In this episode…
On this episode of our podcast Discussions at the Round Table, Michelle Loux sits down with Mike Slinn to talk about his career and how he wishes he had a better understanding of the differences between client management as a computer consultant and an expert witness. Mike shares knowledge acquired on his first case, the importance of mentorship, and how his experience as a musician improves his performance as an expert witness.
Note: Transcript has been lightly edited for clarity.
Host: Michelle Loux, Assistant Project Manager, Round Table Group
Announcer: This episode is brought to you by Round Table Group, the Experts on Experts®. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.
Michelle Loux: Today’s guest is Mike Slinn. He is an active software, industry, technologist, and executive with 45 years of experience. He has written three books on distributed computing and has taught in university, community college, and commercially. For more than 20 years, Mr. Slinn has provided expert testimony under oath at trial or hearings and for depositions. The scope of his engagements includes opining and providing declarations regarding hardware and software, patents, commercial disputes, and trade secret litigation matters. I am Michelle Loux your host for today’s show.
Michelle Loux: I want to welcome Mike Slinn to our podcast. Hi Mike.
Mike Slinn: Hey there, it is a pleasure to be here. Thanks for such a great introduction.
Michelle Loux: You have a very fascinating career. What I would like to talk about with you is the basis of this particular show, which is what is it that you wish you knew the first time you were an expert witness?
Mike Slinn: Well, I have had a chance to think about that, and it has been an illuminating experience for me to go back and try to figure out an answer to that and I must say it has been very helpful. So, thank you for asking me the question. I have had a chance to digest that, and here is what I have learned since you asked me the question. In a nutshell, I wish I knew how client management, as a computer consultant, differs from client management as an expert witness. When I started as an expert witness, my experience as a computer consultant had been designing and implementing software products, automating business processes, evaluating the work of other technologists, coaching startup founders, and doing technical due diligence for investors. I had worked with at that point, technical people and their colleagues all over the United States, and in Canada. Now it is interesting that as an expert, the areas of law that I have had an opportunity to opine on do not have an exact match with the work I did as an expert. There is a lot of overlap, obviously, but it’s not a one-to-one, and I thought that was surprising. It is just an irrelevant fact that does not answer your question.
Michelle Loux: You did talk about some different types of lawyers. Can you explain what that means?
Mike Slinn: Sure, the Yale Law School has a publication that came out in April 2017 and its title is Law Firm Practice Area Summary and I count 47 types of lawyers in that document. I have had a chance to work as an expert with four of those types’ general corporate, litigation, prosecution, and general litigation. Now, I have also been approached by white-collar crime lawyers for two cases, and while I was not selected as an expert for either of those, I found those to be interesting. One of the lawyers that I spoke with described his client as radioactive and I must admit that was interesting to me. You can read about this person in the news right now these days, but I am not going to mention that person’s name. But I am following that case because I thought how interesting that would be. Now as a software entrepreneur I have also worked with three additional types of lawyers, mergers and acquisitions, security and data protection, and licensing and technology transactions. Then as a semi-professional musician, I have been looking at how could I get mixed up with entertainment law because I find that interesting as well. That opportunity has yet to arise.
I should mention that as an expert witness, many expert witnesses such as myself do not have a formal education in law. So, it is probably not surprising that I found portions of this Yale publication to be misleading. Now I don’t mean to say that the publication is incorrect. Instead, I think that it is a question of false cognates, that is familiar-sounding words, that I ascribe meaning to that a trained person in the area of law would have a different understanding of those words. For example, the description of litigation lawyers reads:
This practice divides into patent, copyright, trademark, and trade secrets. This is a very adversarial practice. The stakes are high, and for technology companies, this can be company litigation. Litigation research involves not only legal issues but also factual issues such as the scope of the market, competitors, and competing technologies and products. These actions are generally not very document-intensive. This practice is good for people who are interested in learning about new technologies, products, businesses, and markets. These attorneys work with experts often. People who dislike IP litigation generally do not like the adversarial nature of the practice or are not interested in technology.
So, I agree with most of that description. For example, the adversarial nature of the work. Now I quite enjoy that aspect, but that is not the case for most technical people.
