In this episode…

Engaging parties who try and negotiate rates are a red flag, according to Dr. Chris Daft. He believes that budgetary constraints can get in the way of thoroughly focusing on the case, and effectively completing your engagement, which is unfair to the end client, and can affect your reputation.

Check out the entire episode for our discussion on AI’s role in expert witnessing, working before administrative boards in patent disputes, and working remotely.

 

Note:   Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Dr. Chris Daft, Materials Scientist and Consultant at River Sonic Solutions

Noah Bolmer: Welcome to Engaging Experts, I’m your host Noah Bolmer and I’m excited to welcome Dr. Chris Daft to the show. Dr. Daft is an award-winning materials scientist with expertise in medical imaging, semiconductors, signal processing and more. He is a published author and holds around 20 patents. Dr. Daft holds a PhD in Material Science from Oxford University. Dr. Daft, thank you for joining me here on Engaging Experts.

Dr. Chris Daft: It’s a pleasure to be here, Noah.

Noah Bolmer: You have a decades-long career in Material Science. How did you first become involved in expert witnessing?

Dr. Chris Daft: Initially, I worked teaching at the University of Illinois at Urbana Champaign. Then I went into the industry and worked for General Electric and Siemens. I was bitten by the Silicon Valley bug and therefore worked for a number of startups. I was looking for something to balance the meteoric ups and downs of the startup world, which I enjoyed a great deal, but in life as in investing there is value in diversification.

Noah Bolmer: Of course. Were you actively seeking expert witness engagements, or did one show up out of the blue?

Dr. Chris Daft: It was out of the blue. I received some junk mail from an outfit that did courses for experts. I was about to put it in the garbage, and for some reason, I passed it to my wife. She looked at it, read it, and said, “You should do this course.” I looked at it again and decided I would. That was how I learned that there was something called expert witnessing.

Noah Bolmer: You weren’t familiar with expert witnessing at all. That was a completely new thing for you. During your first phone call, what were the questions that you were asked? Now that you’ve had some experience, is there anything you would like to tell yourself like, boy, I wish I had asked a few more questions.

Dr. Chris Daft: Getting a call from an attorney, I’m more organized than I was initially. I try to listen, be likable, but also ask some questions, such as how did you find me? Ask about the names of the parties and opposing counsel in the case because there might be conflicts. I would like to find out if it is a rush job, because that’s a large red flag. If there are budget constraints because I don’t want to be in a situation where the budget is such that I can’t do the best job that I can. That is always my goal and if there is not time or a budget, this may be a good case to pass on.

Noah Bolmer: Let’s talk about those red flags. When you talk about a rush job, tell me what that means to you.

Dr. Chris Daft: Something like, “Our expert just dropped out, and we need a report in a couple of weeks, but there is an enormous amount of material to go through. Would you be willing to take that?” Usually, that is a good indication that I shouldn’t be looking at that case.

Noah Bolmer: Have you found yourself in situations where you’ve accepted the engagement but then realized this is more work than I realized? They overload you with initial materials or it requires more research than you expected. How do you deal with those situations?

Dr. Chris Daft: The expert witness business does require periods of working extremely hard. I’m well compensated for what I do and when the schedule is such that the lawyer is in a real bind, I feel it’s my responsibility to do everything I can to meet deadlines which are often not set by counsel. I’m flexible about it, but if there’s a situation in which it looks like things are disorganized, or an expert has left their case, they’re situations where it’s being set up to have a desperate situation. I know that cases which are well organized by counsel can often get to a place where you’re burning the midnight oil. I don’t want to take a case where we’re starting from that premise.

Noah Bolmer: Regarding budgetary concerns, let’s talk in more depth about that. What are the sorts of language that they use that set something off in you like, boy, they don’t have enough money? Frankly, they can’t afford me, or this is going to take more hours than they have allotted.

Dr. Chris Daft: One is if they quickly begin negotiating hourly fees. That usually indicates that there isn’t enough money to do the case, and they’re in a bind. I have had little trouble, although not zero trouble with getting paid. If the retaining counsel expresses concern about the budget or negotiating the fee, that’s a big red flag. I won’t take the case in that situation because it’s hard enough to do a good job without worrying about whether you’re going to get paid.

