In this episode…

In actions that go to trial, the jury’s perception is everything, according to guest Dr. Stephan Athan. We discuss the importance of communicating technical topics using understandable analogies and maintaining credibility by connecting with jurors.

Check out the entire episode as we explore “smoking gun” moments during trial, collaboration, and receiving honest feedback.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. Stephan Athan, President of Athan Engineering

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host Noah Bolmer. Today I’m excited to welcome Dr. Stephan Athan to the show. Now. Dr. Athan is the President of Athan Engineering, a full-service engineering consulting firm. He’s a sought-after expert witness in engineering with work ranging from failure modalities to compliance and beyond. Dr. Athan, thank you for joining me today at the Round Table.

Dr. Stephan Athan: Thank you, Noah. I’m thrilled to be here, and I appreciate the opportunity to be part of this.

Noah Bolmer: Absolutely. Let’s jump right into it. You’ve been an engineer for over 30 years, including over 10 as an adjunct professor. How did you first get started in expert witnessing?

Dr. Stephan Athan: I was thinking about this, and I think it had to be around the early 90s. I graduated in 1980 with my first degree. I was working on my master’s and Ph.D. beginning in 1989. My wife was a well-known and respected attorney in Tampa. One day we got to talking and she asked me if I knew any experts on a particular case. One thing led to another, and she said, “Why don’t you think about doing this?” That was how I got into it. One of my professors at the university, Dr. Burdict was a well-known expert in his field, and he had a book about being an expert witness that I read, and one thing led to another. I realized that I could put my expertise to work, and it was fun doing that.

Noah Bolmer: For those listeners who aren’t fortunate enough to be married to an attorney, what advice did she give you about being an expert witness? What does that entail? What questions did you have, and how did she explain the job to you?

Dr. Stephan Athan: I was fortunate to be married, and I say to have been because my wife passed away two years ago, but the most thrilling thing about this is she became my first mentor in this realm. I strongly advise any expert to work with a mentor or someone in this field. The most exciting thing was interacting and working together for decades. I worked pro bono on our case with her firm, which was a thrilling criminal case. One thing I picked up and want to caution engineers about is our engineering world is black and white. It’s scientific, proof, theory, empirical analysis, and repeatable experimentation. The world of litigation and law is purely gray. We’re talking about plugging a black-and-white behavioral mindset into a gray world and that took some time to get used to. I’ve worked on different types of cases, criminal, civil, and patent infringement, and I can tell you an expert on accident reconstruction or medical device failure cases is different from a patent infringement case. I was proud of my goal of finding the smoking gun. My wife would say that we could add it to our client list. I work with both sides, plaintiff and defendant. I credit my wife for getting me involved and excited about it and continuously helping me through the process.

Noah Bolmer: Besides working with her firm, what were some of those first phone calls like? Somebody calls you and says, “I need an expert for XY and Z.” How is that vetting process?

Dr. Stephan Athan: That’s a good question. That’s a great question because the one thing I learned early on was to be yourself. I’m a high-energy guy. I’m a passionate engineer, consummate scientist, and geek nerd. At the end of the day. It’s hard when you’re meeting people for the first time, you’re not sure how to present yourself. You’re interested, but you want to be respectful and professional. I learned to be yourself and when you talk, talk about what you know. Don’t try to outsmart the attorneys, you will never do that. Be yourself and try to follow through with your commitments. For example, I would tell attorneys, I often find a smoking gun, and nothing better would turn up. An outcome would be for me to find the smoking gun, and they were bedazzled, leaving a criminal case I was on with my wife’s firm. She never imagined anybody could come up with what I came up with to address her client, the defendant. It was the State of Florida versus her client. I think the biggest thing is to be yourself. Be confident, fearless, and have thick skin. I think you’ve heard this before: and I’ve heard from attorneys that experts, at least patent infringement experts, are considered hired guns. I want to make a distinction between patent infringement experts and other experts. They’re two different types of people and processes. For example, an expert on an accident reconstruction case [will say], “Just tell me what happened.” That is all they want to know. My wife’s case was a criminal case, and it was extraordinary. We brought in information from a state trooper’s dashcam that no one expected or was prepared to see, and I found it. That was the smoking gun. In the patent infringement world, however, it’s more complex. There are too many variables, and you’ve got to settle in. It takes time to get settled in, and work with the attorneys. and understand what they’re after.

Noah Bolmer: Do you ever work on a team with other experts in the same action?