I think that the documents referred to in their description actually refer to the legal documents filed in the case, and now maybe the number of filed documents per case for this type of lawyer is not high. Some of these documents are monsters. So, for example, the principal challenge that I had in one case that I worked on as an expert was having to go through four long patents together. Together, they were about 1000 pages and they were deliberately worded to allude to anything and everything while saying very little. Reading these documents was hard to do. In fact, the only way I could get through this stuff was to stand up for several days, read them aloud, and write notes after the end of each paragraph. This was for me, pure torture, but I felt it was important because I knew that I was going to be asked in a deposition if I had read this document. The only possible way I could be an expert on this case and provide any value is to say yes to every word. I did and that was expensive. The client paid for a lot of my time to do that. I was asked that question and I did give the answer that I needed to give. My testimony and my report were part of what went towards, invalidating both those patents into inter partes review. So just to say it is not documented intensively, well it kind of depends what you mean by document.
Now, maybe an attorney has a different understanding of that term than I as a layperson would have. So as a side note, Malcolm Gladwell gave a nice keynote presentation with Adam Grant, also in 2017 at the Wharton People Analytics Conference. It is on a similar topic. It is about an hour long and if that interests you, it is on You Tube.
Michelle Loux: Oh perfect. We will have to tag that and put it into our podcast. So, this thousand-page document, would you say that is normal? Do you get many of those or is that particularly for this one case?
Mike Slinn: This patent troll for this case is how they do it. They have kind of a boilerplate and they spew out these documents in some kind of a factory process. It is part of their strategy to just make your mind turn to jelly. It is hard to maintain focus and so anybody who is not exceptionally determined is not going to make it through the document. This is not normal; it is just one strategy that this company employs.
Michelle Loux: Little did they know that Mike Slinn was on the other side. So, let’s talk about your first case. If you can share some experiences and stories about that with me.
Mike Slinn: I would be delighted. Thank you. My first case came to me unexpectedly. The client was a venture capital firm, also known as a VC firm, and they had a big law firm that was working with him so that that lawyer engaged me with a well-written and succinct engagement letter. The client which was the VC firm was concerned that a large software contractor had done a poor job developing software for one of their startup companies. The VCs were considering litigation and they want to know my opinion of the software’s equality. So, before this time, which was 20 years ago, I did not have a good understanding of what an expert witness was or what they did. I had previously acted as a computer consultant for about 25 years, and I was familiar with the technology, but my weakness was my lack of experience managing this type of assignment. I did not know about different types of lawyers and so I did not know how to interface most effectively with the lawyer who engaged me. Now, he was outside counsel, and he was an investment management lawyer, not a litigator, and had I understood what that meant. I did not know that fact at that time, but had I known it and understood what that meant, I would like to think I would have approached things a little bit differently. A mentor would have been helpful to me in that regard. If you are getting started as an expert witness having a mentor is an incredible asset. Later, I did find such a mentor and I was a protege. Since then, the tables have turned, and I have mentored others. It is kind of a guild approach, I think.
Anyway, this was the first time I had ever been involved in a 3-way engagement and the three parties were the VC firm, their law firm, and myself. There was a fourth party, which was their startup, but they were not involved beyond answering questions that I would pose or providing me the software to look at. There was potentially a fifth party which was the software contractor. Had we gotten into litigation, this relationship might have become something I would have had to deal with, but, in this case, that never happened. At the time, I lacked the experience to know that my assignment would have had a better outcome if I contacted the VC firm directly and spoke with them. Now there are rules about how you can do this because this is an expert is meant to be an independent third party, and so this has to be an arm’s length relationship. To have the attorney we would set that up. The attorney would describe the rules of engagement and have notes transcribed. A meeting would be very helpful because you could get hammered in a deposition if this went to trial and things were not done just right. This is also illegal in some countries. I am talking to you about a United States case, and so we are going by United States rules. I have in other cases directly interfaced with the client and that was very beneficial.
The client in one case I am thinking of had lots of advice for me on how to proceed. I mean they meant well. First of all, they should not be saying that, and second of all the advice was off base the whole time, because they did not know how an expert should be approaching things. They meant well but they were damaging their case by offering that advice. I documented that because that is the thing to do. So, I approached this task as many consulting engineers would examine the software. I wrote a report and I worked through several versions of the report with the lawyer. Again, this is not allowed in many countries. The purpose of working through versions is to make sure that it is understood by a layperson. So, the lawyer I was working with who was not a technologist would say so. I read this paragraph here Mike, and here is what it means to me. Is that what you meant? I would say no. Oh, so can you rephrase that? Well, I could say it this way. So, what I just understood was this is that what you meant? No, not exactly et cetera, et cetera. That was the purpose of the multiple versions. Again, that is not allowed in many parts of the world.
