In this episode…

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. Seth Miller advises “trust in the redirect.”

Check out the entire episode for our discussion on rates, pre-trial caffeine, and travel expenses.

 

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Seth Miller, President, Heron Scientific, Inc.

Noah Bolmer: Welcome to Engaging Experts. I’m your host Noah Bolmer and today, I’m excited to welcome Dr. Seth Miller to the show. 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 for joining me today on Engaging Experts.

Dr. Seth Miller: Noah, thank you for having me.

Noah Bolmer: You are a scientist and you’re an inventor, but how did you first become involved in expert witnessing?

Dr. Seth Miller: The first case that I did was when I was only 39 years old, which is super young for an expert, but I happen to have been an expert in a topic of increasing importance to industry. We were learning how to make these tiny, microscopic devices and my expertise was making sure that they didn’t ever adhere to things. I won’t bore you with the details, but the fundamental issue was I did that starting from about 2000 to 2005 and because of where I happened to be in the world, I became one of the world’s experts in this niche field. Fast forward to 2010, I was an independent consultant, and two companies had litigation around 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. Now I was the older of the two experts. the other guy was about 35. But neither of us had any- both of us were sort of thrown into this world that we didn’t know about and had to find our way.

Noah Bolmer: Tell 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 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?

Dr. Seth Miller: My attorney was amazing. This was a patent litigation, and it was driven by a single associate who didn’t sleep. He was on top of everything despite his lack of sleep and he walked me through the process of writing an expert report. He explained what the issues were, and I felt most of the time that I had a handle on things. Obviously, there’s stuff you’ve never done before, like getting deposed, and there’s always a certain degree of uncertainty around that. I was handled great, but the other thing I want to say is that I had no idea of how any of this works when it started, when I got the call. I knew that expert witnesses were paid well, but I had no idea how any of it worked. I didn’t know what a retainer was. I didn’t know how travel would be taken care of. None of those things made sense to me. I got advice from a guy who I was working with as a consultant who was much more mercenary than I and helped me negotiate the initial contract. That was a huge help as well. I feel lucky.

Noah Bolmer: Well now, the obvious follow-up is I need you to share some of that advice with our newer expert witnesses. What is your advice regarding rates and travel?

Dr. Seth Miller: I try to keep things simple. On rates- 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.  I’ve been used to charging on an hourly basis. Now, I’ve been doing it for 15 plus years, and when I talk to folks who’ve never done consulting before, the first thing I tell them is, you’re going to charge twice what your hourly rate would be as an employee because that covers your health care and overhead. They could let you go at any time. There’s some benefit to getting flexibility. The rule is if you earn $100,000 a year, you charge $100.00 an hour as a consultant. That’s the first for expert witnessing. 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. In that regard, I would tell people that you charge for priority service the same way a machine shop would. If you need to have a part built or a sign printed, and you don’t want to skip the line, you pay for that. At a machine shop or printer, you might pay twice as much to skip the line. That’s the way you think about charging as an expert witness. You charge twice as much as your normal hourly rate, and what the buyer gets for that is your undivided attention whenever they need it. Also, as soon as they’re done needing you, they get to push you back onto a shelf and not worry about you.

Noah Bolmer: Sure.

Dr. Seth Miller: Sometimes it sucks to be put onto a shelf. When attorneys are negotiating to settle a case, they can’t tell you. You have no idea what’s going on. People aren’t responsive to my emails. What’s happening? Is it something I said? The answer is no. You’ve been put on the shelf. That’s what you’re being paid for. The bottom line is there are market forces. If you are a good expert in a sought-after field, you can set your own rates to whatever it needs to be, but thinking of yourself as a machine shop is not an awful way to start.

