In this episode…
Our guest, Bill Gervasi, notes the importance of checking anything attributed to an expert, “The key takeaway was to verify everything. If a lawyer writes a part of the report, I am the one that owns that report, not the lawyer.” This is especially important when filling out details in an existing report, as he expands “. . . they had a skeleton for how they wanted the report to look in advance. And they needed me to fill in the technical detail.”
Additional topics include cross-examination, confidence in expertise, and responsibility. Gervasi states, “I quickly intuited probably the most important thing, which is ‘how do you coordinate with these guys?’ A lawyer is going to be a smart individual, but they’re not technical. And that’s what they’re relying on me for.”
Note: Transcript has been lightly edited for clarity.
Host: Noah Bolmer, Round Table Group
Guest: Bill Gervasi, Principal Systems Architect at Nantero
Noah Bolmer: Welcome to Discussions at the Round Table. I am Noah Bolmer, your host, and today I am excited to speak with Mr. Gervasi, Principal Systems Architect at Nantero, which innovates the computer memory space, and he is a board member at Bridge to Connect, which aids in developing first-generation STEM students into future leaders. Mr. Gervasi has spent 45 years in computer systems design and analysis, and he is a sought-after expert witness for DRAM intellectual property. Mr. Gervasi, thank you so much for joining me here today.
Bill Gervasi: I am excited to chat with you.
Noah Bolmer: Let’s just jump right into it. You have made a career in computer systems design and DRAM, and particularly systems architecture has always been a passion for you.
Bill Gervasi: I was the kid that at 8 years old was fixing the family television. So, I am pretty sure I was going to be injured from the time that I was a preteen.
Noah Bolmer: So how did that passion and all the time that you spent in computer systems design, lead to a career in expert witnessing or at least a side business in expert witnessing?
Bill Gervasi: The law firms found me, and they approached me. I think my first expert witness case was in 2008. Although I had done some testimony before the International Trade Commission (ITC) back in the famous Rambus case back in the 1990s.
Noah Bolmer: Yeah, a very famous case. So, they sought you out. You did not do anything. Were you familiar with expert witnessing? Before that, many of my guests say the first time they were contacted, they did not realize that paid expert witnesses were even an opportunity.
Bill Gervasi: I did not. You are right.
Noah Bolmer: Let’s go back to that first time. What was it like? What did you cover with a prospective council that first time? Did you feel prepared? Were you anxious? What did they do right, and what did they do wrong?
Bill Gervasi: The first one was like hitting the runway at 100 miles an hour for sure. The case went to Washington, D.C., and I ended up testifying before the ITC and so forth. It was a major case. I think I worked on that case for 11 months.
Noah Bolmer: Wow! That long.
Bill Gervasi: I spent nine days back in Washington, D.C. for the culmination of the case. I remember sitting in the IC room with 50 lawyers on one side and 40 on the other, plus the staff back at the hotels. So, it was a big case with much at stake. The lawyers I worked with then turned out to be great. It was easy, and I quickly learned the most important thing, how you coordinate with these guys. A lawyer is a smart individual, but they are not technical. That is why they rely on me. I quickly realized that, but they do have an agenda and a program in mind. How are they going to approach the case?
Noah Bolmer: Perfect.
Bill Gervasi: What I learned in that first case and especially with an 11-month engagement was how to cooperate. I quickly realized that my signature was going on that report and my butt was going to be on the line if something happened. In that first case, the key takeaway- was to verify everything. If a lawyer writes a part of the report, I am the one that owns that report, not the lawyer.
Noah Bolmer: Right.
Bill Gervasi: For example, if I cite excerpts from somebody else’s deposition, I go back and read that deposition again. I validate that they quoted it accurately and that it is in context. So, if I am asked about my statement in that report, I have the context to give a reasonable answer.
Noah Bolmer: What preparation did you do at the beginning when they first brought you in and said, “Hey, we have this case.” How did they prepare you? Especially because this first one went to trial. Did you do mock cross-examinations? Did they tell you what would be expected of you or how to answer questions?
