In this episode . . .

Not all attorneys are subject-matter experts themselves, and they may rely on their expert witnesses to get a technical overview. Our guest, Dr. Istvan Jonyer, recommends that experts use initial calls to get a feel for an engaging attorney’s potential knowledge gaps, so as not to waste a lot of time explaining, or overexplaining opinions before writing reports or developing deposition strategies. He shares an example where he spent a significant amount of time explaining the technical details of his opinion, only to realize afterward that it went over the attorney’s head.

Check out the complete discussion for topics including expert relevance, understanding when communications are privileged, and retainers.

Episode Transcript:

Note:    Transcript has been lightly edited for clarity.

Host:    Noah Bolmer, Round Table Group

Guest: Dr. Istvan Jonyer, Owner of Sidespin Group 

Noah Bolmer: Welcome to Discussions at the Round Table, I’m your host, Noah Bolmer. Today’s guest, Dr. Istvan Jonyer is the owner of Sidespin Group. He’s an inventor, scientist and entrepreneur that focuses in machine learning, augmented reality, and other emerging technology. Dr. Jonyer holds a Ph.D. from the University of Texas and an MBA from Carnegie Mellon. Dr. Jonyer, thank you so much for joining me here today at the Round Table.

Dr. Istvan Jonyer: Thank you for having me.

Noah Bolmer: Of course, let’s jump right into it you have a fully vertical background in Computer Science and related technologies ranging all the way from invention up to funding, and you even have teaching experience. How did you get started and when did you first get involved in expert witnessing?

Dr. Istvan Jonyer: Initially I learned about expert witnessing from a colleague who had a very similar background, someone who was also a Ph.D. in Computer Science [and] also did teaching and also did some investing. Over a coffee conversation, I learned that he was also doing expert witness work on the side and just based on his description of what was involved, I was very intrigued and immediately looked into it and within a couple of months I was on a case.

Noah Bolmer: Oh, no kidding. That happened pretty quickly for you first of all, how long ago was this?

Dr. Istvan Jonyer: This was at the end of 2018, and I got my first case in, I want to say February of 2019.

Noah Bolmer: Okay, so you’ve been doing this [for]a few years. Did your friend have any helpful advice? Did he act as kind of a mentor to get you started, or did he just kind of put the bug in your ear a little bit?

Dr. Istvan Jonyer: Just put the bug in my ear. I did ask him how to get started, but he was basically saying look,” I only do this very part time. I don’t know how to get cases. I just know someone who sends me cases.” My process was very self-directed. I looked into all the different ways that someone could get into the expert witness field, created listings for myself on the various directories, contacted agencies and my first case ended up coming through an intermediary.

Noah Bolmer: Let’s talk about that first case or those first cases. What’s it like getting that call kind of out of the blue? How do you vet each other? How do you handle that and how has that changed over the last couple of years? How have you improved your process?

Dr. Istvan Jonyer: Initially I didn’t know what to ask. I initially just focused on highlighting aspects of my career that would be relevant to the case, and that’s definitely the right thing to do and it’s a very essential part of the interview process, but initially, that’s where I stopped and over the years, I have added a long list of questions that I think someone who signs on to a case should really know. I think it’s important to verify that the case is actually about what you believe it is about sometimes, although this is not a frequent issue, sometimes the case is in fact different than what you might think it is. The most illustrative example was perhaps when somebody contacted me about testifying in a case in the area of contribute- contributory copyright infringement, which- it’s a mouthful and I didn’t even know what that was and I didn’t know how they came to the conclusion that I would be an expert at that. But it turned out that the case was litigated in terms of networking technology and the Digital Millennium Copyright Act is actually written in those terms, and it did turn out that I was actually the right expert in that case. Another example that comes to mind is when they retained me as a machine learning expert, and I definitely am a machine learning expert and the case turned out to be more about CPU architecture. So it just so happens that I know CPU architecture quite well. But you know, I think it’s very important to kind of verify at a level deeper than what the case might actually be about. The second thing that comes to mind is the status of the case. Has it been filed? Has the case progressed? What the case schedule is? Sometimes what I run into is attorneys wanting a report within two weeks because they didn’t realize they needed an expert until the expert. The report is coming due and it’s almost impossible to comply with those requests unless my calendar happens to be completely open, which is rare. Another question is about support staff. Sometimes I need my own support staff for a larger case to involve researchers or source code review experts and sometimes the attorneys themselves have junior staff who are staffed on the case to help me out researching things. Those things are good to know when planning your bandwidth, right. I think another important thing that plays into how the case is going to work out is the attorney’s background. Often when I work on cases, the attorneys have the subject matter expertise, right? Maybe [a] patent litigation expert who works in litigating computer science patterns would have at least a bachelor’s in computer science, but sometimes they come from a physics background and other times they come from a completely different background and so the amount of education that kind of goes into working with the attorneys will definitely differ based on the attorneys’ background.