Dr. Stephan Athan: Absolutely. There are often many experts involved. We meet and collaborate with these experts. There are rules of the game. I made a note here to be sure and tell you that the most important thing is to understand the game you’re about to get into and speak the language, but in answer to your question, there are other experts. At the end of the day, my advice is to hold your own. You are a paid expert, act like it. Go in there, do your job, stick to your guns, and be careful when you give your testimony and reports to make sure you understand what’s going on. Preparation is the most important thing. I think I have a unique method, and I don’t know anyone else who does what I’m doing. For example, I get a call. All I need to hear is a smidgen of the case. They don’t have to tell me the whole thing. Just give me a smidgen. I will find the case and the complaint. I will find out who the plaintiff is and who the defendant is. Who the lawyers are and everything about the case because I have access to that information on internet databases. The bottom line here is working with other experts is a standard part of the process.

Noah Bolmer: When you’re writing your report, are you typically given any kind of boilerplate to get started, or are you writing them whole cloth? In either case, how do you interact with the other experts in forming that report? Are you taking your part and running with it and then it gets combined in the end? Do you collaborate in writing?

Dr. Stephan Athan: I guess I can answer [your question] this way, from an engineering perspective, the this is about collecting and connecting dots. First of all, most experts collaborate with the attorneys on any report. I think it’s essential. The reason for that is twofold. One is not just because the expert has something to offer, but because things are going on that the expert might not be privy to and that has to be demonstrated and articulated in a report. I’ll give an example. I was deposed recently and was responding to the deposition of my report and the opposing attorney asked me, “Dr. Athan, do you use do you ever use Wikipedia for your research?” Without thinking, that’s the first thing I learned is to stop before you answer. Take a breath. Think about what you’re going to say, formulate it, and then say it. There’s a reason for that, including the fact that the attorney might want to jump in. I was so sure of this one that I jumped in and answered without thinking, “Absolutely not.” Then, he said, “Would you please turn to page 23? Where did that picture come from?” By golly, he got me. It was a picture that I got off the Internet of a particular incident. You have to be careful because remember the lawyer’s job, and these are the smartest people with whom I have ever had the pleasure of working with, their job is to win. As expert witnesses, we are like supporting actors in a movie. We’re the supporting actor. We are there to do a job. We have certain expectations but even with these attorneys they run it. Even things like reports you’ve got to work with them. You’ve got to integrate with what they want to get across. This all starts by the way of complaints. I’ve read complaints [from] firms that I don’t agree with, and I’ll tell them up front, “I don’t agree with that complaint. I don’t agree with the outcome, and I don’t think I can help you.” That’s important. If you don’t believe in what’s going on in what you’re defending or representing as an expert- I think I can be more effective by being passionate and connected to the case. As far as reports, rebuttals, and things like that we must work with the attorneys. This goes with small firms and large firms. I worked with Jones Day two years ago, and it was the most thrilling experience of my life. These are the smartest people I’ve ever had the pleasure of working with. They were out of the DC office. It was an International Trade Commission case, and it was extraordinary.

Noah Bolmer: You said that you have worked on both the plaintiff and defendant sides. Do you find that there’s any significant difference between the two?

Dr. Stephan Athan: No, I don’t. The complaint tells you everything. It describes the story. I’m on the plaintiff side of a case now and it to me, the case is black and white. The case with Jones Day I was on the defendant side and interestingly enough, that was black and white to me, so it’s all about your perspective. I think having been in the industry as long as I have, I’m very comfortable with my experience, my background, and I like challenging and being challenged on any level with respect to the area of expertise that I possess. I think that applies to whether it’s plaintiff or defendant. I don’t personally think there’s a difference. It’s exciting work and the whole process is like making a movie. You start, you finish, you produce it, and you go sit in the audience and watch what you did. You want to feel good about it.

Noah Bolmer: Besides plaintiff and defendant, there are other permutations, especially with reports, which we were just discussing, including initial reports versus rebuttal reports, for instance. Do you take any different strategy when dealing with the two types of reports?

Dr. Stephan Athan: I don’t personally. I follow lead the attorneys and learn what their strategy is because it’s all strategic. I think the hard thing for me one day was to realize that I don’t have all the answers. That’s what I’m used to doing in my world. I don’t have all the answers. I wish I did, but I have access to neither all the information, all the reports, or all the resources. At the end of the day, you’ve got to bound what your role is and move forward in that respect. This applies I think to both small firms and large firms, the reports, and the rebuttals. I like working with and collaborating- I don’t think I would ever dare write a report myself without it being reviewed. If you’re going to accept it being reviewed, then you’re going be prepared to have it criticized, edited, and so forth. If we’re going to do that, I think we just should start at the beginning and enter this process together.

