In this episode . . . 

According to expert Dr. Jeffrey Miller, initial phone calls will not always reveal the intricacies of the case. Beyond competence in your field, the hiring attorney is considering your demeanor, whether you will mesh as a team, and whether your opinion will be useful in obtaining a favorable judgment for the client. A confident, professional presentation is as important as subject-matter expertise.

Check out the full episode for our discussion on assistants to experts, Zoom demeanor, and being unafraid to say, “I don’t know.”

 

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Dr. Jeffrey Miller, Dean of Engineering and Computational Sciences, Southern Utah University

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host Noah Bolmer, and today I’m excited to welcome Dr. Jeffrey Miller to the show. Dr. Miller is the Dean of Engineering and Computational Sciences at Southern Utah University. He’s a sought-after expert witness with considerable experience in point-of-sale systems, driverless vehicles, trade secrets, and software in general, Dr. Miller holds a Ph. D in Computer Science from USC. Dr. Miller, thank you for joining me here today at the Round Table.

Dr. Jeffrey Miller: Thank you for having me.

Noah Bolmer: You’ve been in academia for over 15 years now. How did you first become involved in expert witnessing?

Dr. Jeffrey Miller: My Ph.D. advisor did some expert witness work and he pulled me in to assist with him on two cases when I was his student. I absolutely loved the work that I was doing. Obviously, I was compensated very well. I asked him, as I was helping him with his cases, “What does it take to be an expert witness?” His very candid response was, “More gray hair than you currently have.”

Noah Bolmer: You hit the ground running. Did you enjoy your first experience? Did you feel prepared for the initial phone calls with the attorney, for depositions, and anything like that or were you out there in the water?

Dr. Jeffrey Miller: In the first two cases where I assisted my Ph.D. advisor, I wasn’t involved in any attorney phone calls. I was just assisting him. It wasn’t until about 10 years after that when I was retained as the expert witness on a case, and I was thrown into the deep end of the pool.

Noah Bolmer: Did you find that it was useful to have already assisted on some cases before that?

Dr. Jeffrey Miller: It was useful to have assisted because I knew what to expect. Even though I hadn’t been as involved as I was when I was retained as the primary expert, I at least had an understanding how to answer questions that the attorneys provided, how to go and find things out, and how the attorneys assist in guiding what you’re doing.

Noah Bolmer: Is that something you’ve paid forward? Do you now retain other people to help assist you during your engagements?

Dr. Jeffrey Miller: There have been a few cases where I’ve been retained and utilized other people. There are some cases where I work on a team of experts as well. It depends on the individual case whether additional people help or not.

Noah Bolmer: Tell me about working on a team. Do you jointly prepare expert witness reports, or do you each have your own lane and don’t interact very much? How does that work?

Dr. Jeffrey Miller: It’s always based on the case, but from what I’ve seen in the cases I’ve been on with teams, it’s still my expert report. I have other people who can help gather information, but ultimately, the opinions that are expressed have to be mine and I have to be able to defend them. It’s a joint effort in preparing the reports, but ultimately it’s still an individual who’s going to be deposed.

Noah Bolmer: Of course. I meant more in terms of when you are working on a trial team with other experts. There might be different types of experts on a case. In those sorts of situations, is it interactive, or does everything kind of pass through the attorney?

Dr. Jeffrey Miller: The attorney is going to be involved in any communication between experts, so that’s a privilege that’s going to exist. How much I interact with the other experts is a call for the attorneys.

Noah Bolmer: Absolutely. Let’s talk about your profession. You are in computer science. Have you worked with AI as it pertains to expert witnesses, either in terms of it being useful for helping draft or correct expert witness reports or even as a topic of cases?

Dr. Jeffrey Miller: I’m seeing some cases where we’ll discuss AI, with one of my areas of expertise being driverless vehicles. There is a lot of work with AI and machine learning happening in those fields. However, many of the cases on which I’ve been retained have been patent litigation cases, and those usually are not for patents that were filed recently but filed 10 to 15 years ago. I haven’t seen a huge influx of cases dealing with AI, but there was a smattering here and there. I have not worked with preparing expert reports using AI and it’s not something that I’m planning to do either. Reports need to be original work and they shouldn’t be generated by AI. That’s my personal opinion.

Noah Bolmer: When you were first getting started, did you have somebody show you the ropes? In other words, what is the process like when you’re a new expert witness? You were brought in on a case to assist, but did somebody give you a rundown on what the process will be? Is that something that’s beneficial to experts in general?