Noah Bolmer: Have you turned down a significant number of cases?

Dr. Chris Daft: Quite often because of the area that I work in, which is patent, and trade secret matters. Most often, these are cases involving large law firms and, in those situations, either the rate is okay or it’s not. There isn’t a problem if they take me on. I’m getting paid. It may take a long time to get paid because they’re going to invoice at the end of the month after I invoice. They’re going to wait for their client to pay. The truth is that I get paid in the end, so that has not been much of a concern for me. I’ve only had to turn one case over to a collection agency which did work, but the collection agency took a third of the money that was recovered.

Noah Bolmer: It’s interesting that you say that. I’ve heard from a couple of experts that getting paid is contingent upon their clients paying them. Is that appropriate when your contract is not with the end client? When your contract is with the firm or the attorney, should your payment, or specifically when you get paid, be contingent upon when the client pays them?

Dr. Chris Daft: I would certainly enjoy getting paid faster than, let’s say, three months after doing the work. Honestly, that is our industry practice. The contract I use specifies that I am not working for the law firm’s client. It guarantees I will get paid but doesn’t guarantee when. I was glad in the case where I had a collection problem, to be able to send the contract to the collection agency who read it and was completely confident that that gave them a good basis to be aggressive around the collection.

Noah Bolmer: Speaking of contracts, do you have any specific terms that you put in there? For instance, do you like to take a retainer? Do you use a form contract? Do you have a travel rate? What are some of the terms and conditions that you enjoy using in a contract?

Dr. Chris Daft: I use the contract that is available from The Seek company. It is a good balance between something that an attorney might be willing to sign. Something that represents the interests of the expert. The way I do billing is I tell my clients that I only bill when I am specifically working on their case and nothing else. I do not charge any form of overhead, and I do not charge for time spent traveling. What that does is it allows me to have one number. The simplicity of the billing is useful in getting business. In the contract, it talks about things like a last-minute deposition cancelation. Situations where I may have a real opportunity cost. Those are some of the protections that are useful to have in a contract because things can get a little wacky. Having the retaining counsel, saying something that gives me some leverage if I get jerked around a lot. It’s a good thing.

Noah Bolmer: In an offline exchange, we talked a little about changing logistics in expert witness work, and you mentioned the effect of AI. In fact, you’re going to talk about AI at a conference. Can you tell me about this?

Dr. Chris Daft: The influence of AI on expert witness practice is going to be profound, and I’m interested in how that will play out. [Some] listening to this podcast will have seen the disasters associated with the misguided use of AI within litigation. For example, expert reports are completely excluded because of things like nonexistent citations.

Noah Bolmer: Right.

Dr. Chris Daft: On the disaster side, there are some real values that can be obtained from the skillful use of AI in expert witnessing, and I’m planning to talk through that at this presentation I’m giving.

Noah Bolmer: That’s a fascinating topic. You mentioned you had done a lot of patent work for the ITC. What is an administrative court like for an expert witness? How is it different going before patent examiners compared to going before a typical jury trial?

Dr. Chris Daft: I do a considerable amount of inter partes review (IPR) work. With that, there is an administrative patent judge. I’ve never been asked to testify at a hearing in front of an APJ. In the IPR, my entire testimony is the deposition. The way I think of it is that the deposition is the trial, though the judge is not present. Enjoyable cases are the International Trade Commission ones. I’ve done two of those which have gone to bench trials. The great thing with that is the administrative law judge typically has a lot of technical knowledge. I’ve had the pleasure of having the cross examination- The direct exam is written so that doesn’t happen during the trial but after cross examination I’ve been examined by the judge, which is great. First, these folk are up on technology. Secondly, their goal is a greater understanding rather than trying to trip me up. That sort of testimony is always an absolute joy.

Noah Bolmer: In an engagement, sometimes there is an entire trial team, not just you and the attorney. There might be assistants, paralegals, other expert witnesses, and other attorneys besides the lead attorney. Where do you fit into that process as an expert, and to what extent do you interface with the other parts of the trial team?

