In this episode…

Our guest, Professor Joseph LaViola recommends sticking to the report during a deposition to avoid getting tripped up with leading questions: “You have your report in front of you and that’s sort of your Bible . . . you’re there to talk about what’s in your report.”

Other topics include conflicts of interest, remaining an expert in a dynamic field, and the importance (or lack thereof) in winning, as LaViola states, “I tend to not look at whether the case is won or lost. Many of the cases that I’ve been on . . . at the end of the day, I’m looking for things that I feel I can contribute to.”

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Joseph LaViola, Professor of Computer Science at the University of Central Florida

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to welcome Professor Joseph LaViola. He teaches Computer Science at the University of Central Florida and is the the Director of the Interactive Computing and Experiences Research cluster. Additionally, Professor LaViola is the Founder of Fluidity Software and JJL Interface Consultants. He is a senior member of ACM and the IEEE Computer Society and a published researcher. Professor LaViola has a Ph.D. in Computer Science from Brown University. Professor LaViola, thank you for joining me today at the Round Table.

Professor Joseph LaViola: Thank you for having me.

Noah Bolmer: You have an impressive career as a computer science professor and a researcher. Has this always been a passion of yours?

Professor Joseph LaViola: Going back to high school. I was interested in virtual reality. There was a hype cycle about VR around the time I was in high school and when I heard about it, I thought it was the most amazing thing that I had ever heard. I wanted to work on that. So, that has been a focus since I started.

Noah Bolmer: Was that in the 1990s? I remember when that first started. I read an article in Wired magazine about a program called High Cycle, where you put on a VR headset, and ride a bicycle. It is like you are there and I thought that it was the most amazing thing that I could imagine.

Professor Joseph LaViola: Yes, it is around that time. There was an application that came out called Dactyl Nightmare where you played tag with another person. There would be this pterodactyl that would fly by, pick you up, and take you away. If it did, then you lost. It was amazing because it had head tracking, 3-D, stereo, and hand tracking. You could move with a joystick or game controller, so I had the hardware and specifications that we see today. That was a long time ago.

Noah Bolmer: You have been into this for a very long time. What does it mean to continue to be an expert in Computer Science and VR? This is a big field, especially with the advent of AI. How do you remain an expert? What does it mean for you to remain current? How do you stay relevant in the field?

Professor Joseph LaViola: That is a tough one. There are several ways. The first way is to keep reading papers that people are constantly publishing at various conferences and in journals. I review this new work which gives me a chance to see what the latest and greatest things are out there. I also rely on my graduate students to teach me about the latest and greatest stuff and go to the conferences themselves. You get a good chance to see what is going on in the field and how that relates to the work you are doing and allows you to maintain some level of knowledge about the current state of the field.

Noah Bolmer: How did you get into expert witnessing? How did this field translate into a career in expert witnessing? When you got that first call was that something that you knew was an option? Before that first call had you heard of an expert witness?

Professor Joseph LaViola: I had heard about it because my father is a dentist, and he got an expert with his job. So, I heard about it, but I did not know anybody who did it in Computer Science. So, I got an e-mail out of the blue saying, “Do you do expert witness work?” I said, “No, I think it might be cool.” I had interviews. They were interested, and I got hired to do some research work. At the time, it was not anything legal in terms of the things that expert witnesses do. What it did was give me some experience which led to extra witness engagements. I do not remember the company it was for. I think I have it written down somewhere.

Noah Bolmer: Do you recall if the preparation you received was adequate? Did you feel that during your first engagement the attorney did a good job of preparing you for what was to come? Did you do a report? Do you remember if that first one went to trial?

Professor Joseph LaViola: The first one did not go to trial. I think it was settled out of court. I was asked to do research on a particular technology, and one of the things that happens with the expert witness work and the lawyers is that they focused on the patents. The patents that were out there did not focus on what was going on in academic literature. One of the things that I bring to bear is that I know I have a good understanding of academic literature. Maybe I do not have much understanding of patent literature because I am not constantly reading patents. I was able to systematically go through that academic literature to find relevant material that helped them get the case. At that time, there was not much training per se. I did not get much of that until I started doing depositions and that is when the training started. It started to come in.