Dr. Jeffrey Miller: That would be hugely beneficial. I did not get that when I was assisting on the cases. I didn’t have an understanding of the entire case. I was given specific tasks and then asked to come back a week or two later. We discussed more, and then I got another task. The first case that I was retained on as the primary expert was trial by fire. Fortunately, it was a large case and there were a number of attorneys that were working on the case. I had close to a dozen attorneys that I was working with in different capacities. I was able to ask questions of each and hopefully not overwhelm anyone individually by asking one person a lot of different questions.

Noah Bolmer: Is it important for expert witnesses to take a proactive approach and make sure that they are asking questions rather than assuming that the attorneys will inculcate them with all the knowledge that they need?

Dr. Jeffrey Miller: I have found that is extremely important. The legal section of an expert report says this is my understanding of copyright, trade secrets, patents, and so on. Having that is important to refer back to because the attorney on the other side wants to ensure that the opinions you’ve reached align with what the law says. If you don’t understand what the law says, then they start to question whether those are your opinions or the opinions of the attorney that you’re working with.

Noah Bolmer: How do you [ensure] that you remain completely neutral as an expert witness? As you know, the expert witness’ duty is neutrality, and the attorney’s duty is obviously to the client. Is there any push and pull where you have attorneys who want your answer to be A, but your answer is B?

Dr. Jeffrey Miller: I think that may be the case. I have been very fortunate with every attorney that they say, “These are your opinions, and you have to make sure that what you’re saying, even if it’s not in the best interest of the client, is truly your opinion.” I’ve been able to express that. Usually, what happens is if I were to talk to the attorneys, because this isn’t necessarily something that would come out in a deposition, the attorneys would know what my opinions are prior to the report even being submitted. Then it may help them to focus their case based on what I’m saying as you said, as a neutral expert being retained by a client, but as a neutral expert. Then the expert on the other side of the case is not going to have anything to rebut.

Noah Bolmer: Is an important part of the vetting process that the attorney makes sure that you are an expert in your field and that your opinion aligns with their client’s needs?

Dr. Jeffrey Miller: That’s a really a good question and one I’ve thought about a lot, but at the point you get retained, you haven’t done a thorough review of everything that has already happened in the case. It’s usually after one or two, maybe 30-minute to one-hour meetings with the attorneys. I don’t know if they have a clear understanding of what the opinions are going to be. What I think they get an understanding of is my demeanor, how I would handle a deposition or a trial and that I’m competent in the field considered- you know, hopefully to be considered an expert in whatever the area is of that case.

Noah Bolmer: Obviously, during those phone calls, it is kind of a 2-way vetting process. You’re vetting them as much as they’re vetting you. You don’t have to accept an engagement. Do you tend to turn down any significant number of engagements, and if so, what are some of the reasons you turn them down?

Dr. Jeffrey Miller: I have turned down a few engagements and primarily because of the attorneys. As you said, I have to work with that person too, and I have to believe in them. Our personalities have to mesh. I’m going to be spending a good amount of time working with them. I also want to make sure that I’m comfortable that they are competent in the field. Now, I realize they’re not the experts, but they need to have a background in whatever the area is, or they’re at least willing to get up to speed at the point they’re trying to retain me. They know more about the case than I do and probably will throughout the entire engagement.

Noah Bolmer: What are those factors? Besides mere competence, what leads to a positive relationship between the expert and the attorney?

Dr. Jeffrey Miller: When you’re hiring somebody to work with, which I think is the most important asset that you have in any organization, you have to make sure both sides get along. That their personalities mesh. That you’re able to talk and that one person is not dominating over the other. One person isn’t just completely driving the conversation, saying, “Here’s what we need to have happen.” That’s not an expert witness engagement. I need to review all of the information I’m going to draw opinions from that through consultation and meetings with the attorneys and possibly many other people who are part of the case.

Noah Bolmer: Speaking of meetings with attorneys, have you been in virtual meetings as part of your expert witnessing work?

Dr. Jeffrey Miller: Almost exclusively.

Noah Bolmer: I assumed that would be the answer, but I want to hear about that. You’ve been doing this for a while. Has that changed throughout your expert witnessing career?

Dr. Jeffrey Miller: No, it’s the meetings with the attorney because they are frequent, and attorneys are located all around the country. The majority of the cases on which I’ve been retained are federal cases, so the cases could be filed anywhere in the country, and the attorneys could be located anywhere in the country. Most of the meetings are virtual. The ones that are in person typically, are going to be as you’re getting closer to deposition or trial. The preps, because the attorney is going to be in the same location as you, and then you meet in person. It’s always fun to meet the three-dimensional version of someone you’ve been talking with for six months or more.