The other things you said were terms and clauses. There are people who negotiate a different rate for being on the stand and not. I don’t. You’re hiring me, so no matter how much stress I’m under, I’m going to charge you the same. That’s the way I work. I don’t charge differently for a deposition. I don’t charge differently for time on the stand. There are little details that you should consider. For travel, I charge at half time. 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. If all goes well, I will be sleeping on that flight, and that doesn’t seem right. Charging at half time represents a useful compromise. The one term I’ve had to negotiate or put in front of folks now at the outset is if there’s a trial, and you need me to be somewhere, and testimony gets delayed, then I get paid a daily rate for sitting in a hotel wherever it is. If it’s in Newark, fine. If it’s in Times Square, it’s even better. I’ve had that happen enough. Jury trials will move at the pace jury trials move. The first time this happened, and I didn’t have terms everyone understood it was, “Yeah, yeah, yeah, we get it.” That’s the only one that I consider to be a learning experience. I do it differently now than when I started.

Noah Bolmer: Are these travel expenses typically reimbursed or is it something that they sometimes arrange at the outset? How exactly does travel work when you have a case where you need to get on a plane and get hotels and all of that? You do all of that yourself. Do they set limits on like, “We’ll fly you, but you can’t go first class.” What are the typical constraints on travel?

Dr. Seth Miller: Everybody’s different and special. For example, when I was sent to South Korea for a case to be able to work on site. The good news is that the lawyers were like, “We’re doing business travel.” I was like, you’re not shipping me into South Korea and expect me to work the next day if I haven’t had a place to lie down. I suck at sleeping on planes, but I suck less when I’m in business class. I’m not a travel snob for domestic travel. I’ll fly by coach if you need me to fly by coach. If I’m flying from LA to New York a lot, I might ask for something better. I don’t think anybody cares if you pay for the extra leg room. It’s all negotiable. I don’t notice. I open my laptop and work.

Noah Bolmer: With so many cases going to settlement, and you had indicated settlements earlier, do you put any terms in your contract that protect you? Do you have something, for instance, in case you have put aside all this time on the off chance that it may go to trial and only get an hour of work or so. How do you handle the trend where a lot of cases are moving towards settlement?

Dr. Seth Miller: Yeah. For the record, my numbers, I’ve been an expert in like 19 cases. I discounted a couple that never started, just like you said, but I think I’ve testified in front of a jury three times. I’ve testified in front of judges 3 or 4 times. Three times for judges and then an arbitration panel once. Fortyish percent of the things that I [was] brought in for end up going to something. I have only requested a retainer once. If you don’t call me, fine. This isn’t like- there’s stress associated with wondering what the heck is going on because I’ve been retained in cases and never called, and that’s the one reason why I would suggest it’s a good idea to get some compensation is that I have learned- the one thing that I have learned, we were talking before- I’ve forgot 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.

Noah Bolmer: Right

Dr. Seth Miller: There is some cost to me to be retained but not used. This is something that I should consider doing more. The one time where I was adamant about getting a retainer was when I got contacted by both sides of a patent case and under the circumstances, 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. Now that I have shared this information, there’s an incentive to lock me up and get me off the table from the other person. Let’s set a retainer, minimum non-refundable retainer, that says that this is larger than you would otherwise expect. If I’m doing the work, this isn’t a signing bonus. It counts towards the hours that I do.

Noah Bolmer: Right

Dr. Seth Miller: I want you to be 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. Now that I am saying it explicitly, I recommend at least having a small non-refundable retainer to compensate for conflicts. That’s a cost you have to bear.

Noah Bolmer: Along those same lines, I’ve had expert witnesses tell me that certain attorneys will sometimes retain expert witnesses in hopes that will be enough to cause the other party to settle. Is that something that’s happened in your experience?

Dr. Seth Miller: I could totally understand this. I have not seen this. I do a lot of patent work. I’m on the science side, remember, I have a PhD and PhDs don’t have names, generally speaking. You can have esteemed professors who wrote the textbook on the topic, and I have been opposite to such esteemed individuals. 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 because I have seen also esteemed professors phone it in and 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. I’m more on the facts side.