I presented my final report as a document. I was not given the opportunity to present it verbally, which would have been normal, and normally there should have been a discussion a verbal discussion and that did not happen either. What happened instead was a boom. The VC brought down the hammer and decided they were going to shut down the company and shut down its investment. Now they put about $3 million in today’s money into this company and they just decided to flush it. I was shocked. All those people would I thought surely, they are going to lose their jobs. Somehow, the software startup survived that trauma and continues today. I like to think that had I known how to handle the matter better. There would have been a different outcome. So, my engagement did not, in my opinion, provide long-term value to the client. They never went to trial. I do not know if the contractor ever knew that they were in the crosshairs of potential litigation. But for there to be long-term value, you would have to expand the scope of the engagement, the question of why this happened, and how can we prevent it? How could we improve was never asked. As a subject matter expert, I could easily have provided that information, but the app would require a great deal more client management skills, which I did not have at that point.
Michelle Loux: You mention international cases, and you were brought forth in the International Court of Arbitration of the International Chamber of Commerce in Paris, France. This was later in your career. How do you prepare for an international case in Paris or, Canada versus the United States courts?
Mike Slinn: On some of the cases I worked on, I have had the absolute privilege of working with probably some of the best lawyers in the world. Without naming any names, they went to great lengths to educate me on the situation and the constraints. I had the opportunities. I had, what was expected as a minimum, what was possible, and that probably was more than anything, the best education that I have had. In this particular case, these attorneys were outstanding. They had a quarterback the guy who was calling the shots at this law firm, who was one of the top guys around and he was not shy about sharing his experience and his advice. I learned a tremendous amount from these people. This was a tribunal of five judges that I had to present in front of. There were seven experts on our side and there was one expert myself who would speak for the combined opinion of all of us. At the end of the case, there was only one expert for the other side. This other expert and myself were brought before the tribunal of five and they fired questions at us and we had an opportunity to respond free form. We would start by letting each other speak, and then sometimes we would get into interrupting and discussion, and this is what the tribunal wanted. They wanted to give us the real truth and they were just going to grill us until we believed something was right. That does not happen in the United States. At least, I have not seen it. I do not believe that it does. You had to be fast on your feet and confident in your facts to be able to say things. The other expert was over-confident. He was confident to the point of being cocky, and he said some really stupid things and I capitalized on that. It was like, thank you. It was a unique opportunity, so I think being a musician and being comfortable performing to an audience, which I have been doing for 50 years stood me in good stead; because to me it is another audience and I have got my material. I practice and I know it. We were up until 2:00 in the morning going over the material and the attorneys like on my side, had their mini tribunal and tried to give me the gears and I failed a lot in front of them, but that was okay because they would coach me. When the real thing came it was easier than what they had put me through. They deliberately over-practiced, and that is the way to do it. Nothing succeeds like excess.
Michelle Loux: Is French your first language?
Mike Slinn: I was born to a French mother and an English father. Everything in Paris was done in English. That is the international language, so I never heard any French.
Michelle Loux: I took French in college, and I wish I had kept up with it, but s’il vous plaît is about all I remember. I was curious about that, because I did not know if you would have an interpreter. If you did a German case for instance, if you did not speak German, do you have an English translator and how that works? Do things get lost in translation? Are you as effective as an expert witness?
Mike Slinn: If it is in front of the ICC, it will be done in English. One of the companies was German and the other one was French, so, it was kind of like World War Three in that sense. But no, that was never an issue.
Michelle Loux: OK, interesting, I want to go back to the first case that you talked about, and you explained to me, if you had just known a few things and done things a little differently. What do you think you could have applied now that you could have done as an expert back then?
Mike Slinn: I have learned that sometimes asking open-ended questions at opportune times can be of significant value if it is done in the right way. Asking a question can be done in a non-threatening way and could lead to two good possibilities. Opening up and directly answering a question, which is now appropriate, for a deposition in court. Sticking to a minimal and direct answer is what you have to do. If litigation has not been decided, and you are trying to understand the facts and context around the case. That is two things that I did not know then. The facts of the case as opposed to the context.
Context can be more important or as important let’s say than the facts; because they color what the facts mean and the import of that. If you are just sticking to the facts as presented to you by the attorney that engaged, you are set up. Now, what if, just imagine the possibility that maybe the questions and the evidence put in front of you are there to lead you to a conclusion. If you do not try to find out all of the context and all of the facts, then you are just a pawn. It would be more appropriate to question how did this happen? Meet the people, ask for extra documents, and push on that. Something that I have learned is to always list these are the things I relied upon within a report to an attorney. Also, a list of documents and people I requested and was denied. It is amazing how things open because; the attorneys understand the game very well. It means you are not naïve.
A naïve literal expert lacks credibility, and I have been up against some in other cases. I am remembering one in particular. A highly credentialed person who was a bit outside their field, but their credentials were truly impressive, and they were just there to act as a mouthpiece for their client. They did not have an original thought and they did not have an opinion because they were not that qualified. They were just there parroting whatever they were supposed to do. So, it is easy when you see this happening to present an alternative independently and to be demonstrably transparent. The other guy’s credibility was blown to pieces and that is why I think we had a big advantage there in the deposition. My deposition versus his. Afterward, there are always rebuttals. He kept on and did not waver. Every rebuttal he would put forward was just a restatement of his opinion without basis, whereas I had a reason, explained how I got there, what the line of reasoning was, and the facts they started from. It was defensible. Nothing he said was defensible.
One way the attorney who engaged me could have helped would have been to ask for information directly from the client. Could I have a conversation with them, please? I would like to learn about some of the subtleties and get face-to-face with them. I think now in retrospect, what was probably going on was that there was a faction within the VC firm that was at war or competing with another faction in that same firm. They wanted to assign blame for this problem to an external entity which was the software contractor who was generating poor stuff. However, you have to ask how was this allowed to happen? What was the process whereby after a lot of time and money is spent suddenly you have a product that is no good? They should have known this before and blame could have been assigned. I think somebody was trying to escape blame and pin it externally instead of saying how about we take this as an opportunity to improve our processes and communication?
We had not yet gone to litigation and it might have made sense for me to switch roles and suggest to the VC firm, when my report came out what might be helpful is to resign as a software expert because you are not going to litigate. You should engage me as a management consultant and let’s figure out how you, as a company can improve, be more profitable, and have a winning situation from this rather than what happened. Everybody lost. If that is done in the right way it could be allowed internationally. But to just suddenly keep your expert hat on and try to do that is not allowed anywhere. There is a certain finesse that would be required in how to suggest it. There is a right time and having a relationship of some sort and meet me at least once. Meeting the people at the VC firm early on would have allowed that to happen, but never having met them would make that transition difficult. From the attorney’s point of view. It does not serve them well and it does not make them any more money unless they are investors in the firm, and I do not believe they were investors in that VC firm. It is important to begin some of those relationships earlier to make a transition.
Now I know that if I am engaged before there is litigation that there are many kinds of outcomes. Most of the times where I have been engaged prior to litigation the cases have never gone to litigation. I would say, at least in my field, if you are engaged before litigation, there is a good chance that you might be able to, if you have the skills, to become a management consultant and use the information you have gained as an expert to cause some good, instead lose, lose, lose. Why would you want that?
Michelle Loux: Can you share with me your thoughts on what you think the role of an expert witness is?
Mike Slinn: Well, that has evolved. When I started, I did not know, and then as I spent some time, I understood what I was told by the attorney that would engage me and they would tell me what my role was. All of them were very clear and it was understood that I was to answer questions that are put before me according to the knowledge and experience that I have, starting from facts, applying a reasoning process, and then having opinions. Now, again opinions are peculiar to the United States and discussions in front of a tribunal perhaps, but that is not allowed in Canada. You are not going to have opinions. They will be thrown away. Answering that question in the United States context, what is the role of an expert? You might have several potential answers depending on circumstances and as always, it is important to state in writing, in your report, and every time that somebody asks you this kind of question. The experts should be willing to change their opinion based on evidence as it arises, so you might have an opinion and then they say well, what if you will just learn that such and such. Oh well. In that case, I have to reconsider in context as I said, which can often be very important.