Noah Bolmer: I’d like to dig into that a little bit for a minute. That’s really interesting about educating attorneys. Tell me a little bit more about say you have an attorney who’s not a subject matter expert, to what extent do you have to kind of teach them?

Dr. Istvan Jonyer: I think the level differs quite a bit. I mean, even if the attorney comes from a computer science background, they may not know machine learning or the very specific technique that the patent is about, but if the attorney is coming from, let’s say, an oil and gas background, then you know the level of education is going to be a lot different, so do you need to teach them computer science from the from scratch? Do you need to tell them what source code is? Do you need to tell them what a database is? What a database table Is or there is at least some amount of common understanding of at least the basic field that you’re working in, and then you really get to start at sort of a higher level and then just talk about the specifics of the case. I think those– there can be quite a bit of range in expertise coming from the attorneys.

Noah Bolmer: The attorneys typically already know what they don’t know, as it were, do are- do the- do they prompt you with questions like, “Hey, I need to know what– a what source code is or I need to know what a lookup table is or (–)”

Dr. Istvan Jonyer: Yeah, I think when I started out, I assumed that the attorneys knew everything and perhaps even more than I did because they spent a lot of time with the case. As a new expert witness, you don’t have the context of knowing what other people know and that is something that you gain over time and I tended to speak to attorneys as if I spoke to my own professor, colleagues and over time that became clear that it was not the right way to go about it. The issue is that many attorneys or just people in general have a hard time asking questions or saying, “I don’t know what you’re talking about.” They might take notes and try to look it up later and when you’re speaking for a while on advanced concepts and you’re not getting any questions, that’s when you might want to think about making sure that what you’re saying is really landing because in one example the attorney asked me what I thought the case was about and I started speaking at the level of the patent, which is highly technical and after half an hour he asked a very basic question and I thought, “Oh my God, for the last half hour, everything I said went straight over his head.” And so, I had to set up a session where for between two or three hours I don’t remember exactly, but it was a long period of time, I was going through basics of computer science of what was needed for basic understanding, and so it was a quick session for him to come up to speed just on what computer science is.

Noah Bolmer: Wow, that– that must also impact your report writing. You’re writing things that ostensibly can be very technical, and I imagine that you– you’re writing for a lay audience some of the time or you don’t know if your report is going to be seen by a lay audience. How do you what’s– what’s your report writing?

Dr. Istvan Jonyer: Yeah, I think the audience is discussed ahead of the time or it’s– it should be. If it’s not brought up by the attorneys, I think you need to know if you’re submitting a report that’s read by a judge that has the right amount of background or if it’s going in front of a jury, or if it’s going in front of the P-Tab, which is the Patent Review Board. Those people at the Patent Review Board are really technical and they do have the right background. Typically, you want to assume that whoever is reading has a low amount of understanding, just to be on the safe side. It–  I think it’s better to assume that you’re explaining it to your– to your grandma and then, building up sophistication as you go along in your report. Then, not do that because basically [you] are just adding more words that increases understanding. I think that’s just a best practice to follow.

Noah Bolmer: Do you have any specific organizational routine that you use when you’re developing reports? In other words, do you index things? Do you– how do you go about the kind of the mechanical structure?

Dr. Istvan Jonyer: The mechanical structure I think is pretty uniform, at least the way I do it is. At the beginning, I put all the preamble logistics have been retained by who and how much they’re paying me and what cases I worked on previously and no conflicts of interest, previous depositions and then the second section is more about how I understand the case. Sort of a case background and then I go into methodology if that’s applicable in certain types of lawsuits. It’s really important to establish the methodology that you use to come to your opinions, and then finally you get into your opinions.

Noah Bolmer: Sure. Have you worked both on the plaintiff and defendant side?

Dr. Istvan Jonyer: I have.

Noah Bolmer: Do you have a different strategy for rebuttals and rebuttal reports? Often when you’re writing, when you’re working on the defense side, your report is a rebuttal, and some people take kind of different approaches to that. I’ve heard from certain experts that it can be a bit easier because a lot of the foundations [are] already laid down and you just have to kind of pick it apart. point by point, but do you have any specific strategies?