Noah Bolmer: Let’s talk about case type and venue. You’re a scientist. You’re on a million patents. Do you mainly testify in patents cases, or do you work across crime, torts and other things? What’s a typical case for you?

Dr. Seth Miller: The first case that I did was a patent case at the ITC and absolutely bog standard. What you would expect a PhD to be involved with. The second case I did was false advertising, and I can say this because this was public. The folks from Arm & Hammer cat litter were suing the folks from Fresh Step cat litter for the television advertisements they were running that was maligning baking soda. And I got pulled onto this case. 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, so the judge called for a hearing on the technology. That 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. We talked before about how I do battery technology and right now my caseload and my consulting load is mostly batteries, but not entirely. I have this weird and varied history outside as well. This was definitely outside of batteries.

Noah Bolmer: Batteries and cat litter.

Dr. Seth Miller: The funny thing is that, for some part, I don’t remember exactly what, maybe it was the opposing expert testifying, I had to sit outside of the room. This was in the state of New York. The whole thing looked like Perry Mason. I have never been inside that kind of a courtroom before, and so I’m sitting on the bench, and I can still picture this. Where I wasn’t allowed to see this part of the proceeding, but it was open to the public. This group of attorneys goes in and then come out 15 minutes later and as soon as the door shuts, she starts to say, “Meow, meow, meow, meow, meow, meow, meow, meow.” 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, I’m sorry, was accused of defaming another, and I was asked for opinions on the specifics of the technology involved there. The specifics of the claims for the defamation. I have done more patent cases than other types of cases, but it has been somewhat surprising to me where the courts need technical expertise.

Noah Bolmer: Does that change your preparation when you go to 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 the depositions go? How do you handle getting ready to go into a new venue or type of case?

Dr. Seth Miller: That’s a great question. I would say the lawyers are going to tell me the ground rules and have told me the ground rules. I have had the experience of working with jury consultants to who are who are 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 face the jury. Speak slowly and clearly. Slower than I’m doing here. These are minor things, but it is nice to think to yourself I’m sitting in a box. The jury will be to my right. I should turn slightly to my right, but the jury consultant in this case said, “Move your leg to the right.” That will be a physical reminder that when you answer a question, have your body turn more naturally. You crane over to talk to the lawyer, but your natural response goes back to the jury. There are tricks of the trade. Doing a Zoom case or a Zoom hearing is different from going into Perry Mason Court. The vibe is different, so you must be adaptive.

Noah Bolmer: Let’s explore that a bit. Tell me about Zoom depositions.

Dr. Seth Miller: It is a little different. The first rule is [to] look at the light on your camera. I did a Zoom ITC case during the COVID period. I did a Zoom arbitration hearing during the COVID period. I don’t think I’ve done a Zoom deposition. This is one of those cases where you say, “I’ll have to go back and let you know if I have.” The other two were far more memorable and there are a couple of things that are different. Obviously, one is you spend however long beforehand cleaning your office and making sure there are no notes because you’re not allowed to have those. These are hygiene questions that make sure your background is good and the sun’s not going to shine in a way that’s distracting. That your wife or children don’t wander through. Be in a room by yourself where you can shut the door or keep everybody out. That’s all hygiene. From the standpoint of how you will answer and testify. You don’t get to make eye contact. You get to look directly into the green light.

From the standpoint of how dynamics work, it feels like there are different dynamics. I’ll tell you two stories. The first is for the patent case in firm and ITC that I did over Zoom. The opposing counsel’s charismatic and my sense is that opposing counsel relies on that charisma to convey many points, and that charisma was reduced over Zoom. You can’t hold the room the same way over Zoom that you can in person and in that case that worked against opposing counsel and towards me. That’s one point. The second little story was you can get away with things on Zoom that you wouldn’t otherwise. I did an arbitration hearing on Zoom in front of a 3-judge panel. Everybody was remote. At the end of one period of questioning, we saw one of the judges stand up and walk away wearing a shirt, tie, jacket, and pajama bottoms, and that’s fine. I personally don’t care, but I laughed quietly. But, again, that was during COVID. That was always the joke but, it was the reality. I am glad that person was comfortable. Whatever that person needs to do to properly focus, I am in favor of. It was different than what would happen in a courtroom.