Bill Gervasi: Things got better as I did multiple cases. The attorneys advised on things like when you are giving a deposition do not answer right away, let the opposing counsel ask the questions, and stop and think before you speak. They gave great coaching on that and again it became intuitive, especially since I have done sales and marketing. Listening is more important than speaking. It was great how that worked out. The other aspect was they had a skeleton of how they wanted the report to look in advance, and they needed me to fill in the technical detail. That coordination became a model for how I worked with other lawyers after that as well.
Noah Bolmer: That is interesting. So, you were handed a skeleton or template. Is that something that you find peculiar for the first time or is that something that you have come across frequently? I was under the impression that more often than not, you are writing a report on a kind of whole cloth.
Bill Gervasi: It has been across the whole spectrum, and it depends on how soon they bring you into the more technical cases. It takes longer to find somebody who knows what they are doing. There have been cases where I have been brought in halfway through the process, and a skeleton of the report was written. In other cases, I was brought in early, and I wrote every word of the reports. The attorneys reviewed it. On the other end of the spectrum, I was once brought in two weeks before the end because the previous expert witness was fired, and I was brought in to validate and do any rewrites needed on the existing report.
Noah Bolmer: Oh, no kidding.
Bill Gervasi: In that context, it was essentially 99% done when I picked it up
Noah Bolmer: That is interesting. Did your expertise overlap perfectly with the prior expert’s? Were you able to evaluate their work that way or did you have to do research?
Bill Gervasi: Of course, I had to do research in two weeks. I had to know the material inside and out before I even jumped on it. Fortunately, I did. Out of that report, there was only one section that I felt the need to rewrite. The rest was a decent report. It is validating that if I am going to own it and if my signature is going on it, I must take everything that that previous expert witness wrote and validate 100% of It. That was the 99% job.
Noah Bolmer: Let’s dig into validation then. If it seems that you are putting your name on items that you receive, but you are operating in an editorial capacity, how do you go about validating those? Do you have a strategy for that or are you simply reading it and saying yes or no?
Bill Gervasi: That is going to depend on the context. For technical details, it is validating that they correctly expressed the technical details. Another thing that lawyers are big on is terminology. I have found it to be a black hole. They will say I spent six and 1/2 hours on one case. On one word.
Noah Bolmer: Why? Tell me about that.
Bill Gervasi: Well, the word was terminal. What is a terminal? As a systems guy, a terminal can be anything from where the dye meets the gold pad to where the gold pad meets the gold ball. From the gold wire to the other gold ball pad to the copper underneath the gold pad. All of these are terminals. The distinction between those definitions was essential to the nature of the case. I would have to do a significant amount of research to answer these questions: What is the genetic definition of a terminal? What is Wikipedia’s definition of a terminal? What is a general research paper, and what do they call the terminal? They were all different of course. I had to form my own opinion about where I considered the terminal to be and then much of my question-and-answer periods. In my interpretation of this term, is how I see it applying in this case. That is six and a half hours of depositions and interrogations.
Noah Bolmer: Do you feel there is a fuzzy line between where your job ends and the lawyer’s job starts?
Bill Gervasi: They own the case. I own the technical content. A clear distinction in my mind.
Noah Bolmer: You are not so worried about how they are going to apply it, just that you are giving them accurate information at the end of the day.
Bill Gervasi: My time is for sale. Not my opinion. It is strictly based on fact.
Noah Bolmer: Have you found attorneys offer some amount of pressure to get you to say something in a specific way that helps their case? If you had to push back on the attorneys, what is your strategy for dealing with that? Do you tell them directly, “I am not going to say that?”
Bill Gervasi: It depends on the case. For example, the word terminal, I was warned early in the case that was a contentious term. When I did my homework on the definition of that I had to stick to my guns and at that point, my position was inflexible. Not only did my lawyers keep questioning that, but the other side, as well.