Dr. Istvan Jonyer: I would say I would agree. When you write a report rebuttal report, you are reading the opposing expert’s opinion, and you see what you agree with and what you disagree with. And you focus on the differences of opinion and try to be as eloquent as you can be in highlighting why your opinion Is the right one or the valid one, and so it ends up being a much shorter report, meaning the rebuttal report than an opening report.

Noah Bolmer: Experts can be contacted, kind of. This is– this brings me back to one of the questions that you’re telling me is useful for experts to be asking their engaging attorney regarding, “Where are we in the case.” And experts can be brought in at any time as you indicated. Do you feel as though you typically have sufficient time to be ready for depositions, or the jury, or for report writing or do you feel rushed occasionally?

Dr. Istvan Jonyer: I feel rushed occasionally, but typically, there is enough time I and it really just comes down to the fact that if I don’t feel I have enough time, I don’t take the case. I have had to refuse a couple of cases where it was within a week or two and there was no way for me to come up to speed and write a report in that time frame. Some attorneys are really forward-looking, and I have been retained even before litigation. I have been retained with over a year remaining before the initial report was due and it is also the case that when you’re running a little bit behind, you can ask for an extension, and in in a couple of cases we were able to receive an extension. I think in one case it was maybe just a few days from like being– it being due on a Monday, it became due on Friday. In another case, the delay was two weeks. In another case, the opposing side was asking for an extension. There– those types of flexibilities sometimes exist, but when the case is very {–}. Sometimes the opposing side just doesn’t want to go into any kind of extension and they want you to have that pressure of delivering on time and pulling all nighters and maybe forcing you to make a mistake by doing that.

Noah Bolmer: Speaking of an acrimonious opposition, do you find yourself getting impeached by the other side that you have to kind of defend your expertise and what’s that like?

Dr. Istvan Jonyer: I think I have. In most cases, the expertise itself has not been challenged as much as the relevance of my expertise to the case that’s right, or the opinion itself or a methodology. I think that’s where computer science experts spend, or attorneys spend most of their time. I mean, I understand that in the medical field it might be different. I actually initially when I got into this field, I watched the– a medical expert giving trial testimony, and I think two hours of the testimony was about his resume and then he was asked whether the procedure was performed according to standards and he said, “Yes. No.”  and that was a testimony. But in computer science, or at least in the– on the cases that I worked on, I think that my background gets explored only sort of minimally and to the extent that it’s relevant to the case and then they really get want to get into the opinion.

Noah Bolmer: If somebody is attacking your opinion, what are your strategies to kind of alleviate that or is that normally left mainly to the attorney? Do you not have to deal with that so much?

Dr. Istvan Jonyer: No, I mean of course in that position and in rebuttal testimony, that’s the job of the opposing side to oppose in your opinions and theories, and so I think the way that I go about it is to try to get my opinions be as little of an opinion as possible and make them as factual as possible, and anything that I say– and most things that I say– I cite reference is for (–), I think one extreme example was in one of my earlier cases where I was able to cite almost everything that I was saying from the opposing sides website and the opposing attorney and deposition at one point, I said, “Well,” he said, ”how do you know this?” and I said, “Well, it’s as I cited in my report, this information comes from your clients website.” And he says, “Really.” So literally, I think 95% of the citations were from the opponents website, so it it’s very difficult to disagree with that, but even when that’s not the case and most of the time, that’s not the case, you still want to have third parties and third party citations and not relying on other people’s opinion of course, but relying on data, right? A lot of the time you can establish factual sort of opinions based on data that has been established in the literature.

Noah Bolmer: What does your preparation look like? Have you done for example mock cross-examinations or how do you get ready for a deposition or for a trial.

Dr. Istvan Jonyer: Yeah. I think the right way to do it is to set aside at least a day with the attorneys and go through all of your opinions and all of the variations of what the opposing side might bring to the table and how the opposing side views the case. Sometimes the different sides are not sort of head on, right? Sure, not about, “Well, we think it’s this and you think it’s that and no, it’s this.” No, it’s that it’s usually– there’s usually some kind of a side stepping going on and one side might say, “Well, what you’re saying is completely irrelevant because that’s not what the case is about.” And they might even try to exclude your opinion because it’s not relevant to the case that they are trying to make, but, of course it is relevant to what your client is trying to make, so you need to be aware of these context switches, right? When the opposing side is trying to change the subject or is changing the subject because they are the ones in that position who are asking you questions. And you need to be aware whether the question is about one of your opinions. Or, are they trying to steal you to say something that’s good for their case? And by being aware of the context which you can sometimes say, “Well, I haven’t thought of that because I wasn’t asked to give an opinion on that and I’m here to answer questions about my report, and that topic is not in my report.” And if you don’t– if you’re not on your toes, you could get into a conversation where you think it’s a conversation and as a problem solver and an intellectually curious person, you might actually start problem solving and giving opinions on the spot. And so, I think those are the things to really avoid.