Dr. Chris Daft: That’s a great question. It reminds me of one of the ITC cases I did, which astonished me in terms of the degree of coordination required to get all the witnesses on the stand during a five-day trial. Only half of the time was available for the side that retained me. Everything was done minute by minute. It made me think of producing an opera. Not even like producing a TV show where you could do another take if something goes wrong. Everything had to work the first time. I had many tactical interactions along the lines of should my testimony come before or after other witnesses. There were fact witnesses and other expert witnesses every night. There was a war room meeting where we discussed what had happened that day and adjusted tactics for the next day. I had no idea that doing a case in front of the ITC required that level of effort. I felt like my job was a good deal easier than that of the attorneys because I’m there to defend my opinion. They’re there to win, which is a bigger and more difficult task to have. This gave me respect for attorneys who are willing to take this kind of thing on.

Noah Bolmer: Speaking of defending your opinion, you’ve been doing this for a long time. You’re published. How do you make sure to never contradict anything that you’ve ever said in the history of working in your field? Do you keep notes about things that you’ve said? If you change your mind, does the opposing counsel try and impeach you on the stand?

Dr. Chris Daft: Prior to a deposition, I not only go through my report, which in patent cases can be a lengthy document. I also try to anticipate what you’re describing. I haven’t always succeeded in doing that, so I certainly have the situation where in the middle of the deposition I get this exhibit, which is something I wrote before. Fortunately, it’s been reasonably straightforward to differentiate between the opinion in this paper I wrote and what the attorney is trying to trip me up with. When doing their deposition, I always feel like there are two processes going on. There’s the technical issues which I’m confident about. I would never take a case unless I was absolutely confident that my opinion is going to be solid and that I can talk to anything about it. There’s also the legal aspect, which I’m not an expert in and trying to understand why opposing counsel is going down this line of questioning because it doesn’t seem like it has any value to me, yet I must be wrong on that point. Those things are why depositions are challenging, and I never get used to it, but when they put something in front of me that they think is going to be going to trip me up technically, that’s usually on the easier side. I wouldn’t be in the deposition unless I was absolutely confident on my technical position.

Noah Bolmer: Let’s talk about preparing for some of those challenging depositions. Expert witnesses have different rituals. Some don’t eat while others have a big breakfast. Others drink ten cups of coffee or listen to heavy metal. Do you have any pre deposition or pretrial routine that helps you get in the right headspace for what could be potentially a contentious action?

Dr. Chris Daft: Yes, the first thing I do is preparation. I go over my report, which I may have written six months before, so it will not exactly be top of mind. I am rather persistent with retaining counsel on the topic of I’d like you to do a mock deposition. Imagine that you’re the attorney on the other side and you’re trying to make me squirm. Let’s do that. I would like to fall flat on my face in front of the retaining counsel and then do better the next time. That preparation is useful. On the day of the deposition, I have a good breakfast, and I prepare. It’s like a marathon. In the federal cases that I do, there is a limit of seven hours of actual testimony. When you add in lunch breaks and the fact that I will ask for 10 minutes off each hour, that 7 hours extends to 9 hours. I know that it’s going to be a long haul and that skilled opposing counsel may ask all of the difficult questions at the end when I am getting tired. I do try to pace myself and I drink coffee during the breaks in the deposition.

Noah Bolmer: Let’s talk about demeanor. How do you like to present yourself? You mentioned earlier that many depositions are Zoom or telepresence these days. Is it more difficult? Is it less difficult to be working from home? How do you conduct yourself in a way that you’re still connecting with the people that are talking to you and present yourself professionally? How do you present yourself on camera?

Dr. Chris Daft: That’s a great question. I don’t do depositions from home. There is a rental office place a few miles away from me, which has good commercial-grade Internet service. There is not going to be a problem with the video freezing or anything like that. I find that during the deposition in a controlled environment, no one is going to open the door because I’ve rented the room for the entire day, and I find that helps me present myself confidently. Even though it’s a Zoom thing, I will wear a suit and a tie and I don’t care what anyone else is wearing in the deposition. I’m there to give my best and I will dress as well as I know how to. Those things project something to the people on the deposition call, but they also affect me. It’s like a musical performance. I’m going to get one shot at it and I want to do the best job that I can.

Noah Bolmer: Let’s talk about a couple of general topics. You work in a broad and dynamic field. As somebody who is doing a lot of expert witness work, how do you remain current in your field and [stay] abreast of the newest developments in all of the broad areas that you work in? How do you stay current?