Noah Bolmer: Speaking of the other side, let’s talk about cross-examination and getting prepped for that. How does it feel when you are being grilled by the other side? Is it useful to know something about the opponent as well or do you simply state the truth, and not get rocked too hard by them? What is your strategy for dealing with cross-examination?
Bill Gervasi: That is a good question. I read the depositions from the other side many times. In these cases, it is useful to observe and understand their perspective. Their opinion is not going to be changed by their position.
Noah Bolmer: In all your years of experience, is there anything specific that attorneys should be doing to help with cross-examination preparation?
Bill Gervasi: I do remember that the head of one law firm got involved with the case, and his strategy was to do prep to the point where I lost control. Was that valuable? I do not know. I need to think about that one, but they ran me for seven hours until I exploded at him, and they said, “Okay, we are done for the day.”
Noah Bolmer: Did you find that to be valuable going forward? Is that something you used?
Bill Gervasi: That was a memorable experience.
Noah Bolmer: Do you have any other stories of cases that you can recount? Something that drives one of those points home, or was particularly memorable? That you made a part of how you are as an expert.
Bill Gervasi: That first case taught me that lawyers love to try to put words in your mouth and use that to trip you up later.
Noah Bolmer: Are you talking about the opposing counsel?
Bill Gervasi: Exactly. They will ask a leading question using the terminology they want, and if you answer yes or no, which is what they think you are supposed to answer, then they use that. Then, they will twist the meaning later. I learned that in the first couple of cases, I did. Around Case 3, my strategy was to take control of the terminology and the game plan. If they ask a question in wording I would not use, then my canned response is, “What do you mean by this?” Then, I define their terms, and my answer knocks them off their feet, every time.
Noah Bolmer: That is a tactic that you have used going forward and it has worked out for you.
Bill Gervasi: In the last 17 cases I put them on their heels. I do not let them put me on my heels.
Noah Bolmer: Before I let you go; I would like to pivot and talk about something that has come up frequently and that is finishing an engagement. You mentioned that you have been brought in towards the end of trials. You have been brought in, in the beginning and middle of trials. How do you continue to follow the case as it progresses? After you have done your bit and you have shown up. You have been an expert. You have written your report and done the things that you were hired to do. Do you continue to follow the case as it proceeds? Does a lawyer keep you posted on what is happening?
Bill Gervasi: I kind of suck at that. I figure if they want my time, they will come and they will get it. Usually, it is three months after I have submitted everything and I have not heard from them for a while, then I get this e-mail saying this case settled out of court. That is okay but, the only reason that is important to me is because that tells me when to go delete all my archives and shred any papers I supplied.
Noah Bolmer: So, winning the case is not that important to you.
Bill Gervasi: I have my own opinion. How the judge sees it and how it fits in with the other aspects of the case is up to the legal system, not me.
Noah Bolmer: How do you go about getting paid if you are unaware of where the case stands? Do you get paid independent of that, or do you get paid after the case is completed?
Bill Gervasi: Strictly hours. I bill once a month based on the hours worked. .
Noah Bolmer: It is hourly across the board for everything for you.
Bill Gervasi: I always do hourly only.
Noah Bolmer: Do you have any other last thoughts?
Bill Gervasi: Early on a friend told me, “Oh, you should get a retainer.” So, the next one I bid for I put in a retainer requirement in the contract. They never paid the retainer. It is a total waste of time.
Noah Bolmer: Have you had any difficulty getting paid?
Bill Gervasi: That was the only one. They waited until after the billable hours, but they have never argued.
Noah Bolmer: Thank you for joining me here today.
Bill Gervasi: It is a pleasure. Nice talking with you.
Noah Bolmer: Thank you to all our listeners. I hope you will join me for another Discussion at the Round Table.
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.
Bill Gervasi is the principal systems architect at Nantero, a hardware innovator specializing in DRAM development. Additionally, Mr. Gervasi is a board member at Bridge to Connect, a non-profit that aids in developing first-generation STEM students. He has over 45 years of experience in computer systems design and analysis and is a highly sought-after expert witness with a focus on DRAM IP.
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