was clear, I understood it, it made sense. Like I'm a PhD, I can't assume that the things that I say make sense. So you know, again, the alternative is that your lawyer is going to give you the feedback, but the counsel who's been working with you also has this deep knowledge of the case and shares that with you. So, having that, you know civilian, if you will come in hear what you're saying for the first time, give you the feedback can, I think, also be very helpful first time, give you the feedback can, I think, also be very helpful.
Speaker 1Let's talk about some of the more tense situations, your depositions and your cross-examinations, which you had alluded to. How do you keep yourself from getting tripped up and confused into saying something that you don't intend, for instance?
Speaker 2So every lawyer will tell you to speak slowly and only after thinking. So every lawyer will tell you to speak slowly and only after thinking. And they're right. And also, that's really hard, I will, you know. You get asked the question, you wait a beat, you start your response. You try to keep your response short so that you don't meander, but also you're a PhD and this thing needs explaining and it's super hard to explain this thing in a soundbite and so there's a natural tension.
Speaker 2Most important thing to do, and one of the things I feel like I do really well, is to listen carefully to the question and to the wording, the specific and on the wording. And I'm never shy about pushing back on the wording because I have again had the opportunity to write expert reports based on other people's deposition quotes and I go through and I do, you know, command F and search to find the words and see what they said. And I know how easy it would be to take my words out of context If I feel like, if it's nagging at me what I said. I'm not shy about saying hey, let me you know I was just thinking that that I didn't explain this fully, and let me make sure to get this on the record. And when you do that, the lawyer's antenna go up and they get very excited and they will spend an extra five minutes crossing you on that. So you should be very deliberate if you're going to do it. But it's an option that's available to you and it's an option. But it's an option that's available to you and it's an option. Of course, you have to remember that your counsel is there and is listening also, and your counsel will rehabilitate you if necessary.
Speaker 2It's always better to figure it out beforehand, it's always better to be aware of it yourself. But you always have backup at trial. You're not allowed to push back on the wording with the kind of freedom that you have at deposition. You need to answer the question generally with a yes or no or an. I can't answer that with a yes or no. And if you're going to use the, I can't answer that with a yes or no. And if you're going to use the, I can't answer that with a yes or no. You better darn well have a good reason why. So you don't seem argumentative to the judge or to the jury.
Speaker 1Um, but sometimes you have to right, right, and you always have your your attorney to help clean up anything.
Diverse Case Types and Venues
Speaker 2On redirect yeah, and you know the look you're gonna. Again, I as a scientist, I will get asked technical hypotheticals. Well, what if this? And under those cases it's fine for me to say you know, hey, I don't understand. You just said what if the situation was X? But in order for it to be X, these other three things have to be true. Are those also true? Can you confirm Right, if you do that, again, if you're technical, hypothetical is going to blow up pretty quick because the opposing counsel maybe hasn't gone down those three other levels of technical assumptions that you're able to. So it's totally fair to do that, but again, it shouldn't be overdone.
Speaker 1When it comes to explaining some of these more technical aspects, do you like to use demonstratives, charts, graphs, models? You know VR simulations. Is there something that you like to use that helps make the jury or whoever the finder of fact is more aware of the kind of technical aspects of a case?
Speaker 2Oh well, so a few things there. First off, if I'm going to a jury on a patent, oh well, so a few things there. First off, if I'm going to a jury on a patent case, that's not a sophisticated audience, that's a jury of our peers, and they have to learn some deep, deep detail of chemistry or electrical engineering or something that I'm going to be teaching them, and and so demonstratives are helpful, and so demonstratives are helpful Generally should only be used. They're going to draw everybody's attention and in that sense they're going to suck the attention out of the room. So you've got to be careful and not overdo this.
