When he was a little boy, Robert A. Van Nest knew he wanted to be a lawyer. The Prairie State native originally envisioned himself advocating for the positions of others, fighting for underdogs and defending righteous causes.
But after working nearly two years in politics, the Harvard Law School graduate knew that wasn’t the right practice area for him, he says. Instead, he has spent decades representing high-profile clients in intellectual property litigation.
“Like every kid in Illinois, I admired Abraham Lincoln and I thought I’d be a lawyer in politics,” Van Nest said. “I actually worked in politics for two years and found it to be so, so distasteful I decided to be a trial lawyer, thinking that would be a lot better.”
Van Nest joined what came to be Keker & Van Nest LLP as an associate in 1979, gaining trial experience in white collar and civil fraud cases for several years. By the end of the 1980s, technology companies were looking for attorneys who could not only be knowledgeable with the technical aspects of IP law, but who could also translate complex technology disputes for jurors in a trial setting.
Having majored in history at Stanford University, Van Nest has an advantage as an IP litigator, he says, as he often asks other attorneys or experts more fundamental questions about the related technology that can anticipate what jurors are going to find important or confusing about a case.
“I have a great interest in science, but I don’t have a science background. I’ve always been interested in technology, but again, I don’t have a technology background,” Van Nest said. “I think the combination of interest and common sense is one of the things that helps you figure out what the jury may be wondering about.”
When he is preparing for trials, Van Nest says, he spends a significant portion of his time anticipating and literally charting out what he believes his litigation adversary will do.
“With all the pretrial disclosures that we now require in federal court, you have available to you a lot of the thinking of your adversary,” Van Nest said. “I think a lot of lawyers overlook that. I don’t.”
While he hardly ever scripts out opposing counsel’s side perfectly, Van Nest says he has gotten increasingly better at it over the years, through a combination of experience and the advantage of pre-trial disclosure requirements.
Once he’s considered and narrowed down the other side’s probable arguments, he says, he identifies and refines a few of his most salient responses, using focus groups to test out his theories.
“I hope that when I miss, it’s that the other side’s presentation is not as effective as I thought it would be,” Van Nest said. “I’m trying to anticipate not only what they’re going to do but the most effective thing they could do.”
Van Nest is incredibly organized behind the scenes, minimizing the frantic scrambling that can easily occur in complex IP cases that feature many moving parts by adhering to a minute-by-minute game plan for what has to happen on each day, according to Catherine Lacavera, director of IP and litigation for Google Inc.
“It’s a really well-orchestrated symphony, and he’s the conductor,” Lacavera said. “I’ve worked with a handful of great trial lawyers, and he is certainly among them. There are very few people who can run a case like Bob can run a case.”
Van Nest’s approach allows clients to feel at ease in the midst of a chaotic environment, as they know that they are being well advocated for, she says. In the Oracle America Inc. v. Google Inc. case that recently wrapped up, Van Nest always had words of encouragement for the members of his team, acting like a gentleman with everyone involved in the process, Lacavera recalled.
The stakes in the trial were certainly high: Google was staring down the prospect of being held liable for as much as $8.8 billion in damages in a planned second phase had the jurors had found that Google improperly used Oracle’s copyrighted Java software code.
“His closing arguments in the Oracle case were one of the best closings I have ever seen,” Lacavera said.
The May 26 verdict, coming after nearly six years of litigation and a closely watched two-week trial in San Francisco, said fair use permitted Google to do precisely what Oracle believed was illegal: directly copy certain elements of application programming interfaces that Oracle created for its Java programming language and then incorporate them into Google’s own Android platform.
In the relatively small world of IP litigation in Silicon Valley, Van Nest is on the short list of attorneys whom entities will consider when they are seeking representation in significant matters, according to Joe FitzGerald, Pure Storage Inc.’s general counsel.
FitzGerald says he’s impressed by Van Nest’s level of involvement in all facets of a case, not just at a pitch meeting and at trial.
“That’s a refreshing experience, to be able to work with him and have him up to speed on the details of your matter,” FitzGerald said. “When you hire Bob, you get Bob, and that’s really key.”
Van Nest says he helped to minimize the damage for Pure Storage in a trial that began with the jury being told that the data storage company had infringed one of three data storage patents held by EMC Corp., which was seeking $84 million in lost profits.
The jury agreed in March with Pure Storage’s assertion that it should only have to pay $14 million in royalties and cleared the company from claims that it had infringed the other two patents at issue in the case.
FitzGerald says Van Nest’s trials are incredibly well-organized and that he acts like a “true gentleman” toward the members of his team. Van Nest allows varying points of view on legal strategies to be voiced and to be given proper weight, he said.
“He lets the voices be heard, but he is not afraid to ultimately make a decision,” FitzGerald said. “He gets people involved and makes sure that everyone is on board with the decision and that the team moves forward.”
John Keker, Van Nest’s longtime partner, says Van Nest is incredible at working with judges at setting the ground rules for a case and at being able to break down complex matters for juries in ways that they can relate to.
“He’s got that Midwestern openness and straightforwardness that people naturally trust,” