David Smith 00:04
Alright, welcome back to the Expert Witness Podcast. I’m here today with Nigel Jones, who has been an expert witness in over 100 cases, has been deposed 44 times, and has testified in court 11 times. He has a bachelor’s degree in mechanical and electrical engineering and has six people working for him constantly. Nigel, thank you for being here. We’re excited to hear about your experience and learn from you today.
Nigel Jones 00:40
Thank you. It’s good to be here.
David Smith 00:44
Alright. The first question I always like to ask is, expert witness work is an interesting field. It’s not one you often hear about as you’re growing up. So, I’m always curious, how did you find out about expert witness work, and how did you get into it? How did you start in this industry?
Nigel Jones 01:04
So, like everyone else, I’d seen news reports about expert witnesses. But they were mainly in fields like medical malpractice. I hadn’t seen much about engineering expert witnesses. I learned more when a good friend of mine, an attorney, told me he used engineers as expert witnesses. But the way I actually got my start was perhaps a little unusual. About 15 or so years ago, DirecTV, a satellite TV provider, was entirely hacked. You could go onto the internet and purchase devices that would allow you to effectively receive DirecTV for free.
And this was very widespread. And DirecTV did something very unusual. Normally, in these sorts of situations, they just go after the people that provide the gizmos, if you will, to steal stuff. When they went out to one of these very large providers, they acquired this company’s customer list. So everybody that they had sold these devices to. And DirecTV turned around and sued every individual. Yeah, this was very controversial, because essentially directly being sent out a demand moment is to these people saying pay us. And we’ll make this go away. If you don’t pay up, we’re going to take you to court. It was very controversial, and lots of people opted not to pay up. 1000s of people individually caused a bit of an uproar in the federal court system, as you can imagine.
Due to this, DirecTV needed engineers to inspect these devices, write reports, and possibly testify. A friend of mine, who I’ve done some work for at the time, happens to have a fairly prominent place in the industry, and he got contacted to act as the expert witness. He then brought me in to help with the analysis of these devices. And so that was my first exposure to expert witness work. I did not do any testifying. I just did some analysis on these various devices, writing reports and so on.
A year or two later, DirecTV’s smart card supplier was sued by DISH Network. So in satellite receivers and cable receivers, there is a smartcard in there, referred to as a continued conditional access module, which says which channels you’re entitled to receive and so on. So DISH networks sued the conditional access supplier for Direct TV, saying that this conditional access supplier had deliberately hacked DISH Network in order to protect their marketplace and promulgated the hack on the internet. And we got involved in that matter. And we divvied up the work between the three of us. And it so happened that the portion I got ended up being the relevant portion. The other two guys’ work was proved to be nothing of significance. And so the next thing I knew, I was the testifying expert in a multi-billion dollar lawsuit. So that’s how I got my stuff.
David Smith 06:32
All right, you were thrown into the deep end on that one. Very good. That’s interesting. At that time, were you doing engineering work on your own before you got into the expert work? Did you have your own company, or were you working for another company in the industry? How did that work?
Nigel Jones 06:59
Yes, I was able to do that because, at that point, I had my own well-established engineering consulting firm. I was mainly doing design work for people, designing circuits, writing code, doing some reverse engineering, and so on. The work was a fairly natural fit for me. These were devices I understood. But, perhaps there’s an interesting addendum to this, which your listeners might find intriguing, David. Now, consider this: it’s a fairly niche marketplace, right? I mean, how often do conditional access system providers sue each other? As part of this lawsuit, I became quite familiar with various forms of satellite TV piracy. It turned out the piracy that was an issue in this lawsuit was no longer leading-edge engineering; the market had moved on. Though I worked for the defendant and we successfully defended the allegations against us, as you can imagine, I wasn’t very popular with DISH Network. But as part of my work on this case, I began to understand the prevalent forms of piracy. So, after the case concluded and the one-year mark for appeals elapsed, I approached the attorneys for DISH Network. This was with Direct TV’s permission, of course. It surprised them when I said, “This new form of piracy you’re dealing with, called ‘free to air receivers,’ I believe I can prove these devices are explicitly designed for piracy.” They were skeptical, thinking they had covered that ground, but I persisted. They eventually retained me, offering a modest agreement to investigate my claim. They were pleasantly surprised by my findings. Subsequently, I was hired by DISH Network for nearly two dozen piracy cases over the next five years, wherein I analyzed these devices and demonstrated their piratical intentions. I’ve continued working for DISH Network to this day.
David Smith 10:24
Wow, that’s great. That’s probably an uncommon way of getting new cases, but it sounds like it really paid off for you to do that work and make that leap.
Nigel Jones 10:36
Yes, that was perhaps not something you come across every day in the expert field.
David Smith 10:45
Absolutely. So, when we were talking earlier, you mentioned that you just have a bachelor’s degree, is that right? You don’t have a masters or a PhD? Has that ever been a problem for you or an obstacle in any way?
Nigel Jones 11:06
Yes, it’s true. One thing I have observed over the years, nobody has ever hired me based on my CV. There, I have run into plenty of lawyers and law firms whose view is, if you do not have a doctorate, you can’t possibly be an expert witness. Well, that’s not true. All my work has really come through word of mouth. So, it’s definitely difficult if you do not have a PhD. For example, many expert witnesses get most of their work through expert search agencies. Out of 100 plus cases I’ve worked on, I have done precisely one case via a search firm. So, and I think that’s in large part because I don’t have a PhD.
David Smith 12:18
That’s interesting. I do find that most of the experts that are on the other side of cases that I work on do have a PhD most of the time, but I have a master’s degree. And my mentor, if you will, just has a bachelor’s degree too, and he’s done, 500, 600, 700 cases over the years. So, it’s not required for sure, but it can be helpful to get you into the industry, or at least get you over those first hurdles in getting retained.
Nigel Jones 12:54
I think, yes, absolutely. I have observed, if you will, one advantage to not having a Ph.D. is that when you get in front of a jury, it’s possible that some jurors think you’re more relatable. So if your opposing expert is a university professor who spends an hour talking about all of his qualifications, his books, and journal papers, and Ph.D. students, and then it’s your turn, and you say, “Well, I’m an engineer, I actually design things for a living,” it’s a very marked contrast.
David Smith 13:48
Yeah, you’re the “Man in the Arena,” if you’re familiar with that quote.
Nigel Jones 13:55
I’m not, but I think I get the gist of it. So, yeah.
David Smith 13:59
Alright. So can you tell us a little bit more about what types of cases you commonly work on? I know, initially, you started out with satellite TV and Dish Network. Is that still the case? Or where has this journey taken you, so to speak?
Nigel Jones 14:22
Yes. So although the TV piracy thing is still part of my work, it’s now a relatively small part. I now work pretty much exclusively in the intellectual property space. So that’s obviously still copyright infringement and piracy. But now I mainly work in the area of patents. And the way that came about is that I have very good software skills, and I have a very good understanding of hardware. And so I was asked to examine the software that goes into various things. And it started becoming apparent to the various law firms that I was really very good at doing this, such that I was ultimately asked to analyze the software in a cellular base station. This would have been around 2009 or 2010, I suppose. And this was a completely new world to me; I had to do a tremendous amount of reading, very rapidly get up to speed on cellular technology. I already had some background in telecommunication, so it wasn’t like I was entering a completely new field. But the specifics, particularly of LTE as it was coming out, were new. Anyway, I rapidly got one LTE case after another, to the point where I’m currently retained on close to 10 or so cases, typically retained by many of the big players in the cellular industry. So I do a lot of work in that space as well.
David Smith 16:49
And so, we actually met working on a patent case that involved some mechanical issues and some software issues back a year or so ago. And so, for a lot of people, different types of expert witnesses have different roles in the cases. And sometimes those roles are smaller; sometimes those roles are larger. So, for these patent-type cases, is that typically a pretty small role, or is that a pretty big role requiring a lot of time, effort, and work on your part?
Nigel Jones 17:26
It’s a very interesting question. So, I would say in a typical, typical patent case, I am probably 75% of the time retained purely to do source code, exactly the software or devices; the other 25% of the time, I’m also doing either infringement or validity infringement. And so, typically, source code review, understanding the patterns and so on, is a much bigger job than doing infringement or validity infringement. It just takes a lot of time to study the source code, work out how products work, and then map that onto claim terms. And so, it would not be unusual for me and my team together to spend two to three hundred hours on a case. And then at trial, I may only be on the stand for 30 minutes. Whereas the infringement expert might be on the stand for four or five hours. But the infringement experts involved in the case prior to testifying might have been just one to fifty hours. So, it really depends whether you’re looking at it in terms of the work before trial or the work at trial.
David Smith 19:15
That’s great. Yeah, in patent cases, there’s just a lot of work that goes into those from all sides. I think some, a lot of experts will work maybe five, ten, fifteen hours on a case, and that, for a patent case, would just not really even get you started. So very good. So, you’ve mentioned that you have a team of people that you work with; can you talk to me a little bit about that? How you do that and why you do that?
Nigel Jones 19:48
Yes. So, I’ve got six individuals who regularly work for me; by regularly, I mean every month they send me invoices, supporting anything from 25 to 150 hours—kind of numbers every month. Why do I do that? Multiple reasons. The first is, there’s just too much work for me to do. Number two, I’ve been very fortunate that the group of individuals that work with me are all really smart engineers; they’ve all basically started their own consulting businesses, which means that they’re good enough to stand on their own two feet right off the bat. And the other aspect is they bring a diverse skill set. So for example, let’s say, hypothetically, I was approached about a patent case involving, say, PCI Express. Personally, I don’t know anything about PCI Express, right? I guarantee you, one of my guys does. So, it allows me to have someone on the team who can very quickly get up to speed on a patent case and quickly provide input to the attorneys in terms of whether the patent claims are good, bad, or indifferent. So to summarize, I need the help; they are really smart, and they’ve got a much broader range of knowledge and experience.
David Smith 22:07
Right, that’s great. A good way to provide more value and get more work done. So, there’s, I’ve heard that there’s an unwritten rule in the legal industry that says something to the effect of everything will be due at the same time. I don’t know if you’ve ever run into that working on all of these cases that you have. But have you had that experience where you have two or three reports due the same week, or two trials or depositions back to back? Is that something that you run into? And how do you handle that?
Nigel Jones 22:54
Yes, so here we are on the 22nd of October, we’re recording this. So, I was originally scheduled to have four trials this month. And two of those trials were at the same time, and then of those four trials, two got moved within the month to overlap again; it is a nightmare. Scheduling is very difficult, and you are at the vagaries of the court’s scheduling. So even when the court says the trial date will be such and such, they can and do just move them very often at extremely short notice. So, that is a huge problem. Having a team of people makes it much more manageable. If it was just me, it would be impossible.
David Smith 24:08
Yeah, absolutely. All right. So, what is it that you find enjoyable about expert work? Why do you keep doing this sort of thing?
Nigel Jones 24:23
So, to me, there are several aspects to it. One is the intellectual challenge. It can be very, very challenging intellectually to grasp what is going on, and you’ve got to do it quickly. Right? It’s not like you can go ahead and take three years to get up to speed on certain technologies. So, intellectually, it’s very challenging, not just from a technical perspective, but also sometimes from a legal perspective. So for example, on a patent case, if you’re working for the defense, truly understanding the patent claims and terms and seeing if there are weaknesses in those claims, it’s a very intellectually challenging exercise. So that aspect of it, I enjoy. I’ve also always enjoyed teaching, really explaining difficult technical concepts to people. And that’s the way I view testifying to a jury. It’s like explaining to lay people really complicated concepts and doing it in a way that hopefully, they can understand what you’re talking about. And I find that aspect of the work enjoyable.
David Smith 26:17
It takes a special skill set to be able to do that, to be able to relate the complicated engineering principles to people who just don’t interact with that on a day-to-day basis. So, it is a challenge, and it is fun to see that light bulb click in their head when you’re talking about it, and they finally grasp what’s going on.
Nigel Jones 26:40
David Smith 26:43
Very good. So, kind of on the opposite side of that, no job is perfect. What are some things that are frustrating, annoying, or difficult about doing expert witness work?
Nigel Jones 26:59
You’ve actually alluded to it earlier. The biggest issue is scheduling. And I’ll give you an example. One of the four trials that I was supposed to have in October got arbitrarily moved to the middle of November, slap bang in the middle of a long-scheduled vacation. And that is very annoying, not just for me, but for the other people involved. The scheduling and the time pressures of some cases can make it difficult to do the job the way you want to. If you’ve got a task that is a 100-hour task and you’re being required to do it in 10 hours, then it’s a problem. I’m fortunate now in that I have a good relationship with enough law firms that I typically get involved very early on in cases. In fact, when interacting on the plaintiff side, it’s common for me to be retained before the case is even filed. So that really helps with planning time allocation, as opposed to, “Hey, you need to deliver a report in two weeks.”
David Smith 28:45
I’ve been there before. Absolutely. All right. So, have you ever been reviewing information for a case and found out that you’re definitely on the wrong side? And if you have, what did you do?
Nigel Jones 29:06
Yeah, so it really matters. This is a bit of a difficult one. For your listeners who don’t understand much about patents, in general, there are at least three or four different ways to win or lose a patent case. Generally, patents have to be valid; they have to be infringed; they have to have value, right. For example, if you’re working for a defendant, you may look at the patents and say to the client, “You’re infringing, right. This is what you do.” Now, that doesn’t mean that the case is over; it just means that, from their perspective, if they choose to believe you, they need to concentrate their defenses on whether the patent is valid or whether it’s valuable. Conversely, when I’ve been working for plaintiffs, I’ve looked at defendant systems and reported back, saying, “They’re not infringing.” So, I had a very smart lawyer tell me once, “Nigel, that’s not what I want to hear, but it’s what I need to hear,” which I thought nailed it. That’s the way these things go.
David Smith 31:01
Absolutely. I find that most attorneys really appreciate an honest and truthful assessment. So, you’ve been deposed a number of times and been to trial. From what people see on TV and stories that they might hear, trials are often viewed as serious and well-planned-out events. I find that that’s not always the case. So, have you ever had a particularly light-hearted or funny interaction during a deposition or trial?
Nigel Jones 31:47
Not during depositions. I was told fairly early on that humor does not come across well in a deposition transcript. So, I can’t say I’ve ever had an amusing deposition; they are extremely dry. In court, a little bit of humor, intentionally or otherwise, can go a long way in making the day more palatable for the jury. I can’t really say that there’s been something shattering funny that I could recount here. But I did witness a lawyer meltdown on the stand, and I wouldn’t call it funny, but it was entertaining, at least. The damages expert on the side I was on had just finished his direct examination and was being crossed. The cross-examination, I thought, was very good and very effective. The attorney doing it was making some good points. And then he said to the expert, “Sir, have you ever had a Daubert motion granted against you?” So, David, do your listeners know what a Daubert motion is, or would you like to explain that?
David Smith 34:10
I would assume that most of them know what that is.
Nigel Jones 34:14
So, our experts said, ‘No.’ And he turned and said, ‘Well, that’s just not true, is it?’ I know this expert fairly well, and he was quite indignant. ‘It absolutely is true. You’d think I’d know if someone had granted gamma machines.’ So he then said, ‘Well, what about such and such a case?’ This was a current case that this expert was working on. It so happened that he was working on that case with the same attorneys that were at trial, right? So in other words, the attorneys knew about this case, he knew about this case. And here he’s been accused of having a Daubert motion granted against him. And so the attorney says, ‘Well…’ and our expert said, ‘And by the way, how would you even know that? Because the Daubert motions, in that case, were all filed under seal. So how can you possibly know the outcome of these Daubert motions?’ You’d think at that point, the attorney questioning him would have some alarm bells ringing, but no. He was bound and determined to go forward. And so he said, ‘Well, in that case, how do you explain it?’ He brings out this piece of paper, slaps it on the table. We all look, and it clearly says, ‘Motion to grant sealing of the Daubert motion is granted.’ This poor attorney, I assume some junior associate had looked at this and seen the motion to grant the sealing and interpreted that as a motion to actually grant the Daubert motion itself. We just saw the color drain from the attorney’s face as he read what he had put there. And, needless to say, this was supposed to be his ‘big fish,’ the chance to eviscerate the damages expert. Instead, it blew up in his face. The attorneys on our side jumped up and just went to town. To make matters worse, this was literally the last thing of the day. So the jury was going home, and this attorney had just completely destroyed all the great work he’d done on cross-examination by failing to read this piece of paper. The atmosphere in the courtroom was just, I can’t even describe it. But if the jury understood, they would know that this lawyer had made an incredible faux pas. That was one of those interesting times, for sure.
David Smith 37:41
Yeah, that does sound like a bad note to leave the jury on, or a good note, depending on which side you’re on. That’s a great story. All right. So if you were going to give someone who had just been retained for their first case a piece of advice, what advice would you give them?
Nigel Jones 38:06
Yeah, so it’s actually a very apropos question because a couple of members of my team are having their first deposition soon. So I give them several pieces of advice. The first one is remarkably straightforward: Tell the truth. Right. It’s frustrating that I’m shocked that you even have to say that, but at the end of the day, tell the truth. Right. I mean, that’s rule number one. And if you can’t abide by rule number one, you’re in trouble. So I think that’s the first and foremost piece of advice. Secondly, I tell them not to offer any opinions or anything that they are not 100% comfortable with. So if you find yourself being pressured by attorneys to take on positions that you don’t hold, refuse. Attorneys are not your friends. I have unfortunately seen some attorneys pressure new experts into taking positions that they have no business taking. So, you know, that’s number two. Number three is really when it comes time for deposition, you need to treat the deposition as if you’re preparing for your finals in university. You’ve got to know your subject matter. We can get into all the issues about conducting depositions. But fundamentally, tell the truth. Do not be pressured into taking opinions that you don’t really hold, and prepare like crazy for your deposition.
David Smith 40:21
I like it. Very good advice. So we’ll find that most experts would like to be involved in more cases. What have you found to be the most effective marketing technique, or the best way to get new cases? And we talked about this a little bit earlier. But anything else you would add to that?
Nigel Jones 40:46
Yeah, I don’t think I’m very typical, as I mentioned. I don’t get any cases through search firms or whatever. For me, it’s entirely word of mouth. So, to a certain extent, it’s self-evident. If you do good work, you’re likely to get more cases. You can occasionally be proactive, like the story I told about DISH Network. But at the end of the day, you know, what does it mean to do good work? I think it’s a really good question. In some ways, it’s obvious what good work is, and in others, it’s not. I’ve already alluded to the fact that telling lawyers what they don’t want to hear, but need to hear, is a very big element of doing good work. The reason I think that helps with more work is that when you tell an attorney, “Look, you don’t have a case here,” for various reasons, if they come back to me later with another matter, and I say, “I think you’ve got a really strong case here,” they believe me. They know that I tell them the truth about what I really think, as opposed to just telling them what they want to hear. So there’s definitely an element of that. I can also offer another perspective. You can think of every deposition as a job interview. I have been retained by people who have deposed me multiple times. They may have been unhappy with me in the present matter, but a year or two later, when they have another case, they think, “Who do I know?” and they remember me. This has been the case with many of the biggest IP law firms. In almost every case, they were introduced to me as adverse witnesses. So if you think about depositions as job interviews, it’s not a bad way to build up your business as well.
David Smith 44:30
That’s true. It’s probably an underutilized one. I had a very similar experience earlier this year. It was a really nice compliment after the deposition. It was a bit weird because the attorney who had retained me attended via Zoom, but the attorney who was deposing me came out to Idaho and did it in person. So it was me and that attorney in person, and my attorney was on Zoom. After the deposition was over, and my attorney had signed off, the deposing attorney said something to the effect of, “I hate to say this, but you did a really good job. I hope we can work together on a different case in the future.
Nigel Jones 45:13
Yeah, I had a similar experience. So that was one attorney who was with a major IP law firm deposed me for the third time. So three different cases, he deposed me and he was a nice guy. At the end of the third deposition, I turned off the record. When I spoke to him, I said, after a while, we ought to do this with you sitting on the same side of the table as me, words to that effect. Yeah, you’re right. Six months later, he hired me. So that’s good. It’s an effective way.
David Smith 46:06
That’s great. So this is an interesting question, maybe a little more personal. But what has adding expert witness work to your offerings done for you and your life and your business? I think it’s been a positive addition, negative addition. How’s that affected you?
Nigel Jones 46:27
Yeah, I mean, I think in general, it’s been positive, in the sense that it’s certainly allowed me to grow the business significantly. The problem we had doing your regular engineering consulting work is that a typical project would be a multi-year project, which was great. But then, when the project was over, it was a challenge to get overlapping projects and continuity. With the legal work, because each case is somewhere between 100 to 104 hours, you can have much more overlap and continuity in things. So from that perspective, it helps. The downside is the timing. The scheduling required for the legal profession is challenging.
David Smith 47:53
Yeah. Understandable. All right. I guess the last question is, how can attorneys find you if they’re looking to get in touch?
Nigel Jones 48:03
Yeah, it’s interesting. I actually got retained on a case just a few months ago, and it was the first time in five, six years that I was actually contacted via my website. I spoke to the attorney, and I said it was interesting because it was a law firm that I’d never worked for before but which I’ve been adverse to on multiple occasions. So my assumption was that they knew of me from being adverse to them. Now, I just, he was looking for a DMCA expert, Digital Millennium Copyright Act. This is all the television stuff I do, things I’m certainly very knowledgeable in that area. So he said, I just Googled DMCA expert and found me personally. I was quite shocked by that. So that does happen once in a while, but typically, attorneys find me by word of mouth. It’s just the way they do it. They occasionally do it by searching for similar cases. But you know, the reality is in the IT marketplace, as opposed to the life sciences side of things, I now know lots of attorneys. I mean, I joked I was building an ITC evidentiary hearing earlier this year. I knew half the attorneys in the courtroom. This is crazy. So, but I recognize that I’m slightly unusual in that regard.
David Smith 50:02
Well, Nigel, Thank you. This has been both fun and informative. I appreciate your time. I appreciate you being here with us today.
Nigel Jones 50:11
You’re welcome. Thanks for having me. All right, take care.
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