Speaker 2Powerpoint slides are fine Everybody's used to looking at PowerPoint slides but if I'm going to hold up something, then everybody is going to strain to pay attention to it, and if I do it a second time or a third time, they're just going to become overwhelmed. So I would recommend being parsimonious. Parsimonious, but a look, a good monstrative will be better than a PowerPoint slide, and a PowerPoint slide is easier to follow than a verbal explanation of a complex process, for example. So definitely take advantage of it when you can Just recognize the attention of the audience, whether it's a judge or a jury is going to have to be metered Absolutely, and how about using them in expert witness reports?
Speaker 2If I have a battery cell that I'm analyzing, there are photos like crazy. I've done photos, I've done movies Right. So, for example, I needed to do what's called a fancy chest x-ray. They look, they'll look at your body from a whole bunch of different angles and take a whole bunch of different x-rays, and you can do that with, for example, a battery cell, and so when I want to illustrate the insides of that cell, you have to look at a bunch of two-dimensional cross-sections, and that's sometimes hard. And so, yes, creating a video using that information and supplying that video to the judge and eventually to the jury, is very important, and so I've offered those kinds of demonstrative that are created by media. I've never had the chance, and we're part of the expert report because they need to be part of the expert report in order to show up later in trial.
Speaker 1Sure, absolutely so. Some experts like to have a cup of coffee, some experts like a big breakfast and some experts like none. What is your pre-trial or pre-deposition routine?
Speaker 2Yeah, so heavy metal music and a can of Coke.
Speaker 2I mean, I'm exaggerating a little bit, but, um, my, my first rule is that, look, food, food is the enemy at some level. For me personally, um, for me personally, um, I I think better on an empty stomach up to a point, and I've spoken, so I know, for example, that after lunch I and a lot of other people will get a little sleepy, um, and I have asked uh council whether they'll take advantage in a deposition and and save the really complex questions for like 1, 30 PM, and the answer was, of course we do. They know this. So you know, on deposition, um, I'll have at lunch, I'll have half a sandwich, right, and I'll have a very light breakfast.
Speaker 2And just because I want the blood going to my brain and not to my gut, and I will, so I'll do smaller meals. So I actually have a ritual Like this is important to me because, again, especially in a deposition, I might be on the stand for seven or eight hours, or I have clock time and that's a long day, and so figuring out how to meter in calories without bloating myself is actually important. And so I'm not kidding about the Coke I personally find my biology takes well to empty calories. I know that other people might get too fidgety and do it, so everybody's got to figure that out for themselves.
Speaker 1Shifting gears. Let's talk a little bit about the interface, the interaction between your regular work and your expert witnessing work. What about your regular work do you bring to expert witnessing and the reverse of that. What about expert witnessing helps improve your day-to-day consulting work.
Virtual vs In-Person Testimony
Speaker 2So the first part of the question is like the simple answer is the obvious one. It's like I'm an expert, um, and I bring in the the you know I've been doing in the case of batteries. I've been doing what's called electrochemistry, which is the, the scientific term, that's that batteries are within on that, the field where batteries are within, I've been doing that since 2005. And I bring in a set of patents to a patent case, which not only helps establish my expertise but also, you know, gives me a sense of. I've got a long time to think about what patents are for right, like as an inventor. Again, I have these 94 patents and and whenever I get hired as a consultant, you know I will very often not always, but but very often, you know end up coming up with an idea that I ended up helping my clients with and we might patent it and so, and so I've thought a lot about how patents are written and what the details are, and I'll give you one example about how this helps inform what I'm doing as an expert and how working as an expert helps make me better as a consultant in general.
Speaker 2So there was one case. You know what let me back up a second. When you're writing a patent, generally, you write an example, and so I have an invention. I say that the invention does this and there's a set of claims that get drawn from my description and the claims describe the invention. Description and the claims describe the invention.