Noah Bolmer: Do you have a story or two about being an expert witness or a case or two that really informs the way that you approach generally expert witnessing because you’re not new, but a newer expert witness. And I– this is the point at which people are — tend to be developing their techniques and figuring out what works and what doesn’t work. Have you had a case that fundamentally changed your approach?

Dr. Istvan Jonyer: I don’t know that my approach changed fundamentally by any of the cases that I’ve done, but I think you do pick up nuggets here and there and that definitely makes you more grounded, and kind of filling in the kind of– the long tail of your of your knowledge and I think, yeah, if you’re asking for a specific case.

Noah Bolmer: If you have one.

Dr. Istvan Jonyer: Yeah, I mean this is not really about the case, but I think it’s really instructive to potentially new expert witnesses. What happened in a case was that we were retained by an attorney and so, the client was the law firm. And as you may or may not know, your client could be a corporation or an individual who is retaining you, who is retaining the attorneys, or your client could be a law firm. The law firm could be then turning around and sending your invoice to their client, or the law firm could be acting as a sort of a litigation finance firm, and they just sort of litigate the case on contingencies so there are all sorts of setups, and so we got engaged by a law firm as the client. But there was another law firm who was actually doing the litigation and we were speaking to I was– I should say I was speaking to the attorneys who were litigating the case, and then one particular attorney from the firm that retained. Yes, and it didn’t– it did not occur to me until I learned in my deposition that the law firm that retained us was not actually on the case, which means that anything that I discussed with them was not privileged even though they were denied. That’s an honest mistake. Nobody told me who was on the case [and] who was not on the case. You’re working as an expert witness and you’re talking to attorneys. You’re assuming that the attorneys are on the case, but turned out that one law firm was simply acting as a client, but it’s– you do this long enough these weird situations will happen.

Noah Bolmer: That’s an interesting story, but moving on from there, what more generally, makes a great relationship between you and the attorney? What makes you a good team? What are the aspects of an engagement both on your side and the attorney’s side that help you work together and make an effective team?

Dr. Istvan Jonyer: In my experience, what makes a good relationship is similar background. If the attorneys have a computer science background and they are litigating the same types of cases that we’re working on together that makes it a lot smoother than if they don’t have that background. Or they are usually working on oil and gas licenses and they are all of a sudden coming in and litigating a computer science patent infringement case. The timelines must be– might be different. It’s difficult to have a shared understanding and there are just a lot more opportunities for misalignment, misunderstanding, misaligned expectations I place a lot of emphasis now on, and the attorneys I work with and also, I don’t know if this is the experience of others, but larger law firms just happen to be better to work with. But maybe that’s because they have specialized teams for everything, whereas smaller law firms see a more of a breadth of cases, and they find themselves out of their element more often. I think you know large well-established firms are just a lot easier to work with.

Noah Bolmer: Before we wrap up, do you have any last tips, especially for newer expert witnesses or attorneys who are working with newer expert witnesses?

Dr. Istvan Jonyer: I mean, one thing that comes to mind is contract terms. As I’m going through my experiences with different clients, I’m considering adding more terms and I recently spoke to a very experienced expert witness who pulled up on the screen his retention agreement. And I think he’s been an expert for 20 years now and he asks for a retainer before he starts working on the case before deposition before trial. He must have had a few clients who failed to pay him. Fortunately, that has not happened to me, but asking for retainers does increase friction and some clients say, “Well, we really like you and that we would prefer to not have a retainer.” And I have so far gone down that path. But, it makes you think when you see someone so experienced, having very specific payment terms like that and just to think that maybe he had some bad experiences along the way.

Noah Bolmer: Sure, absolutely. Dr. Jonyer, thank you so much for joining me here today.

Dr. Istvan Jonyer: Thank you so much for having me.

Dr. Istvan Jonyer, President, Sidespin Group

Dr. Istvan Jonyer is founder of Sidespin Group, an Expert software analysis and business strategy services company. He is an inventor, scientist, and entrepreneur with a focus on machine learning, AI, augmented reality, and other emerging technologies. Dr. Jonyer has a Ph.D. from the University of Texas and an MBA from Carnegie Mellon.