Noah Bolmer: Do you have preference? Do you prefer to be on Zoom where you’re at your 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 grand gestures, and connect more?

Dr. Seth Miller: Don’t bring the kitty cat. The kitty cat won’t be controlled. I prefer to be able to get the additional information you get from body language and eye contact. A few weeks ago, when I last testified, I appreciated being able to see the jurors nod or not, to something that I’d said. If it looks like I’ve lost that person, I want to be able to restate it and make things clearer. You can see that better [in person]. We’re still human beings, and we still communicate through facial expressions, gestures, and whatnot. They’re hard to make out on the screen.

Noah Bolmer: You mentioned jury consultants. Is that something that you found valuable?

Dr. Seth Miller: Absolutely. You’re going to get an hour of jury consultant training, and as with all training, 80% of it doesn’t matter, and 20% might be useful. In this example, the consultant who did the training for everybody who was going to testify also sat in on my practice testimony and on the direct, not the cross. In that case, I got what I needed out of the training and the feedback from the consultant saying, “That was good.”  That feels really good, when you have somebody whose job it is to listen to experts, give testimony, and tell you, “That was clear. I understood it. It made sense.” It felt good. I’m a PhD and I can’t assume that the things I say make sense. The alternative is that your lawyer is going to give you the feedback. The counsel you’ve been working with you also has this deep knowledge of the case and shares that with you. Having that civilian, come in and hear what you’re saying, and give you feedback is also helpful.

Noah Bolmer: Let’s talk about some of the more tense situations, your depositions, and your cross examinations, which you alluded to. For instance, how do you keep yourself from getting tripped up and confused into saying something that you don’t intend to?

Dr. Seth Miller: Every lawyer will tell you to speak slowly, and only after thinking, and they’re right. That’s hard. You get asked the question. You wait a beat; and start your response. You try to keep your response short so that you don’t meander, but also you’re a PhD and that means explaining things. It’s super hard to explain this thing in a sound bite and so there there’s a natural tension. The most important thing to do and one of the things I feel I do is to listen carefully to the question, and the specific wording of the question. In a deposition, you’re allowed to push back on the framing and the wording. I’m never shy about pushing back on the wording because I have had the opportunity to write expert reports based on other people’s deposition quotes. I do Command F and search for the words and what they said. I know how easy it would be to take my words out of context. If I feel what I said is nagging at me, I’m not shy about saying, “I was thinking that I didn’t explain this fully and let me make sure to get this on the record.” When you do that, the lawyer’s antenna goes up, and it makes them excited. They will spend an extra 5 minutes crossing with you on that, so you should be deliberate if you’re going to do it, but it’s an option that’s available to you. Of course, you must remember your counsel is there listening, and they will rehabilitate you if necessary. It’s better to figure it out beforehand. It’s always better to be aware of it yourself, but you do always have backup. At trial, you’re not allowed to push back on the wording with the kind of freedom that you have at a deposition. You need to answer the question with “Yes, no or I can’t answer that with a yes or no.” If you’re going to use, “I can’t answer that with a yes” you better darn well have a good reason, so you don’t seem argumentative to the judge or the jury but sometimes you have to.

Noah Bolmer: You always have your attorney to help clean up anything on redirect.

Dr. Seth Miller: As a scientist, I will get asked technical questions, “What if this?” In those cases, it’s fine for me to say, “I don’t understand. You just said, what if the situation was X? For it to be X, these other three things have to be true. Are those also true? Can you confirm?” If you do that- If you’re technical, the hypotheticals are going to blow up quickly because the opposing counsel hasn’t gone down those three other levels of technical assumptions that you’re able to. It’s fair to do that, but again it shouldn’t be overdone.