Dr. Chris Daft: I’ve never been a full-time expert witness. There have been points at which, half of my effort has gone to expert witnessing, but most of the time my work life is technical. It’s not litigation oriented. For example, five years ago I co-founded a startup which is developing a medical device that is a non-drug treatment for mental health issues. That’s fabulous because it exposes me to an enormous [number] of technical areas. Like you say I’m a bit of a generalist, I don’t do a lot of material science anymore, but I do medical devices, medical imaging, and I’m comfortable testifying about integrated circuits, electronics, and sensors. What I’ve always done is have at least half of my time doing new development stuff. Either being the Chief Technical Officer of this startup or doing technical consulting, which means solving technical problems for engineering clients. Doing that means that I stay abreast of things. I also go to technology conferences, and that’s a great way to stay abreast as well.

Noah Bolmer: Let’s talk about the attorney expert relationship. How do you get off on the right foot and what in general makes for a positive and productive expert attorney relationship so that you’re going to get a call back from them the next time that they need somebody in your field?

Dr. Chris Daft: Certainly, I love when I get repeat business. That is one of the two greatest things about expert witnessing. The other one is when the judge says that my work product has helped them understand the case. I appreciate it when I’ve had judges do that a couple of times. In terms of the relationship with the attorneys, I do a couple of things. One of them is I try hard to not oversell my capability. If they ask me if I am familiar with something and I’m not, I’m straightforward in telling them that I’m not. Maybe that means they get another expert for that part of the case, or maybe I don’t end up working on the case. The worst possible situation would be a case where I feel technically out of my depth. It’s completely worthwhile not getting the business in order to avoid that situation. I tend to communicate often with the attorneys. In some situations where I know that there is a budget constraint, I will tell them beforehand that I’m going to go to inspect this equipment and I’m anticipating the following costs and what do they think of that. It’s much easier to discuss that beforehand than them being surprised about a bill. Usually, I feel that that being upfront, especially if they are trying to steer my opinion. I only have one thing which is credibility and I’m not willing to become part of retaining counsel’s team to get their points made. I need to be upfront when they would like me to say something or an opinion I can’t defend. I want to tell them that before expectations get set so that if my position doesn’t work for them, let’s stop and you can get another expert. That will be better for both of us.

Noah Bolmer: Do you have any stories about cases that have either changed the way you go about doing something particular as an expert witness, or reinforced something that you’re already doing as an expert witness?

Dr. Chris Daft: Yes. This was a situation with a lawyer who was an older woman and I observed the way she did depositions. She would fuss in a motherly way with the expert she was about to depose. She would offer the usually male expert tea and act like she was a secretary, fully getting the expert off guard. Then during the deposition, she would proceed to dismantle their opinions ruthlessly because her mind was as sharp as a razor. This simple trick that she was able to do as an older woman struck me as utterly terrifying.

Noah Bolmer: Excellent. Before we wrap up, do you have any last advice for expert witnesses, particularly newer expert witnesses or attorneys working with expert witnesses?

Dr. Chris Daft: The business of expert witnessing is going to shift in the next couple of years because AI is going to become an ordinary part of how everyone thinks. That is problematic for expert witnesses. For a start, I’m sure that it’s going to become de rigueur during a deposition to ask the expert what use they have made of AI. I’m planning to write that in my reports, so it doesn’t become a point of contention. There are real issues with AI around confidentiality. Even if you turn off the infinite memory feature in ChatGPT the material you provide and the questions you ask of the model will be used for training. That’s a problem for protective orders and HIPAA information that you get in your work as an expert witness. AI is going to hit everything hard. How it interacts with expert witnessing is going to be interesting and unique. Staying on top of that is going to be absolutely essential for expert witnesses going forward.

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

Dr. Chris Daft: It was a pleasure. It was nice to meet you, and I thank you for the great podcast.

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

Dr. Chris Daft, Materials Scientist and Consultant at River Sonic Solutions

Dr. Chris Daft is an award-winning materials scientist with expertise in medical imaging, semiconductors, signal processing, and more. He is a published author and holds over 15 patents. Dr. Daft holds a PhD in Materials Science from Oxford University.