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 Bioengineering Expert, Dr. Chris Daft
In this episode…
Our guest, Dr. Chris Daft is Dr. Daft is an award-winning physicist and engineer with expertise in medical imaging, semiconductors, signal processing, and more. He is a published author and holds over 15 patents. Dr. Daft holds a PhD in Materials Science from Oxford University.
Engaging parties who try and negotiate rates are a red flag, according to Dr. Daft. He believes that budgetary constraints can get in the way of thoroughly focusing on the case, and effectively completing your engagement, which is unfair to the end client, and can affect your reputation.
Check out the entire episode for our discussion on AI’s role in expert witnessing, working before administrative boards in patent disputes, and working remotely.
This 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 Chris Daft to the show. Dr Daft is an award-winning physicist and engineer with expertise in medical imaging, semiconductors, signal processing and a whole lot more. He is a published author and holds numerous patents I think around 20. Dr Daft holds a PhD in material science from Oxford. Dr Daft, thank you so much for joining me here today on Engaging Experts. It's a pleasure to be here, noam. All right, let's jump into it. So you have a decades-long career in material science. How did you first become involved in expert witnessing?
Speaker 2:I had worked initially teaching at the University of Illinois at Urbana-Champaign, and then I went into industry and so I worked for General Electric and Siemens, and I also got bitten by the Silicon Valley bug and therefore worked for a number of startups, and I was actually looking for something to balance the meteoric ups and downs of the startup world, which I enjoyed a great deal. But in life, as an investing, there is value in diversification.
Speaker 1:Of course. So were you actively seeking expert witness engagements, or did one just show up out of the blue?
Speaker 2:It was very much out of the blue. I received some junk mail from an outfit that would do courses for experts. I was about to put it in the garbage but for some reason I passed it to my wife and she looked at it, read it and said you should do this course. So I looked at it again and after a bit decided I would, and that was how I learned that there was a thing called expert witnessing.
Speaker 1:So you weren't familiar with expert witness gigs at all. That was a completely new thing for you. So during your first phone call, what were the sorts of questions that you were asked? And going back, now that you've had some experience doing this, is there anything that you've learned in the interim that you would like to tell your first time self Boy? I wish I had asked a few more questions.
Speaker 2:I think in getting a call from an attorney, I'm a bit more organized than I initially was. I try to listen and be likable, but also get some questions in, such as how did you find me? And ask about the names of the parties, because that's a rather large red flag, and also whether there are budget constraints, because I don't want to be in a situation where the budget is such that I can't do the best job that I possibly can. That's always my goal. That I possibly can, that's always my goal, and if there is not time or if there is not a budget, this may be a good case to pass on.
Speaker 1:Let's talk about those red flags a little bit. When you talk about a rush job, tell me what that means to you.
Speaker 2:Something like our expert just dropped out and we need a report in a couple of weeks, but there's an enormous amount of case material to go through. Would you be willing to take that? Usually, that is a good indication that I shouldn't be looking at that case.
Speaker 1:Have you found yourself in situations where you really where you've accepted the engagement but then realized, oh boy, this is way more work than I realized it was going to be, and they kind of overload you with initial materials or either requires a little bit more research than you were expecting. How do you deal with those situations?
Speaker 2:The expert witness business does require periods of working extremely hard is in a real bind. I feel like it's my responsibility to do everything I can to meet the deadlines, which are very often not set by the council at all, so that I'm very flexible about. But if there's a situation in which it looks like things are disorganized or someone an expert has left the case, those are situations where I feel like it's being almost set up to have a desperate situation, and I know that cases which are well organized by counsel can often get to a place where you're burning the midnight oil. So I don't want to take a case where we're starting from that premise.
Speaker 1:And regarding budgetary concerns, let's talk a little bit more in depth about that. What are the sorts of language that they use that set something off in you that you're like boy? They don't have enough money, they can't afford me, frankly, or this is going to take more hours than they have allotted.
Speaker 2:One is if they quickly going to negotiating about hourly fees, that usually indicates that there isn't enough money to do the case and they're in a bind, and I have had very little trouble, although not zero trouble, with getting paid. The returning the retaining counsel is expressing concern about the budget or negotiating about the fee. That's a big red flag and I probably won't take the case in that situation because it's just um, it's hard enough to do a good job without worrying about whether you're going to get paid.