Noah Bolmer: Of course. Is there an impact on virtual meetings? Does your demeanor change? Does the way you interact and connect, is it different not only with your attorney but with some of the Zoom court stuff that goes on? I’ve heard of virtual depositions happening. Do you have to handle yourself, or are there any additional considerations when meeting virtually?

Dr. Jeffrey Miller: As far as virtual meetings with the attorneys, I don’t know that there’s much of a difference. One of the things that I’ve seen with virtual meetings, especially with large numbers of people, is that not everyone is focused in the meetings. It’s not typically a large meeting, but second of all, what’s happening in the meeting is very important. It’s not just disseminating information, as you may have in a corporate meeting, but there’s a lot of interaction that is happening. I think that in-person meetings would be similar, where you’re focused on the conversation, what’s going on, looking at things, and then discussing them. The virtual depositions, on the other hand, because I have done a number of virtual depositions as well as in-person depositions, there is a different demeanor that has to take place there. Because there’s a slight delay that you have with video. You have to make sure that your attorney has an opportunity to make objections, to interject if there’s something where he needs to say, “This is a question that is infringing on attorney-client privilege. Don’t answer that.” If you’ve started talking and you missed that, then that becomes part of the record so it’s important that the timing is a little delayed to give the attorney the opportunity to make objections.

Noah Bolmer: It’s my understanding that some courtrooms don’t necessarily have the fastest and best Internet connections and cameras either. That delay can definitely be significant. Let’s talk a little about your preparation methods when you’re going into a deposition or preparing for cross-examination. What things work for you?

Dr. Jeffrey Miller: Make sure you block off time close to the deposition or when you’re going to be questioned about a report that may have been submitted months prior. It’s important that you take time to review the report and your opinions, as well as all of the other documentation that you may have referred to or relied on to form those opinions.

Noah Bolmer: When it comes to actual cross examination, are there strategies that you find that the other side will use sometimes to trip you up or throw you off your game? Do you have methods that can help counter some of that?

Dr. Jeffrey Miller: Especially with depositions. Trial testimony is different because you’re on the stand for a certain amount of time. As long as the questions are being asked, it’s different. Typically, you’re not going to be on the stand for seven straight hours in a trial, whereas with a deposition, seven full hours of questioning is allotted. The reason attorneys have strategies is that they’ve worked them at some point or in general. They’ve asked questions early in the morning and then again at four in the afternoon to see if your answer is the same. After lunch, many people have a low, and they hit them at that point with some of the more challenging questions or try to get specific sound bites from. It’s important that you’re on your game the entire time because you don’t know when that’s going to come up. Some attorneys will follow your report and go through section by section, paragraph by paragraph, and ask questions on that. Other attorneys like to jump around, and you may or may not think that is a good strategy, but as they’re jumping around, it’s not giving you a cohesive way of following along knowing, “Ok, the next section is going to be on this.” It’s a little challenging.

Noah Bolmer: One of the things mentioned before is that you do a lot of work in the federal venue. What other venues have you worked in and are there differences that expert witnesses should be aware of and maybe question their attorneys about when going into a new or unfamiliar venue?

Dr. Jeffrey Miller: I don’t think the specifics of what I do as an expert change based on the venue because I’m still looking at material that I’ve been provided with, requesting additional material using my own sources, and then drawing opinions. I think that’s the same. I haven’t seen a huge difference in that across the different venues. However, what does the format of a report look like or the declaration that’s being submitted, or does it go in the- you know, the formatting? Is the formatting just me typing free form, or is it numbered with each paragraph getting its own unique number? This is where the attorneys fit in as well, and the different venues IPR, PGRs for patent litigation, Federal, District Court, ITC, arbitration- I’ve been in some university cases as well where it’s been local to a university that has then progressed perhaps to state court. There are different rules for each one of them as well. I’ve also been in administrative court and it’s interesting to see when I’m talking to someone and they say, “Well, the disclosures on the experts on the other side have not happened yet.”  And I say, “The trial is like two months away. How do we not know who their expert is or what they’re going to be saying?”  And then, “That’s this venue.” For others, it’s months or years in advance.

Noah Bolmer: Absolutely. Do you find that attorneys are good about making sure that you’re prepared for those eventualities?