Noah Bolmer: When explaining these more technical aspects, do you like to use demonstratives? Charts, graphs, models, or 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?

Dr. Seth Miller: A few things. First, 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 must learn a deep detail of chemistry, electrical engineering, or something I’m going to teach them. Demonstratives are helpful. They’re going to draw everybody’s attention, and in that sense, they’re going to suck the attention out of the room. You have to be careful and not overdo this. Everyone is 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. If I do it a second or third time, they’re going to be overwhelmed. I would recommend being parsimonious. A good demonstrative will be better than a PowerPoint slide and a PowerPoint slide is easier to follow than a verbal explanation of a complex process. So, take advantage of it when you can. Just recognize the attention of the audience, whether it’s a judge or a jury must be metered.

If I have a battery cell that I’m analyzing, there are photos like crazy. I’ve done photos. I’ve done movies. For example, I needed to do what’s called a CT or a Computer Tomography scan of a cell.  Now you might be familiar with CTs. Go into the doctor’s office and it’s a fancy chest X-ray. 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. When I want to illustrate the insides of that cell, you need to look at a bunch of two-dimensional cross sections, and that’s sometimes hard. So, yes, creating a video using that information and supplying that video to the judge and eventually to the jury is important. I’ve offered demonstratives created by the media and they were part of the expert report because they need to be part of the expert report in order to show up later in trial.

Noah Bolmer: Absolutely. 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?

Dr. Seth Miller: Yes, heavy metal music and a can of Coke. I’m exaggerating a little bit, but my first rule is- look food is the enemy at some level for me personally. I think better on an empty stomach up to a point. I’ve spoken- so I know, for example, after lunch I and a lot of people will get a little sleepy. I have asked counsel whether they will take advantage in a deposition and save the really complex questions at 1:30 pm. And the answer is, “Of course we do!”  On deposition I’ll have half a sandwich at lunch. And I’ll have a very light breakfast just because I want blood going to my brain and not my gut. I’ll do smaller meals, so a ritual like this is important to me. Again, especially in a deposition, I might be on the stand for seven or eight hours or clock time, and that’s a long day. Figuring out how to meter in calories without bloating myself is important. I’m not kidding about the [can of] Coke. My biology takes well to empty calories. I know that other people might get too fidgety. Everybody has to figure that out for themselves.

Noah Bolmer: Shifting gears, let’s talk a little 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?

Dr. Seth Miller: The first part of the question is the simple answer is the obvious one. I’m an expert. In the case of batteries, I’ve been doing what’s called electrochemistry, which is the scientific term, that batteries are within. That’s the field where batteries are within. I’ve been doing that since 2005. I bring in a set of patents to a patent case which not only helps establish my expertise but also gives me a sense of- I’ve had a long time to think about what patents are for. As an inventor, again, I have these 94 patents, and whenever I get hired as a consultant, I will often, not always, but often come up with an idea that ends up helping my clients with and I might patent it. I’ve thought a lot about how patents are written and what the details are. 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. Let me back up a second. When you’re writing a patent, generally you write an example. If 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. But you need an example.

The reason you need an example can sometimes not be obvious to an inventor. There is all 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. There’s a case I was working on where the patent explained in detail exactly how a measurement was made, and this was important because there are three different ways to make this measurement. The measurement values you get were systematically biased based on how you did the measurement, and the claim described a range of values protected by the patent. So, the question is if you use technique A and get a different answer than if you use technique B. What is the range? This is not philosophy. This is a good question, and 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. That’s what I’m bringing as an expert into the case from my experience in the patent world like in litigation, I now bring this back to the conversations that I have with my clients. There are nuts and bolts questions that I can now answer better than anyone explained them to me, but also there’s this experience that what the purpose of a patent is to be litigated. Nobody takes a license to your technology based on your kind words. Nobody will stay out of a market based on an idea that is not declared clearly in a way that’s protectable in a patent.