Speaker 2But you need an example, and the reason why you need an example can sometimes not be obvious to an inventor. Like there's this, all of this abstraction that goes on from the thing that I did has to be abstracted into these claims, and the lawyer does that, and that's fine. But you know, there was a case I was working on where the patent didn't explain in detail exactly how a measurement was made. Different ways to make this measurement and the measurement values that you get were systematically biased based on the way that you did the measurement, and the claim described a range of values that were protected by the patent, and so the question is, if you use technique A and get a different answer than if you use technique B, what is the range really?
Speaker 1Right.
Speaker 2This is not philosophy. This is a good question, right. And so again, as an expert, I can come in and say I know what these three techniques are. I know that this problem exists in the first place and we should prepare to answer this question Right. And so that's what I'm bringing, as an expert, into the case Now, from my experience in the patent world, like in litigation, I now bring this back to the conversations that I have with my clients, and there are nuts and bolts, questions that I can now answer better than anybody explained them to me.
Speaker 2But also there's this experience that you know what the purpose of a patent is to be litigated, and nobody takes a license to your technology based on your kind words, and nobody will stay out of a market based on an idea that is not declared clearly and in a way that's protectable in a patent Right. And it make it makes me think about the world of litigation differently. You know, I I've talked to it, to business people and inventors about, about patent trolls, and that's a term to describe folks who are who do not practice a patent, but rather buy it from somebody in order to litigate it of what makes a patent valuable, how that value is created, when, and therefore when it's appropriate to go for patents, and what the morality of the whole system is. I have these weirdly nuanced opinions on this now that I didn't used to have before I started participating. But when you see the details of how something works, you start to think about it a little bit more deeply and you're like oh yeah, no, I get why it's this way now.
Speaker 1Are there changes that you would make to the system if you had your druthers?
Speaker 2Oh man, I'm not smart enough to know how to do this better. I'll tell you. I'm going to think about how to effectively anonymize this story. I'm going to change something a little bit, but I'm going to just say let's imagine for a moment that you have a startup that does make the technology right and they work at it for a while, but they ultimately fail. Right Now they were able to raise money in part based on having their IP as collateral. Having patents that they got was a collateral to the investor and the startup goes under and the investor is left with whatever pieces of equipment are in the lab and this intellectual property. Now that investor may then go ahead and transact on this further down the line and it ends up going to a, a quote-unquote, non-practicing entity or a patent troll.
Speaker 2And I look at that and look at this and I hear people will criticize patent trolls. But I'll say to myself what specific part of this story was morally wrong, like you seem to be coming up with this answer that you're making a moral judgment about the system. But it's not right to make a moral judgment about the system. But it's not right to make a moral judgment about the system without being able to put your finger on what's wrong, and I listened to that case. I want the startup to raise money. I want them to go ahead and try to build these things.
Speaker 2There's all sorts of side Reality ends up being made up of a whole bunch of side cases. Right, that's our world, like there's no normal. And so certainly what, having been involved in these patent cases and in the misrepresentation and in the false advertising case, all of these things help me appreciate the complexity that goes into it. And so you know, yeah, I might change some stuff about software patents if I could, but for the most part, I feel like we've come pretty close to doing this right.
Speaker 1Let's back up and talk about a few just general things Between an expert witness and an attorney what makes that relationship good? How do you get off on the right foot, how do you maintain that relationship and, frankly, how do you do it in such a way that they might call you back should they need another expert in your niche?
Speaker 2again. Yeah, so I've been lucky enough to have gotten some good relationships with attorneys who have called me back, despite the narrowness of the world of chemistry and the things that I do. The first thing is to not be a jerk. A jerk, you know this is table stakes, but also important Like I can elaborate this further. There are lots of ways where people can be a jerk. I'm not going to go into the list. You can ask Jack's UPT what you should not do to not be a jerk and I'm sure it'll be helpful.