Noah Bolmer: Backing up to those initial phone calls, what part of the vetting process is on your side? In other words, what are the questions that you ask and you decide whether or not you’re going to take an engagement? You mentioned that you want to be invested in it. You want to feel like you’re on the correct side and you can feel good about arguing. Do you have to turn down a significant number of cases for that reason or for any reason?

Dr. Stephan Athan: I think the one thing that helps me a lot is knowing as much as I can- as an engineer in my work covering contracts. Most of my work is on classified government contracts. I had a mission, and my mission was knowing more about the customer’s problem than the customer knew. I tried to apply that in this world of expert witness, and something happened right off the bat. I’ll give you an example. It sounds trivial, but this has played a big impact in my interactions on first phone calls. I learned and was complimented by a lot of experts [and] seasoned attorneys [on] what I do. When I get a call, what I decided to do was answer the attorney’s questions over the phone as though I [was] being deposed. Now, that can be tricky because the only attorneys [who] get that are the seasoned attorneys. I’ve had a few novice attorneys who have called and interviewed me. The problem with that is they get offended because I’m not answering their questions. They don’t know I’m answering the questions as though I were in a deposition, which the seasoned attorneys get immediately. I had to make a decision. Who do I want to satisfy here? I’d rather work with the seasoned attorneys and answer the questions like I’m being deposed. Then let them decide how good a fit I am. If I’m being interviewed by a novice attorney and they are going to interview and hire me because I’m answering the questions the way he wants me to answer them, I don’t know how effective I can be on the case. Oftentimes, I know as much or more about the case, at least from the complaint, than they do. I’ve got to make a decision and my decision [is] I want to give them the best version of me that I can, and I think the way to do that is to take that approach. Now, I’ve been criticized for not having the best approach, but that’s my approach and I get down to the nitty-gritty. I’ve been hired in the middle of an interview. The attorney will stop me [and say], “Stop. I’ve heard enough. You’re hired.” I take that approach of my answering as though- and I’ve had these attorneys compliment that approach of my answering as though I were in a deposition. They want to hear that, and they pick up on that. These are smart guys. They don’t have time to mess around. They’re busy and they don’t have time. They may be interviewing a dozen witnesses, so your time is important with them. The best way to do that in my opinion is to is to take my approach.

Noah Bolmer: So, you recommend that other experts give that a shot?

Dr. Stephan Athan: It’s a personal decision. I made up my mind that I was going to respond on my terms. I think I’m being transparent, and I want them to know everything and not hide anything. I’m telling the truth. This is who I am. I’ve been complimented on my energy level. “I love your energy. We want you in front of a jury.” This is what this is all about. I love being in front of a jury. I love telling stories and using analogies. Decide who you are. Decide what your brand is. What are you selling? Then stick to it. You may not be hired by everybody, but you’ll fit in beautifully with those [who] do hire you.

Noah Bolmer: We talked about this a little before the show. You’ve had a long career; written a lot of things and you have a fairly extensive online biography. How does that come into play when you’re getting hired? What are some of the caveats with people going back through things you may have said or done a long time ago? How do you deal with that in court?

Dr. Stephan Athan: That’s a good question and more important than most people might think. Let me start by saying if an attorney can attack your credibility, they will. Now, on that note, everything I write in the public domain is fair game, including the professional profile that I’ve placed online. I want everybody to know who I am. They say that you shouldn’t put more than 10 years of your professional experience online. I want to put it all there. I was born a geek nerd and as positive as that may sound. Having been born a geek nerd, my dad was an MIT graduate, and I’ve been doing nothing but engineering my entire life. That’s displayed in my profile. Despite all that and the goodness that I think it transcends, attorneys will find something to use against me. They’re going to do that anyway. There’s no such thing as a perfect expert. I don’t care who you are. The opposing attorney’s job is to attack your credibility, and they will use whatever means, with all due respect, that they can, as they should. My wife was a criminal defense attorney. She had some bizarre cases and some controversial cases. Did she believe in what they were doing? Absolutely not. Her job was to defend them and defend them vehemently, and she did zealously. This is when you get in your head about this is their job. It’s kind of an exciting process. It’s like being on a deserted island with other experts. Each of you has a unique perspective of the universe, and you’re sharing these ideas. You have to have thick skin [and] be fearless. You can’t be squeamish. This is a tough business to be in at least as a patent infringement or intellectual property expert.