Noah Bolmer: Let’s talk about the depositions. Once you had moved into your first deposition, how was that experience? Do you feel that you had adequate preparation for that? Did you hit the ground running?

Professor Joseph LaViola: I believe that I did, although the first time was a challenge because, at the end of the day, the opposing counsel is trying to get you to say things that you do not want to say. It is a big game, and they want to get you to say what they want in their reports and in their arguments in court to help their case. The challenge is making sure that what you say is truthful and avoiding the tricks they use to try and get you to admit certain things. That is always a challenge.

Noah Bolmer: Let’s dig into that. When you say that they have tried to influence you and get you to say things in a particular way, obviously you know they want to win their case, right? They think that your expertise is going to help them do so. Where is the line? What do you say they try to employ tricks or tactics to get you to say things that you may not believe? What sorts of things do they do, and how do you avoid those pitfalls?

Professor Joseph LaViola: One of the things you need to do with any of these depositions is to think a few steps ahead of what the opposing counsel is saying. You try to keep them from backing you into a corner so that you have no recourse than to agree with them. They will say things like “Dr. Lovell, wouldn’t you agree that under this circumstance, X, Y and Z is true?” You know all they want you to do is say that, under some circumstances, it is true. But you are not supposed to say that it’s true. And for our practical purpose, it is not true. There may be certain conditions that occur that may provide a window for there to be a bit of truth. If they can find that and grab a hold of it, well they have gotten you, Then, you go back and forth with them. They do not give up. I have been in positions where they are eight to 10 hours long and you feel like you got hit by a truck afterward.

Noah Bolmer: That is opposing counsel trying to throw you off, but what about your counsel? Have they tried to influence you about what to say or how to say it that you do not agree with? Do you feel that they pretty much rely on your experts?

Professor Joseph LaViola: They rely on my expertise. You asked me previously if there was anything I wish I had known before I got started in this area. I think the biggest thing is just knowing the law for whatever matter that I am involved in. If it is a patent case, understand the various nuances of patent law. It is important for you as an expert witness because you are going to be applying those rules and laws as part of your expert report, and ultimately in your deposition. So just knowing that would have been helpful. You learn it along the way and with every attorney that you work with. You get reacquainted with the various rules necessary for that case. We spend a day and sometimes two prepping for the deposition and going over the reports. Then they pretend to be opposing counsel. They ask you questions as the opposing counsel to get you ready. Sometimes you go in and they do not ask any of the questions that you prepared for. Other times they ask the exact same questions. You never know what they are going to come up with.

Noah Bolmer: You are talking about a mock cross-examination. As a technique, do you find it useful? Is that something you would recommend to attorneys that they should be doing with their experts?

Professor Joseph LaViola: Absolutely. It must be done. You want to divulge as little information as possible. It is important to understand and answer the questions they are asking you. Where they are trying to take you. There have been times, I have been put in that corner and tried to get out of it. Other times, I have not been I will see it in their rebuttal, or their brief that Dr. LaViola said this, this, and this. Well, I said that, but it is taken completely out of context. You got your sound bite and therefore they are using me to try to help build their case. It is always a back-and-forth between the two.

Noah Bolmer: When you are talking about impeaching the witness, is that something that you usually come up against? How do you prepare for them trying to impeach you on the topic of your expertise? How do you counter that?

