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A (Hi-Tech) Letter From America

Special Reports

by Ian Cullimore PhD

I have only recently subscribed to The Expert Witness, and it occurred to me that since most of the activity seems to be to do with medical and dental (nothing wrong with that), that you The Readers might like to hear about a slightly different perspective – being a hi-tech expert witness.

My background is very much in software and hardware, startups, palmtop computers, PDAs, mobile phones, low power devices, and that sort of thing – and for the last few years now 'IoT', or 'Internet of Things'. Whilst I am generally based in the UK, I have spent much of my life working and living in California's Silicon Valley.

To tell you the truth I never really actively sought out Expert Witness roles. My first encounter was a bit of a baptism of fire. Way way back in 1986 I was working for Psion in London (if you remember them – Sinclair Spectrum games, the Psion Organiser PDA handheld computer, and all that) as one of their earlysoftware engineers. Having started there as a games programmer I had been drafted into the small team working on their first PDA product. I recall that I was hanging around the office working on some software bits and bobs when, unexpectedly, in walked Her Majesty's Customs and Excise. Apparently they had just done the country's biggest heroin drugs bust at the time, and the ringleader had been using a Psion Organiser to record some drugs transactions, although deleting the records (or so he thought). I (stupidly?!) piped up “oh of course you know they're probably not really deleted, only flagged as so” and the next thing I knew (well, many months later, having done some computer forensics work) I was up in the dock in Court Number One at the Central Criminal Court – good grief, the Old Bailey of all places – giving evidence. And the next thing I knew, to cap it all, at the end of the trial (with convictions handed down of many years) the story broke big-time and I was being interviewed by the BBC, ITN, and daily newspapers.

As a scary aside, a few years later a private detective did track me down and would stay parked outside my door at night phoning me, trying to get me to retract my evidence. He did give up eventually. that experience it was many years, indeed almost a couple of decades, before I got involved in any expert witness work again. I had not even thought of seeking any, as I had been extremely busy in my career as a serial hi-tech start-up masochist. Then one day, sitting in my converted barn office in deepest Herefordshire (no, not Hertfordshire – this is the one with the cider apples and the SAS), I had a phone call out of the blue, with an attorney on the other end of the phone with an American accent, saying he was calling from New York. I thought, “oh no, what have a I done now?!”. But he told me to relax, it was just he'd tracked me down and wondered if I wanted to do some expert witness work in a handheld computer case (defending Hewlett-Packard as it happens in this case).

Since then I have been involved on and off in a dozen or more cases, mainly in the States, but occasionally for a small but excellent IP law firm Origin in London, representing the likes of ARM, TomTom, and King.com (vs Zynga).

I have been retained variously by quite a few US law firms, in New York, Washington, Boston, San Francisco, Palo Alto, Redwood City and Mountain View (the latter three being in Silicon Valley proper). So the travel has been fun.

 For the record, the law firms have been Proskauer Rose, Fenwick & West, Covington Burling, Morrison Foerster, Fish & Richardson, Hogan Lovells, Cooley, Kenyon & Kenyon (with the wonderful address of 'One Broadway' in New York), as well as Origin and Wilkinson Kimbers in London, just in case any of you recognise the names.

Generally I am retained by the Defendant’s side, but occasionally I end up representing the Plaintiff. Most cases are to do with US patents – infringement and invalidity (or not), with a small number being concerned instead with licencing and copyright issues, or computer forensics. I admittedly have less experience being involved in expert witness cases in the UK as opposed to the US, but I thought it would be instructive to highlight what I have found to be perhaps some of the differences between the two.

For a start, America of course is all about money. The cases in which I have been involved have mainly involved the hi-tech big hitters such as Microsoft, Apple, Samsung, Hewlett-Packard, Texas Instruments, etc. The money swilling around in these cases – the stakes are very high of course – is (to quote the new Chancellor of the Exchequer) “eye watering”. Fortunately some filters down to the expert witness at the bottom, so it can be quite lucrative (although I admit I am not so au fait with UK rates, apart from my own personal experience). So trickle-down economics does work, sometimes.

But then, as one very smart young US patent attorney said to me - “it's all about the money – at least there's nobody on death row or anything like that, so it's not that serious really in the great scheme of things”.

I have found many other differences too. California cases tend to be pretty relaxed, all jeans-and-t-shirts. The East Coast (Washington, New York, Boston) is lightening up, but it's more 'smart casual' with occasional suits and ties.

And now for depositions. Definitely extremely intense experiences. I am no lawyer of course, but it seems to me that one of the main differences (and please do correct me if I am wrong) is that in the US it's all about open disclosure and discovery, writing expert reports (and swapping them between the two sides) and then getting deposed on them, rebutting the other side's expert and then getting deposed again. And then maybe going to Court.

The deposition itself is extremely challenging in my opinion. A must is as much 'prep' as possible with the attorneys, at least a couple of days, practicing responses, and going over your report and other details with a fine tooth comb. The 'depo' itself usually takes place at one or other of the attorney's offices under 'court conditions' – the whole process is videotaped, and a stenographer taps away taking a written account. The maximum an expert is supposed to be questioned for (or may I say, 'interrogated') is I believe seven or seven and a half hours (depending on jurisdiction I think), with breaks in between. In my painful experience the event always lasts at least this long, with my side (unhelpfully for me, in my opinion) often agreeing to an extension of thirty minutes or so 'as long as the other side reciprocates'. All of this means that the depo working day in all tends to run to eleven or more hours, which is pretty exhausting. Well, I guess you get to earn your money.

Fortunately in my cases all my depos so far seem to have gone very well, with my attorneys extremely pleased with it all.

Now I am not sure I want to end up in court again really, but one annoying thing for me in my 'expert witness career' (as far as my CV goes) is that, apart from my very first case at the Old Bailey), none of my cases (as yet) has actually gone to trial. I like to think that my reports and depos are so good that they win the case in their own right, but I think that it's more to do with the fact that some ninety-plus percent of cases settle out of court. Nevertheless it does look better on paper for future cases if you actually get to testify, so I would urge you to cross your fingers and hope for the rights of passage of a real trial if you have not done that already.Another difference I believe is in the process of report writing. In the US the attorneys pretty much write the report for you (there's a lot of legal framework wording that needs to be in place), although you The Expert do provide and write up the real nittygritty of the report (e.g. fine detail about the software and hardware technology). My limited experience with the UK is that the expert writes much more, if not all, of the report.

So in summary, I am looking forward now to hopefully picking up a few more UK-based cases – if only to cut down on the travel a bit. Although in my case I do fear that there's really not much hi-tech litigation going on outside the States, but I will be happy to be proved wrong. 

 Ian Cullimore PhD

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