Handling Depositions and Cross-Examination
Speaker 2I have a dear friend who passed away a few months ago who used to say there are. He had three rules for life, and it was number one, to show up. Number two, to pay attention. And number three, to tell the truth. And in the context of expert witnessing right. Context of expert witnessing right, showing up means, like I said before, you've been retained to answer questions quickly and to put aside all of the other stuff that you're doing and be responsive to what the lawyer needs, because they have a deadline and they have a judge who is not going to accept excuses, and so are you willing to show up? In that way, not everybody is right, and that to an astonishing degree. Honestly, that is differentiating. If they give you a piece of data on Thursday and you return with an exhaustive analysis on their desk Monday morning, they are incredibly happy, and if they didn't have to ask, they remember, right? Okay, that's showing up. Number two is paying attention, and this comes down to this these questions about being deposed right, are you listening to the question that is being asked? Are you aware that the lawyers have put some trickery, perhaps, into that question?
Speaker 2And, um, I, I once had, and this was the first case I was on. I didn't know that this stuff happened. I was on the stand and the opposing counsel said have you seen this document before? And it looked like a document that I had seen before. But it turns out it was not a document that I had seen before. And I said yes, and the counsel was like in fact, you haven't.
Speaker 2And then counsel tried to make a big deal out of this and it's like dude, are you kidding? Like is that we're doing this show? I don't think that the judge was terribly thrilled with that and I don't think that it helped counsel. But I was like oh, this is a thing that's happening Right Now. I know, pay attention. Right, take that breath, all of that stuff matters and you know. And again, coming back circling back on showing up. Paying attention means you know, contributing and recognizing details and being able to feed that information back to counsel so that they understand that information exists that maybe they should be aware of. Right, again, you don't want to submerge them with with feedback, but but. But showing that you're paying attention, I think, is appreciated.
Speaker 1Absolutely.
Speaker 2And the last bit was tell the truth, which is legally required, so I shouldn't have to say it. But look, this is. I think that as humans, we want to please each other, we want to make each other happy, and when you have to tell counsel bad news about I don't know the claim interpretation in my case that they've taken, um, you, there's some hesitancy to say, hey, you, you wanted the world to look like this and it doesn't. And I'm going to be the bearer of bad news and I have uniformly found counsel to be appreciative of that, even when the bad news is really bad news for them. They really do want to know they. This is one of the beauties of the legal system is that it is antagonistic and stuff's going to come out and like as a sidebar.
Speaker 2One of the absolute joys of being an expert witness is that I get to do a really exhaustive job, like I work with startups. Startups don't have the money for an exhaustive job, right, people want the minimum and they're correct in a lot of cases to want the good enough answer, right. But in litigation, because we have this tension between the two sides, it is really important that you do an exhaustive job. It's really important that you find out the facts and counsel is willing to give you the time sides. It is really important that you do an exhaustive job. It's really important that you find out the facts and council is willing to give you the time to do it, and that can be weirdly gratifying in a world where you're never given enough leash to go ahead and actually become comfortable with your answer. Council really wants you to become comfortable with your answers and they want you to reduce the risks associated with those answers as much as you can. Whereas other areas of work not so much, this would.
Speaker 2The job is hopefully fun, like I would like to think, like I. I you get yelled at right I mean sometimes a lot, like some. Sometimes opposing counsels are polite, sometimes they're less polite, and so there is there's stress, you're put on the stand and there's a lot of money relying on you being able to answer questions and you don't know what those questions are and and all that's hard. But also, being an expert is an intellectual challenge. It's an emotional challenge. Being able to do a good job is incredibly rewarding, and so you know there are people who shouldn't be doing it, for the negatives vastly outweigh the positives, and that's fine. For me, it's actually kind of fun. I don't mind being yelled at, and I don't mind the pressure and the tension, and I appreciate the depth with which I get to explore ideas, and so, for folks who are like that as well, I recommend giving it a go if you get the chance.
Speaker 1Dr Miller, thank you so much for joining me here today. Noah, thank you for having me, and thank you to our listeners for joining us for another episode of Engaging Experts Cheers.
Speaker 2Thank you for listening to our podcast Engaging Experts. Our show notes are available on our website roundtablegroupcom.