Noah Bolmer: Right.

Dr. Seth Miller: It makes me think about the world of litigation differently. I’ve talked to businesspeople and inventors about patent trolls and that’s a term to describe folks who do not practice a patent but buy it from somebody to litigate it. Now that I’ve been through cases, I have a much more nuanced view of what makes a patent valuable. How is that value created, and therefore, when it’s appropriate to go for patents and what the morality of the whole system is like. 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 more deeply and you’re like, “Yeah. No. I get why it’s this way now.”

Noah Bolmer: Are there changes that you would make to the system if you had your druthers?

Dr. Seth Miller: I’m not smart enough to know how to do this better. I’m going to think about how to effectively anonymize this story. I’m going to change something a little, but I’m going to say, let’s imagine for a moment that you have a start-up that makes technology. They work at it for a while, but they fail. Now they were able to raise money in part based on having their IP as collateral. Having these patents that were collateral to investor and the start-up goes under. The investor is left with whatever pieces of equipment are in the lab and this intellectual property.

Noah Bolmer: Sure.

Dr. Seth Miller: Now, that investor may then go ahead and transact on this further down the line and it ends up going to a quote, unquote non practicing entity, or a patent troll and I look at this and that, and people will criticize patent trolls, but I’ll say to myself what specific part of this story was morally wrong? You are coming up with this answer that makes 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. I listen to that case. I want the startup to raise money. I want them to go ahead and try to build these things. There are all sorts of sides. Reality ends up being made up of a whole bunch of side cases. There’s no normal. Having been involved in these patent cases, and in the misrepresentation, and in the false advertising cases has helped me appreciate the complexity that goes into it. Yeah, I might change some stuff about software patents if I could, but for the most part, I feel like we’ve come close to doing this right.

 Noah Bolmer: Let’s back up and talk about a few 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 again?

Dr. Seth Miller: I’ve been lucky enough to have 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. This is table stakes, but also important. I can elaborate on this further. There are lots of ways for people to be a jerk. I’m not going to go into the list. You can ask ChatGPT what you should not do to not be a jerk. It’ll be helpful. I had a dear friend who passed away a few months ago, who used to say he had three rules for life. Number one, was to show up. Number two was to pay attention, and number three was to tell the truth. In the context of expert witnessing, showing up means, like I said before, is you’ve been retained. To answer questions quickly and to put aside all the other stuff that you’re doing. Be responsive to what the lawyer needs because they have a deadline, and they have a judge who’s not going to accept excuses. Are you willing to show in that way? Not everybody is 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. That’s showing up.

Number two is paying attention. This comes down to these questions about being deposed. You listen to the question that is being asked. Are you aware that the lawyers have put some trickery into that question? I once had, and this is 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?” It looked like one I had seen before, but it turned out it was not one I had seen before? I said, “Yes.” Counsel was like, “In fact, you haven’t.” Then they tried to make a big deal of this, and it was like, “Dude, are you kidding? We’re doing this show?” I don’t think the judge was terribly thrilled with that, and I don’t think that it helped counsel, but I was like, “This is a thing that’s happening right now.” Pay attention. Take that breath. All that stuff matters, and again, circling back on showing up, paying attention means contributing and recognizing details, and being able to feed that information back to Counsel so that they understand that information exists that they should be aware of. Again, you don’t want to submerge them with feedback, but showing that you’re paying attention, I think is appreciated.

Noah Bolmer: Dr. Miller, thank you for joining me here today.

Dr. Seth Miller: Noah, thank you for having me.

Noah Bolmer: And thank you to our listeners for joining us for another episode of Engaging Experts. Cheers.

Dr. Seth Miller, President, Heron Scientific Inc.

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.