Speaker 1:Have you had to turn down a significant number of cases.
Speaker 2:Quite often because of the area that I usually work in, which is patent and trade secret matters. Most often these are cases involving large law firms and in those situations and in those situations either the rate is okay or it isn't. And if they take me on, then there isn't a problem I'm getting paid. Now it may take a very long time to get paid because they're going to invoice at the end of the month after I invoice and then they're going to wait for their client to pay, but the truth is that I get paid in the end, so that has not been much of a concern for me. I think I'd only had to turn a case over to a collection agency once, which did work, but the collection agency took a third of the money that was recovered.
Speaker 1:Yeah, that's interesting that you say that, and I've heard that from a couple of experts that you getting paid is kind of contingent upon their client paying them. Is that appropriate when your contract is not with the end client, when your contract is with the firm or the attorney? Should your payment, or specifically, when you are getting paid, should that be contingent upon when the client pays them?
Speaker 2:let's say, three months after doing the work. But honestly, that seems to be an industry practice and the contract that I use very much specifies that I am not working for the law firm's client no-transcript.
Speaker 1:Speaking of contracts, do you have any specific terms that you like to put in there? For instance, do you like to take a retainer? Do you use a form contract? Do you use a travel rate? What are some of the terms and conditions that you enjoy using in a contract?
Speaker 2:that you enjoy using in a contract. I use the contract that is available from the SEEK company and that, I think, is a good balance between something that an attorney might be willing to sign and something that represents the interests of the expert represents the interests of the expert. The way I do billing is I tell all of my clients that I only bill for when I am specifically working on their case and nothing else, and so I do not charge any form of overhead and I do not charge for time spent traveling, and what that does is it allows me to have one number, and I feel like the simplicity of the billing is a useful thing for getting business. Now in the contract it does talk about things like if a deposition is cancelled at the last minute, situations where I may have a real opportunity cost. So those are some of the protections that are useful to have in a contract, because things can get a little wacky, and having the retaining counsel sign something um, some leverage if I get jerked around a lot, is a good thing.
Speaker 1:Shifting gears in an offline exchange. We had talked a little bit about changing logistics in in uh expert witness work and you had mentioned the effect of AI and in fact, you're going to talk about AI in a conference. Can you tell me a little bit about this?
Speaker 2:The influence of AI on expert witness practice is going to be profound and I'm interested in how that will play out. I think that quite a few of the people listening to this podcast will have seen disasters associated with misguided use of AI within litigation. So, for example, expert reports which are completely excluded because of having things like non-existent citations real values that can be obtained from the skillful use of AI in expert witnessing and I'm planning to talk through that at this presentation.
Speaker 1:I'm giving that's absolutely fascinating topic. You had mentioned that you had done a lot of patent work, ITC. What is this sort of administrative court like for an expert witness? How is it different going before patent examiners compared to going before, you know, a typical jury trial?
Speaker 2:I do a considerable amount of IPR inter partes review work. With that there is an administrative patent judge, but I've never been asked to testify at a hearing in front of an APJ. The IPR work. Basically my entire testimony is the deposition. So the way I think of it is that the deposition is the trial, though the judge is not present. A very enjoyable kind of case are the International Trade Commission ones. I've done two of those which have gone to bench trials. The great thing with that is that the administrative law judges typically have a lot of technical knowledge, and so I've had the pleasure of you know. After having the cross-examination, the direct exam is written, so that doesn't happen during the trial, but after a cross-examination I've been examined by the judge, which is great because, firstly, these folk are totally up on the technology and secondly, their goal is a greater understanding rather than trying to trip me up, and so that sort of testimony is always an absolute joy.
Speaker 1:In an engagement. Sometimes there is an entire trial team. It's not just you and the attorney. There might be assistants, there might be paralegals, other expert witnesses, other attorneys besides the lead attorney. Where do you fit into that process as an expert, and to what extent do you interface with the other parts of the trial team?
Speaker 2:That's a great question and it reminds me of one of the ITC cases that I did me, of one of the ITC cases that I did, which astonished me in terms of the degree of coordination required to get all of the witnesses on the stand during a five-day trial, of which only half of the time was available for the side who had retained me. Everything was done minute by minute. It made me think it was like producing an opera. I mean, it's not even like producing a TV show where you could do another take if something goes wrong. Everything has to work the first time.