Noah Bolmer: You mentioned earlier how important preparation is for you. Walk me through some of the preparation techniques that you use when you are going into a deposition or you’re going to be cross-examined. Do you use mock cross-examination? Do you use other tools?

Dr. Stephan Athan: As a researcher, I use everything I can get my hands on. Fortunately, as a researcher early in my career, I learned that the exciting part of discovery is the journey. I know I’m going to find something. I believe I’m going to find something. I’m very confident and optimistic. I often say I can squeeze water from a rock. I love the excitement of when you find something especially when I’ve found a smoking gun against big players, big corporations that were shocked and couldn’t figure out how I got that information. I think the most important thing is to be prepared. In my opinion, you can never be too prepared. I think you can be underprepared. Starting with the content, having access to the complaint, and having access to everything that you know about the case. Now, the good news is I’ve been in this business for a long time. On one side, I can say I have a big advantage because I know what we did over the past 40 years. That can be a detriment to you. That could be something that the attorney can attack me on. You’ve got to- it’s a give and take, but at the end of the day, preparation is everything. The attorneys, I think, admire someone who’s prepared. I’ve had attorneys ask, “How did you get a copy of the complaint? We didn’t send it to you.” It wasn’t proprietary or confidential. If it is, I wouldn’t have it. You don’t want to play that game. Sometimes I went online and there it is. It popped up on Google search. The thing that I thought was proprietary or confidential. Once it’s in the public domain it’s available to anyone.

At the end of the day, preparation is everything. Preparation helps in multiple ways. One, it helps you in the near, mid, and long term. Whatever you learn now, you’re going to apply later and if you intend to do this for a long time- and it’s exciting. I’ve been in this business for 44 years and to be doing this at my age and at this part of my career it’s the most exciting thing I can tell you I do. It’s one of my top five priorities. My children and grandchildren are first. [Then] my expert witness work. I’m a pilot, a musician, and a researcher. Those are my five priorities right now. This is the most exciting. I stick to my guns, and I don’t deviate. I stay within my bounds of who I am and my area of expertise.

Noah Bolmer: Tell me a little bit about how you are an expert and how you remain an expert. What does kind of the category of expertise mean to you?

Dr. Stephan Athan: I think that’s a personal decision. I know in my career; I have a bachelor’s, master’s, and a Ph.D. in electrical engineering. I’m highly focused on that area of expertise. I had a thrilling career. I was plugged into Silicon Valley. I would make monthly trips out [there.]  I’m talking about the area of integrated circuits, of working in this field back in the day before anything like this became available. Back in the 70s, we were using the most archaic, antiquated techniques you could imagine. You couldn’t imagine what we’re doing- that today we can fit billions of transistors on a piece of silicon the size of your fingernail. That didn’t just happen overnight it happened over many years. In the old days. I would say collectively there are five major steps to innovative circuit design, and I worked in all of them. Most folks coming up like I did, from old school, worked in all these different areas. Once you get plugged in and understand what’s going on, then the changes aren’t that significant. That allows you to stay up to speed on everything. I know what my strengths and weaknesses are. I’m honest and transparent about those.

When you’re connected to conferences, symposia, and workshops like I have been over the decades, and you’ve worked with some of the smartest people in academia and industry. Many years ago in D.C. I briefed Congressman Bill Young, Chairman of the House Appropriations Committee, and his office on how to make microchips. It was the most thrilling moment in my life. I was intimidated because of who it was, not because of what I was delivering in terms of content. If you feel comfortable and confident and know where the players are it’s like any business. If you’re in the business of making movies, you know all the directors and actors are. In engineering, it’s the same thing. We know who the players are. There’s a lot of change. It used to be HP and it became Free Scale. Then it became MXP, but they’re all doing the same thing. It’s higher tech, but not much has changed in the context of a seamless integration flow of technology. That’s the beautiful thing, the technology- we feel confident that we know what’s going on. Do I know every player in the field today? No. I heard today that NVIDIA is now the highest-rated company in the world, or the country at least. Anyway, I know what videos do and I know what they’ve been doing from day one. I met Chris Malachowski, the co-founder [NVIDIA], at the University of Florida. It’s about being plugged in, understanding, and having a passion.