Now, before litigation has been launched. This is something that I have come to believe in myself. No one has told me this. I have not read this anywhere, but as I have kind of alluded to before litigation has been launched, I think that the role of an expert is different than after. So, the question that was put to me is do we have a case? I should know if we went to court would we be able to substantiate our claim that this software is defective? Certainly, that is important. That is the charge you have been given and you need to directly address that. But to stop without questioning context too much, not being aware of politics, and not inquiring about the political context of how did this happen in the first place is to be naïve, and therefore is to be a tool. If you are a pawn, the value you provide could be negative overall. Everything you say could be correct and your reasoning could be correct based on the information provided, but if you don’t question the source or the circumstance, and I prefer to go up against an attorney, go up against an expert witness who does not have those questions because their viewpoint and understanding is so limited that if they get the wrong facts and they will not understand where the real issues lie.
So, for me, the principal lesson was how might transition in a pre-litigation case from an experienced and perceptive management consultant could provide insight and metrics that could drive clients to change the management process. To illustrate how impactful that might be, here are a few quotes from an article which is entitled Consulting Is More Than Giving Advice. Harvard Business Review published this article in September 1982, so I will just read a few short paragraphs:
The consultant also has a professional responsibility to ask whether the problem as posed is what most needs solving. Very often, the client needs help in defining the real issue. Thus, the consultants first job is to explore the context of the problem.
This is what I’ve been saying. The book goes on to say:
Consultants facilitate learning by including members of the organization in the assignments processes, for example, demonstrating an appropriate technique; or recommending a relevant book often accomplishes more than quietly performing unneeded analysis. With strong client involvement in the entire process, there will be many opportunities to help members identify learning needs. Often a consultant can suggest or help design opportunities for learning about work planning methods, task force assignments, goal-setting processes, and so on. Though the effective professional is concerned with executive learning throughout the engagement, it may not be wise to cite this as an explicit goal. Too much talk about client learning comes across as presumptuous and it is. Learning during processes is a two-way street in every engagement. Consultants should learn how to be more effective in designing and conducting projects. Moreover, the professional’s willingness to learn can be contagious in the best relationships. Each party explores the experience with the other in order to learn more from it. Increasingly, the best management consultants define their objective is not just recommending solutions but helping institutionalize more effective management processes.
That is what I have learned.
Michelle Loux: What is interesting about all this is that it does seem very daunting, but once you swim through the thick of it, it is very beneficial, right? That is about the evolution of an expert witness almost a how-to be the right consultant hired for the job and what you are bringing to the table to your clients. You have written many blog articles on your own page, and we have republished a few of those on our website as well. So, if anyone has an opportunity, definitely check that out under our blog section. You talk about being a musician. Tell me what type of instruments do you play, and do you play locally and for on stage in front of folks too?
Mike Slinn: I have played on television. I played in front of a few hundred people and am still new to Montreal having moved here from California not so long ago. I have been playing guitar for 50 years. Bass and various percussion for 40 years. I play saxophone and sing. I am currently learning to play the harp, which is hard but fun. I blog about the technology that I am using for recording and streaming on my website, which is mslinn.com. I also blog about my experience as an expert witness there. You will see the music videos that I am publishing on Facebook at Facebook.com/mslinnmusic. All one word, no punctuation.
Michelle Loux: You are a true Renaissance man. Thank you so much for being on our show Mike, and if anyone would like to engage Mike, definitely call Round Table Group and check him out on his website as well. Thank you for joining us today.
Mike Slinn: My pleasure. Thanks, Michelle.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Mike Slinn is an expert witness, specializing in computer hardware and software technology. He has been accepted as a software expert witness in US Federal courts and in the International Court of Arbitration of the International Chamber of Commerce in Paris, France. For more than 20 years Mr. Slinn as provided expert testimony under oath at trial, for hearings, and for depositions. The scope of his engagements include opining and providing declarations regarding hardware and software patents, commercial disputes and trade secret litigation matters.
Computers have revolutionized nearly every field of expertise allowing practitioners to gather, organize, visualize, assess, and act on data as never before — each of these developments becoming its own industry. Our computer experts have been retained due to their deep knowledge and experience working as electrical engineers, software engineers, programmers, professors, IP consultants, and more.
Intellectual property is a form of legal entitlement which allows its holder to control the use of certain intangible ideas and expressions. The term ‘intellectual property’ reflects the idea that, once established, such entitlements are generally treated by the courts as if they are tangible property. The most common forms of intellectual property include patents, copyrights, trademarks, and trade secrets.
Software development is the process of visualizing, detailing, designing, programming, documenting, testing, and fixing bugs. Software developers are the creative minds in charge of the entire development process from beginning to end.