Speaker 2:So I had a lot of kind of tactical interactions along the lines of should my testimony come before or after other witnesses? There were fact witnesses and other expert witnesses. Every night there was sort of a war room meeting where we discussed what had gone on during that day and adjusted the tactics for the next day. I had no idea that doing a case in front of the ITC required that level of effort and I felt like my job was, frankly, a good deal easier than that of the attorneys, because I'm just there to defend my opinion. They're there to win, which is a much bigger and more difficult task to have. So this really gave me respect for attorneys who are willing to take this kind of thing on.
Speaker 1:Speaking of defending your opinion. You've been doing this for a long time. You're published. How do you make sure to never contradict anything that you've ever said in the history of you know working in your field? Do you keep notes about things that you've said? If you change your mind, do the opposing counsel try and impeach you on the stand Prior?
Speaker 2:to a deposition, I not only go through my report, which in patent cases can be a very lengthy document, but I also try to anticipate what you're describing.
Speaker 2:I haven't always succeeded in doing that, so I certainly have the situation where in the middle of the deposition I get this exhibit, which is something I wrote before, straightforward to differentiate between the opinion in this paper I wrote and what the attorney is trying to trip me up with.
Speaker 2:When doing a deposition, I always feel like there are two processes going on. There's the technical issues, which I am confident about. I would never take a case unless I was absolutely confident that my opinion is going to be solid and that I can talk to anything about it. But there's also the legal aspect which I'm not an expert in and trying to understand why is opposing counsel going down this line of questioning? Because it doesn't seem like it has any value to me. Yet I must be wrong on that point. Those things are why depositions are very challenging and I never get used to it. But when they put something in front of me that they think is going to trip me up technically, that's usually on the easier side, because I wouldn't be in the deposition unless I was absolutely confident on my technical position.
Speaker 1:Let's talk about preparing for some of those challenging depositions I have had. A lot of expert witnesses have all kinds of different rituals they like to. You know, make sure to not eat or have a big breakfast, or have 10 cups of coffee or listen to heavy metal. Do you have any pre-deposition or pre-trial routine that helps you get in the right headspace for what could be potentially a contentious action?
Speaker 2:Yes, the first thing I do is a lot of preparation. So I go over my report, which I may have written six months before and so it may not exactly be top of mind. But also I am rather persistent with retaining counsel on the topic of I'd really like you to do a mock deposition. Imagine that you're the attorney on the other side and you're trying to make me squirm. So let's just do that, and I would like to fall flat on my face in front of retaining counsel and then do better the next time. So that preparation is very useful.
Speaker 2:On the day I typically do have a good breakfast. I prepare. It's a bit like a marathon run. In the federal cases that I typically do, there is a limit of seven hours of actual testimony, but when you add in lunch breaks and the fact that I will ask for 10 minutes off each hour, that seven hours extends to, let's say, nine. So I know that it's going to be a long haul and also I know that skilled opposing counsel may make all of the really difficult questions happen right at the end, when I am certainly getting tired. So I do try to pace myself and I do drink coffee during the breaks in the deposition.
Speaker 1:Let's talk about demeanor. How do you like to present yourself? You had mentioned earlier that a lot of depositions are Zoom or are telepresence these days. Is it more difficult? Is it less difficult to be working from home? How do you conduct yourself in a way that you're still connecting with the people that are talking to you? To present yourself professionally, how do you present yourself on camera?
Speaker 2:That's a great question. I actually don't do depositions from home. There is a rental office place a few miles away from me which has really good commercial grade internet service, so there is not going to be a problem with the video freezing or anything like that. I find that doing the deposition in a very controlled environment no one is going to open the door because I've rented the room for the entire day and I uh, so I find that that helps me present myself confidently. Also, even though it's a Zoom thing, I will wear a suit and a tie and I don't care what anyone else is wearing in the deposition. I'm there to give my best and I will dress as well as I know how to, and so those things, I think, project something to the other people on the call for the deposition, but they also affect me. I understand that this is like a musical performance. I'm going to get one shot at it and I want to do the best job that I possibly can.
Speaker 1:Let's talk about a couple of general topics. You work in a very, very broad field and it's a dynamic field as well. As somebody who is doing a lot of expert witness work, how do you remain current in your field to make sure that you're keeping abreast of the newest developments in all of the, frankly, very, very broad uh areas that you, that you work, and how do you, how do you stay current?