Dr. Jeffrey Miller: I haven’t had any issues with that. Obviously, as you said, the attorney is working for a client, and ultimately they’re trying to win for their client. The more they can prepare me, the better job I am going to be doing for their own client.

Noah Bolmer: You mentioned arbitration. Does alternative dispute resolution present any additional considerations for expert witnesses or is it pretty much the same as getting deposed in court or going to court?

Dr. Jeffrey Miller: Again, I haven’t noticed a huge difference. The arbitration cases I’ve been on are panels rather than a single judge. You have three people hearing the case instead of one. That’s a little different because you could possibly have three different people with authority who may ask questions as well.

Noah Bolmer: Let’s talk about billing. Are there any specific terms that you would like to include in your contracts? Do you take a retainer? Are there any lessons that you’ve learned about getting paid that would be helpful to newer expert witnesses?

Dr. Jeffrey Miller: There has only been one case in which I’ve been retained, but I did not receive payment. It was a very small case, a few hours, and then it settled. It wasn’t a huge investment of time. For every other case on which I’ve been retained, I haven’t had any trouble getting paid. Whether it’s in a timely fashion or not, is a different story, but I have been paid.

Noah Bolmer: With many cases moving to settlement, do you like to make sure you get some of that money upfront?

Dr. Jeffrey Miller: I usually talk with the attorneys, and if I’m being placed through a placement company, I ask what their opinion is on that. I have been retained on cases where I have received a retainer. And then, on a number of cases though, especially with a larger law firm or larger company, I haven’t taken a retainer.

Noah Bolmer: Have there been any cases that have fundamentally changed the way you go about expert witnessing or in some way informed the way you go about expert witnessing? Obviously, you can’t always divulge specifics to the parties, but in general, have there been those sorts of cases that you’ve worked on?

Dr. Jeffrey Miller: As you get into doing your job, you form your own opinions, not the legal opinions going into the report. Looking at everything that’s in front of you, and it’s hard not to put yourself in that judge position. “If I were the judge, what would I say?” I think that’s a dangerous path to go down because you’re not. As an expert, also, I don’t know all the details of the case. I know what’s been provided to me, I know what I’ve looked up on my own, and the research that I’ve done. I’m the wide receiver in the game, right, I’m not the quarterback. It’s the attorneys who know everything. It’s also important to stay in your lane and understand that.

Noah Bolmer: That’s interesting. I have heard that from other experts. I only have my little part of the case. I don’t know the totality of the circumstances because they would have to pay me to read everything that would not be important to me. When you said you occasionally have to do some outside research, that’s interesting to me. What sorts of research? What sorts of things do you look for that are not provided to you directly by the attorney?

Dr. Jeffrey Miller: Usually, to help justify something. So maybe I’m referring to a textbook, to say, “Well the best practice in this field says . . .” and then you cite something from a well-known publication. So what happens then is that is no longer me saying, “No this is how it should be done.” Which, as an expert, I can say. But to have this peer-reviewed publication that has been agreed upon by so many people and referenced “x” number of times draws even more credibility, and it also shows, for me, that I’m not only relying on what I think. I’m relying on things that are well-known in the field.

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses out there?

Dr. Jeffrey Miller: I think what’s important is even though you’re an expert and you’ve been determined an “expert” there is so much that you legally don’t know. It’s very important to ask questions and not feel as if, “I should know this. I can just look this up on my own.”  Because a lot of the law is interpreted and it’s important to make sure that you and the attorney are on the same page with how a specific law, for example, is being interpreted. I think that’s important. Also, even though one of the areas you said at the beginning of this call, “I’m an expert in general software.” Obviously, there’s things about software that not every- you can’t know everything about everything, and it’s okay that you don’t. What you need to make sure you know is what you’ve put into your reports though. You have the opportunity before you write the report to look these things up and say “Yes, this is what my opinion is” and then you can defend that. There’s nothing wrong with saying, “That’s outside the scope of my report. I don’t have an opinion on that.” That’s OK to say.

Noah Bolmer: Sage advice. Dr. Miller, thank you for joining me here today at the Round Table.

Dr. Jeffrey Miller: Thank you.

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

Dr. Jeffery Miller, Dean, College of Engineering and Computational Science, Southern Utah University

Dr. Jeffrey Miller is the Dean of Engineering and Computational Sciences at Southern Utah University. He’s a sought-after expert witness with expertise in point-of-sale systems, driverless vehicles, trade secrets, and software. Dr. Miller holds a PhD in Computer Science from the University of Southern California.