A few years ago, another thing happened a few years ago, there was an opposing expert- and by the way, I always research the other experts. I want to know everything I can know. It turned out that this fellow had a technology degree from a reputable school in Chicago, but not any advanced degrees. I thought to myself how can this guy be doing this? Then, I saw him on the stand, and he was very effective. That’s what it boils down to. I like the fact that you don’t have to have a Ph.D., a master’s degree, or an MD. It helps certainly. Why does it help? Let me make this comment. It’s all about the jury. What is it the jury [is] going to see and hear? The credibility issue encompasses a broad range of issues. In that particular case, he was great on the stand. He connected with the jury and getting back to your question, I think it’s a personal thing. Are you comfortable up there? Are you effective?

I remember one deposition I was on a few years ago. I walked out of the deposition room. It was in front of an administrative law judge, and we were doing a remote teleconference. I was so focused on this conference. There was a beautiful interaction between me, the plaintiff, and the defense attorneys and when I walked out, I was in my zone. I was zoned out. In another world, like a runner’s high. I walked out of the room and all the attorneys were waiting for me. They clapped and came up to hug me. I was like “Whoa, I guess I did a good job.” It doesn’t hurt to have confirmation like that. At the end of the day, you have to conclude that maybe I was doing the right thing and was going to stick to it. It’s so exciting and like I say, I know I have some trials coming up this year, they are going to be exciting. I have already been though depositions. They were awesome. I learned something new then. I didn’t know you could go seven hours in a deposition, but you can. I think that is the legal limit to how long a deposition can last. I’ve never been in a seven-hour deposition, but there you go. It’s really exciting and I encourage anyone, if you are going to get into it, you have to make a commitment, in my opinion. I have met some amazing people both from a technical standpoint and lawyers, and experts and it is a respectful professional field we’re in. I love being a part of it.

Noah Bolmer: You work in a couple of different venues. You do ITC, federal district, and probably others. What are some of the differences? Are there differences overall in the way you prepare, or the way actions go, your bill, or anything else?

Dr. Stephan Athan: Absolutely. One thing I can tell you is at the ITC is no jury. You testify in front of an administrative law judge and that’s it. The entire process takes months from beginning to end. Most patent-infringement cases take years. It might be a year before you are deposed. Then another year before the trial. These are multiple years. The ITC is a completely different animal. I have to admit to folks that I was thrilled to be working with- I have a tireless work ethic. I love working. I work all hours of the day and night and push myself to unbelievable limits, but I have to tell you, these folks that I worked with if I can divulge the firm, it was Jones Day. I can even give you names. These guys were amazing. They gave me a run for my money. I have never worked harder in my career than I did with these guys. I’m telling you; I didn’t think other people worked that hard, but we were going at it. It was a very important ITC case. The outcome was extraordinary. They would tell me ITC cases are different. The procedural issues are the same and a lot of the same things are the same. The biggest thing is there’s no jury you’re in front of a LJ and that’s your goal. That’s your target. Otherwise, preparations, reports, and depositions are all the same. It’s an exciting process to get in and be with others who are in the same mindset that you are.

Noah Bolmer: What are some things that make that relationship so good? For instance, you seem to enjoy working with Jones Day. What makes the relationship between attorney and expert hum along?

Dr. Stephan Athan: I think the best thing is working with other people. Now, you’re talking about attorneys, these are some of the smartest people I’ve had the pleasure of working with. With that intellect, with that intelligence you have to understand that comes with a bit of arrogance and ego, and that is hard if you’re not prepared for it. Now. I was married to a woman, an attorney that had that same outlook. You have to be that way. I think the fun part about it is the same as from The Matrix when he said. “The way to understand someone is to fight them.” This is what I felt like I was doing. Getting in the gym, on the mat with these Jones Day lawyers. We get out there and we do it. We get in a fistfight. Not literally, but we get down to gouging and punching. At the end of the day, we’re on the same team and they need that. They complimented me for pushing back and not settling for everything they were telling me. They were the folks that I work with, and they were amazing. They were so humble, they would admit, “Gosh, I didn’t know that. I just learned something.” That’s so exciting because they have a job and they’re respectful and professional and they’re expected to behave in that manner. I think the big thing is being able to work with these folks, putting your ego aside, but holding your own and not backing down. At least tell them what your argument is and how you’re justifying the argument, and oftentimes they’ll agree with you. That was what it was like. Otherwise, it’s no holds barred in these processes, and that by the way was the best preparation for the depositions that there could be because you know that other attorneys are going to come after you and they’ll want to cut your throat and you have got to be calm, There are methods of being calm. I use the techniques I have learned over the years. I have learned to do and not do very important things. They’ve all been helpful and I’m still learning. The exciting part is to think to myself what am I going to learn now?