Speaker 2:I've never been a has gone to expert witness, but most of the time my work life is technical. It's not litigation oriented. So, for example, five years ago I co-founded a startup which is developing a medical device that is a non-drug treatment for mental health issues. So that's fabulous because it exposes me to an enormous amount of technical areas. Like you say, I'm a bit of a generalist. I don't do a whole lot of material science anymore, but I do do medical devices and medical imaging and I am also comfortable testifying about integrated circuits and electronics and sensors. So what I've always done is have at least half of my time be doing new development stuff. So either being the chief technical officer of this startup or just doing consulting technical consulting, which means solving technical problems for engineering clients. Doing that means that I stay abreast of things. I also go to technology conferences and that's a great way to stay abreast as well.
Speaker 1:Let's talk about the attorney-expert relationship. How do you get off on the right foot, the attorney-expert relationship? How do you get off on the right foot and what, in general, makes for a positive and productive expert-attorney relationship that you're going to get a call back from the next time that they need somebody in your field.
Speaker 2:Certainly I love it when I get repeat business. That is, you know, one of the two you know greatest things about expert. The other one is when the judge says that my work product has helped them understand the case. I really appreciate when I've had judges do that a couple of times.
Speaker 2:In terms of the relationship with the attorneys, I do a couple of things. One of them is I try really hard to not oversell my capabilities. So if they ask me if I am familiar with something and or maybe I don't, end up working on the case. But the worst possible situation would be a case where I feel technically out of my depth and so it's completely worthwhile not getting the business.
Speaker 2:In order to avoid that situation, I tend to communicate a lot with the attorneys. I mean, in some situations where I know that there is a budget constraint, I will tell them beforehand. You know I'm going to go to inspect this equipment and I'm anticipating the following costs and what do you think of that? Much easier to discuss that beforehand than them being surprised about a bill. But usually I feel that that being up front, especially if they are trying to kind of steer my opinion right. I only have one thing, which is credibility, and I am not willing to become part of retaining counsel's team to get their points made. So I need to be very upfront where what they would like me to say is not something that I can defend, not an opinion I can defend, and so I just want to tell them that before expectations get set, so that if that does not work for them, if my position doesn't work for them, let's stop and you can get another expert, and I think that will be better for both of us.
Speaker 1:Do you have any stories about cases that have either changed the way you go about doing something particular as an expert witness or reinforce something that you're already doing as an expert witness?
Speaker 2:Yes, this was a situation with a lawyer who was an older woman and I observed the way that she did depositions. She would fuss in a motherly way with the expert she was about to depose and she would offer the usually male expert tea and generally act like she was a secretary, fully getting the expert off guard, fully getting the expert off guard, and then during the deposition she would proceed to dismantle the opinions ruthlessly because her mind was just as sharp as a razor. So this simple trick that she was able to do as an older woman struck me as utterly terrifying.
Speaker 1:Excellent. Before we wrap up, do you have any last advice for expert witnesses or particularly newer expert witnesses or attorneys working with expert witnesses?
Speaker 2:I think that the business of expert witnessing is going to shift because AI in the next couple of years is going to become such an ordinary part of how everyone thinks that is problematic for expert witnesses. That is problematic for expert witnesses. Well, for a start, I'm sure that it's going to become de rigueur during a deposition to ask the expert what use they have made of AI. So I'm planning to just write that in my reports so that it doesn't become a point of contention. I think there are real issues with AI around confidentiality. Even if you turn off the infinite memory feature in ChatGPT, the material you provide and the questions you ask of the model will be used for training. I think that's a problem for protective orders and for HIPAA information that you may get in your work as an expert witness. So AI is going to hit everything very hard. How it interacts with expert witnessing is going to be interesting and unique, and so I think staying on top of that is going to be absolutely essential for expert witnesses going forward.
Speaker 1:Dr Daff, thank you so much for joining me here today.
Speaker 2:It was a pleasure, noah, very nice to meet you, and I thank you for the great podcast.
Speaker 1:And thank you, as always, to our listeners for joining us for another episode of Engaging Experts Cheers. Thank you for listening to our podcast, Engaging Experts. Our show notes are available on our website, roundtablegroupcom.