Professor Joseph LaViola: I find that when they are talking about the stuff that I am an expert in, I do not have too many problems dealing with that. Issues come into play when it may be something that I am not familiar with. The key with any deposition and any lawyer will tell you this is number one. You can take as long as you want to answer the question, which is important because you do not have to answer the question until you feel confident in providing a good answer. You have your report in front of you and that is your Bible, if you will. That is your guidebook and if you stick to your report, there is nothing that counsel can do. It is just that sometimes it is hard to stick to that report. One of the things that you do not want to do is get into a back-and-forth with the opposing counsel which could lead you to start saying things that you should not say. It gets you into trouble and I have had my share of conversations with opposing counsel. When I am in a deposition, I want to make sure that I stick with what is in the report. Refer to the report. Read the report. I have heard of expert witnesses who read their reports. They do not answer any questions not in the report and these are the best expert witnesses. Sometimes it is hard because the opposing counsel is there saying, “So you are not going to answer the question? You are not going to answer my question?” You start feeling I should answer the question. No, you should not answer the question. It is not in your report. You are there to talk about what is in your report and that is super important that you drill into your head over and over every time you do a deposition.

Noah Bolmer: Is staying within the four corners of what is asked of you?

Professor Joseph LaViola: Yes, absolutely.

Noah Bolmer: I would like to go back to one of the things you mentioned earlier, which is that an expert needs to have some knowledge of the law. Now, that is interesting because this is above and beyond the expertise in your field. You are saying you need to understand the law as it pertains to your field. Could you tell me more about that and maybe give me an example of a case? I know you cannot use specifics of a case where you need to understand the law and the way that it applies to your field.

Professor Joseph LaViola: For example, when you are doing things like claim construction, which is one of the first things that happens with a patent case. You have the patent claim, and the two parties are trying to figure out the plain or ordinary meaning of the terms in question. The plaintiff will have their terms and the defense will have theirs. They have to agree on which terms they want to argue about. A set of rules about how you are supposed to go about determining whether or not a claim term is considered to be indefinite. There is no good definition for it. First, there is the standard rule that you find if there is an ordinary meaning. There is a term that makes sense to someone of ordinary school at the time of the intervention. If that is the case, then you need to say it makes sense in the context of the plenary ordinary meaning for that period. That is all stuff that as a computer scientist, I did not know until I started working with lawyers doing these expert witness cases. That is just one example.

Noah Bolmer: Do you feel that attorneys could do a better job of giving you the knowns and unknowns?

Professor Joseph LaViola: They do a good job. I have been lucky to work with many good attorneys and they are all prepared and smart.

Noah Bolmer: Okay, great.

Professor Joseph LaViola: Many of them have technical undergraduate degrees. I have noticed they understand the technical jargon. They pick it up quickly and make sure that you are prepared. That is why you are prepared. One to two days before you do a deposition, or when you are writing your report, they are going to go over it and make sure that everything is the way it is supposed to be. Many times, what happens is in your report you say, “I am not a lawyer. My counsel has told me about these legal things that I am aware of.” Then, you have this list of knowledge that you need to know about that is within the legal parts of the engagement. Then, you must study those because all your expertise must fit in the context of those legal arguments.

Noah Bolmer: Let’s talk about report writing. Do you get a skeleton provided to you, or are you writing reports whole cloth in general?

Professor Joseph LaViola: It depends on the attorney and the firm, but I usually get a skeleton as a basic outline, where I can fill in the main details. I have had ones where the skeleton is bare bones and others where the skeleton has been more fleshed out. It is a more thorough outline, and it makes it easier to focus on the stuff that I am an expert on when it is done that way.

Noah Bolmer: Do you ever feel that any of that has already been filled out in a way that you need to change or proactively tell the attorney, “I am not necessarily comfortable with some of the stuff that is already prepopulated into the report. I would prefer to say it this way.”

Professor Joseph LaViola: You have discussions with your attorney about the material, and sometimes there are arguments to be made that may not necessarily go along with the way that you see the material. Sometimes there is an open dialogue about the best way to say certain things so that they fit within the context of the law. Whatever argument that you are trying to put forth,

Noah Bolmer: One thing I would like to pivot.to before we wrap up. I like to ask everybody this. Is winning the case important? When you vet people and when you first decide whether or not you are going to take a case, is that part of the calculus? Do you worry over whether this is a winnable case or is it more this is an engagement I am going to give my expert opinion and that is all there is to it.