I learned some amazing things back in December. I was in depositions up in New York for a firm, and that was awesome. We did 2 depositions in one week, and both of them lasted 7 hours each. That alone was new, but it was like going into battle. I love reading military history. My passion is the Pacific theater during World War 2. Chester Nimitz and that mindset. I’ve been watching Midway every week to get excited and inspired by the way they thought about it. It’s about playing a complex game of chess. These attorneys are doing what they do. It’s what they do, and I think if you look at it pragmatically, from a high level it becomes- it’s a very exciting process. This is our beautiful legal system. One more comment on that issue, I just learned in New York that we’re the only country in the world that handles our litigation the way we do insofar as patent infringement cases with discovery and juries. There are no juries outside of this country. I didn’t know that until recently. You have a unique process. I don’t know anybody who wouldn’t claim that it’s more or less efficient, but it’s a unique process and to be a part of that for me from an existential standpoint, is very exciting.

Noah Bolmer: Absolutely. One of the things you’ve brought up a couple of times is the feedback that you’ve received. How important is it to receive feedback after an engagement and in what form does that usually take? Do you ever have, for instance, an attorney doing jury polls or anything like that? Or is it usually more informal?

Dr. Stephan Athan: It’s often informal, Noah. That’s a great question because I learned something a long time ago. The first thing I do, I preclude every discussion with attorneys with this comment. I say. “Look, we’re on the same team. You’re not going to hurt my feelings. You need to tell me honestly. Give me some feedback. Tell me what I did right and what I did wrong.” When you break the ice like that because they’re professional.” They treat you professionally as Dr. Athan and I like that and I get it. But at the end of the day, we have a job to do and they don’t have time to screw around and so, I get some brutal feedback. I’ve been cautioned on a few things. Most of it is very positive. I’d say 98% of it is positive. They say, “That’s a great thing you do there. I like that. Keep doing that. What did you mean by this? Is it manufacturing or is it fabrication?” “No, it’s manufacturing. Fabrication is a subset of manufacturing.” “Oh. I get it. I get it”. You just have to interact with them because deep down inside, they’re open to learning. They are humble, very humble, but they have a job to do, and that job requires them to be egotistic and back at you and push hard, that’s their job. I wouldn’t hire an attorney that didn’t have those attributes.

My wife was on cases where she deposed law enforcement officers. I’ve been in court when she tore them apart on the stand, but they came up to her and said, “Ms. Athan, that was awesome. I want you to know I was just doing my job.” She would look back at them and say, “Well, I was just doing my job.” It’s about doing our job. If you’re afraid, intimidated, or fearful of doing your job, you need to find something else to do. That’s what this world is all about and in this world, I mean, the patent infringement expert witness world.

Noah Bolmer: Before we wrap up, do you have any cases that you can talk about? You can’t divulge specifics, but what changed the way you approach expert witnessing or were the seminal moments in your expert witness career either good or bad?

Dr. Stephan Athan: I do. I have many. I’ll try to pick one out. I’ll preface this by saying these other cases, the criminal cases, the accident reconstruction, and the medical product prosthetic failure cases, those were different from patent infringement. Those were about finding the smoking gun. I don’t think there is such a thing as finding a smoking [gun] in patent infringement cases. Your weight Is too complex. I have a 10-page glossary here of terms that I review frequently, that patent attorney knows and every expert should know them. These have to do with patents and claim construction.

To answer your question, I think probably one of the most memorable cases I was in was with my wife’s law firm. It was a pro bono case I worked on because we wanted to avoid any conflict of interest of my being part of the defense. It was a state case in Circuit Court. Her client was stopped speeding. It was in Sumter County and long story short, my wife came to me one day and said, “I have a case, and something’s bothering me about this case. There’s something, I don’t know what it is, but can you help me?” I said, “What do you need me to do?” She goes, “He was arrested after being stopped for speeding and I don’t believe they had probable cause to stop him. We have to find a way to throw the probable cause out, because if we could kill the probable cause after stopping him, the whole case goes away.” Well, here’s what happened. He got pulled over for allegedly speeding and this is important. There’s a state trooper and he is asking him questions. He’s leaning in the passenger window and asking the driver questions. The state trooper says, “Have you been smoking? The driver was not thinking and said, “Yes, I was smoking this morning at my house.” Unfortunately, or fortunately, depending upon how you look at it in the State of Florida if a law enforcement officer smells marijuana that gives them probable cause to search a vehicle. The state trooper says, “You just give me probable cause to search your vehicle. I’m going to cuff you. Put you in my car and search your vehicle.” They arrested him for possession. Long story short, my wife came to me and after giving me the facts I thought “Gosh, what do you want me to do?” She said, “He says he was behind a truck.” I’m a radar expert and I know how radar works. It’s Doppler Radar. It’s black and white and you can’t detect the vehicle’s speed if it’s behind a larger target. In this case a big truck. I put together a hypothesis of what I thought happened. I had nothing to go on except my data and I put together what I thought was an effective formable defense. The state attorney deposed me. I went in, I gave my information and my wife said, “This is the best you can do?”  I said, “Yeah, I think it’s a pretty good case.” Then, my wife called me one day and said, “We got the Dash Cam.” Without elaborating, I want to make this short so let me just tell you what happened. I found the smoking gun. I literally found the smoking gun. This is all in the public domain. My entire case and my testimony. It was the only time in my wife’s career where they deposed an expert twice. They deposed me twice, pre-Dash Cam and post-Dash Cam. When they found out what I discovered in the Dash Cam, which was the smoking gun, it set the whole case apart. I’ll tell you what it was. It was a neat nerd engineering solution. We had to find out how fast the vehicle was traveling when the trooper first saw him. Now there are statutes, I won’t go into it, that place certain requirements on state troopers and law enforcement officers that they must do to validate what they were doing.

We’re looking at the Dash Cam and I needed to know speed. I drove up to Sumter County. I was in the middle of the street with a tape measure. I stopped traffic. I’m measuring distances and measuring yellow lines. I was out there on the same day, a year later. Where are the shadows? Where is the sun? I’m looking at all this data and I need speed. I have distance, but I need speed or time. If I have time, I can derive speed because speed is displacement over time. I’m looking at this late one night, it was so exciting. I’m sitting up late and watching the Dash Cam video over and over. Over and rewinding, playing it over, and rewinding. Then I slowed it down. As you slow a video down it shows in what looks like frames. Tick, tick, tick, and then the light bulb went on. Wait a minute, what’s the frame rate of this camera? Well, the frame rate of that camera was 30 frames per second. There was my time and guess what? He wasn’t speeding and I won’t tell you what happened, but what happened later was even cooler. I’ll leave it to your imagination to imagine what could have happened that was better. It was awesome what happened after that. That was a two-part process. The fun part was to find the smoking gun. That’s pure science. You can’t refute that. Even the judge- and I don’t get compliments too often from judges, but that judge complimented me on my findings. In fact, on the way out of the courtroom two attorneys ran up to me and gave me the cards and said, “Call me. We want to talk to you.” You know you did a good job, and it was all science. It was engineering. It was stuff that you are expected to do. That’s your job. Do it. There’s no more rewarding outcome than that.

Noah Bolmer: What an incredible story. In my mind, this was going to the frequency of a flash bulb or a blinker or something like that.

Dr. Stephan Athan: Yes, my wife- God bless her, was so blown away. She said, “Oh my God, I never thought of that.” She goes, “I never-” We were married almost 40 years and she said, “I just didn’t think of it on that level. I appreciate how engineers think they look at the world differently than the rest of the population.” That’s what it was about. It was one of the many serendipitous moments that we had through the course of history. It was late at night. My eyes were folding, and I kept playing the video back and forth and back and forth and I just happened to slow it down enough to where the frames were popping up on the screen. That’s when the light bulb went on and I get excited just thinking about it.

There were others like that. Others were as good many years earlier. But again, in the world of patent infringement, there is no such thing as a smoke gun because it’s a collection of information. It’s claims, and the claims cover a broad range of issues, including prior art. Prior art is a huge thing. What did someone do 10 years before this? Was it the exact same thing? You’ve got all kinds of issues, validity, invalidity, you’ve got all kinds of terms and that’s the beauty of the process. The more you understand the process and the language the more effective you can be.

Noah Bolmer: I do have a follow up question before we wrap. In these technical engineering types of actions, if there is a jury, how do you effectively communicate this to a layperson in a way that they understand? Do you use graphics, or do you just talk about it in simpler terms?