Professor Joseph LaViola: That is a good question. I tend to not look at whether the case is won or lost. Many of the cases that I have been settled out of court. I took it as far as it could have, but at the end of the day, I am looking for things that I feel I can contribute. If it is an area that I feel like I know something about, then I am looking at performing whatever duties are required. Whether it is for the defense or the plaintiff. I also tended to look at the law firms as well, because there are certain situations where for example, there may be a company that is suing another company over patent infringement. They have a patent, maybe they are not necessarily a known commodity. They are what we like to refer to as patent trolls. These people have patents, and they look for companies to sue. I have been burned on this before. If the firm or the client that you are working for does not have a good patent, in my experience, they have not paid me is something they do not want to have happen. Luckily, in that situation even though the client did not pay, the law firm did pick up the tab, which was nice, I always look to see who the Counsel is a reputable firm. So, that all goes into it, but the primary thing is I contribute here. Can I help with the case based on my expertise? That is number one.

Noah Bolmer: Do you turn down a significant number of cases?

Professor Joseph LaViola: I would say about half.

Noah Bolmer: Oh, no kidding.

Professor Joseph LaViola: it is not my area. I get people saying, “We know you do expert witness work. This is the topic” and it is not my area. That is one thing you should never do. Try to pick one. If you are not an expert in the topic, then you should not do it. If you have personal knowledge that is not good enough. You have to have expertise because you are going to be going into detail. Being able to interpret many things.

Noah Bolmer: Have you ended up in a situation where during the initial phone call, you thought you had the expertise that was required, but it turned out that you had to either drop the case or do additional research to make yourself expert enough for the case?

Professor Joseph LaViola: There have been times when I thought I did well in the interview and then they just decided to go in a different direction. There have been many cases where I have been asked to be an expert witness and I have a conflict because I have already been engaged in another matter. I cannot work for that company. That happens quite often. There have also been cases where I know something, but I need to know more. I learn more about that topic. There is nothing wrong with that because you want to make sure that you know as much as you can about them.

Noah Bolmer: Going back to billing, how do you do project billing? Hourly? Do you take a retainer?

Professor Joseph LaViola: I do it hourly. One of the things that I did was I got some expert witness engagements, and I decided I wanted to be more active. I wanted to try to seek them out and it is not easy to seek these things out. There are search firms out there that lawyers hire to find extra witnesses. Round Table is an example of one of them. I went and filled in applications for all these search firms. Here is my name and this is what I do. Here is my expertise, and if you find something let me know. That opened the door for many more potential engagements. Often, I get engagements through those expert search firms. Occasionally, I get one that just comes straight through me where they found me on the Internet, and they e-mail me directly.

Noah Bolmer: Do you find that previous engagements lead to further engagements?

Professor Joseph LaViola: It helps. I have had several occasions where the attorney asked me for a previous attorney to speak with, and I have given those references. I believe that has worked out many times. There are many ways that you can put yourself out there. It comes and goes. You might not have anything for a few months and then you get three different emails from three different people wanting you to see if you are interested in a potential engagement. It can be challenging.

 

Noah Bolmer: Before we wrap up, do you have any advice for newer expert witnesses or attorneys that are working with newer experts?

Professor Joseph LaViola: I think my biggest advice for new experts is do not worry if it takes you a long time to read about patents. They are written to be very terse on purpose and difficult to read. If it takes you several hours to read a patent do not feel like you cannot read a patent in an hour or so, that there is something wrong with you and that you should not be doing this. It is not true. You take as long as you need, and sometimes you need to read it repeatedly. That is one of the big things that I learned early on. It is that there are still things that you might miss. You have to be familiar with the patent claims and specifications. It can take a while.

Noah Bolmer: Sage advice. Thank you, Professor LaViola, for joining me today.

Professor Joseph LaViola: Thank you, it was fun.

Joseph LaViola, Professor of Computer Science at the University of Central Florida

Dr. Joseph LaViola, is a professor of computer science at the University of Central Florida, and the Director of the Interactive Computing and Experiences Research Cluster. He is the founder of Fluidity Software and JJL Interface Consultants and a senior member of ACM and IEEE.