Dr. Stephan Athan: Great question. The single most important part of the process is the jury. This is one thing I feel very gifted at- is the ability to describe complex issues in layperson’s terms. Even working with attorneys, I like using analogies. People can connect with analogies. By the same token, as effective as I believe I’ve been and with all the compliments I’ve been given by attorneys, even opposing attorneys, I’ve seen experts get up there and crash, and burn because they don’t know how to connect with the jury. If you think about who these people are and how you’re connected even by the way you look. We’re human beings. It’s the human experience. You cannot ignore that and the attorneys know this. They know this better than anybody. That’s probably the single most important variable, now that you’ve mentioned it, ask any attorney. If any attorney ever tells you, “I’m not worried about the jury, I know they’re going to come back.” They’re lying to you. No one ever knows what a jury is bound to come back with and that’s a beautiful part of our system, of our process is the jury-based process. I love it. I just think this is such a neat thing.

My wife used to refer to the framers of our Constitution, the democracy, and the written word, and ultimately it’s all about- I’ve seen witnesses crash and burn. I’ve seen defendants crash and burn in courtrooms. I learned something I guess was common sense if you think about it. It’s all about your delivery, your presentation, how you act, and how you behave. I’ll add one caveat to that. The main focus of the opposing attorney is to attack your credibility. What does that mean? It means making you look bad in front of the jury. You’re there to make them believe in you and their job is to show that they can’t believe in you, and to support their case.

Noah Bolmer: Do you have any last advice for experts, newer experts in particular. before we wrap up?

Dr. Stephan Athan: I would encourage experts not to be an island amongst themselves and work with other folks. Don’t be afraid to reach out and ask questions. The worst thing that can happen is to say no. Learn as much as you can. I have to tell you, I work with professor emeriti, I’ve worked with professors. I work with folks in academia and you get an interesting mix. At the end of the day, I think the most effective experts, regardless of their credentials, knew how to play the game. They understand what our role is and I’m going to tell you my eyes wide open in one case two years ago. I was listening to the expert. He was a professor emeritus out of North Carolina and I’m thinking to myself, “What is he doing?” Then it dawned on me what he was doing. He’s doing exactly what he’s being paid to do and what he ended up doing was, and this is an important piece of advice, if you go to write a report and then you’re going to be deposed, the deposition is often about what’s in the report. That’s all you have to stick to, is the report. If they ask you a question that’s outside the scope of the report, you don’t answer it or you refer back to the report. That’s how the game is played.

Most of us like the fact- I think the biggest criticism of the engineers that I’ve read and watched videos is we don’t know when [to] shut up. Stop talking. Just answer the question and by the same token, I remember years ago one of my friends said, “Just don’t answer the question.” That’s the worst thing you can do. You just don’t the question. There’s a way to answer the question and the attorneys know this. They are skilled and seasoned in that, that being connected into that kind of gives you that understanding of what they’re looking for, but at the end of the day it encompasses a broad range of behavior, academics, and intellectual experience and I would not recommend anyone going outside of their area of expertise. That’s the whole point of a subject matter expert. What you are an expert in and sticking to your guns. Tell them I don’t have any experience in that. The hardest thing for me was to say, “I don’t know.” As simple and trivial as that may sound, it took a long time for me to sit in the deposition and say, “I don’t know, I just don’t remember.” Because you want to give them an answer. As an engineer, this is what you’re trained to do, to provide solutions to complex problems, but sometimes you just don’t remember, or you don’t know. You should be true to yourself. After a deposition, we were talking earlier, they send you an errata, things in the deposition that didn’t come out right, were changed or transposed incorrectly. That’s very important because at the end of the day, despite the fact that the jury will never see the deposition, that’s the opposing attorney’s script. That’s the main script that they’re going to be using to attack your credibility.

Noah Bolmer: Sage advice Dr. Athan. Thank you for joining me here today.

Dr. Stephan Athan: My pleasure, truly a pleasure. I hope I didn’t go over too much, but I would love to do this anytime, and good luck to all those experts out there.

Noah Bolmer: Absolutely. Thank you to our listeners for joining me for another Discussion at the Round Table. Cheers.

Dr. Stephan Athan, Owner, Athan Engineering

Our guest, Dr. Stephan Athan is the owner of Athan Engineering, a full-service engineering consulting firm. He is a sought-after expert witness with a wide range of engineering expertise including patent infringement, invalidity, and technical domestic industry products. Dr. Athan holds a Ph.D. in Electrical Engineering from the University of South Florida.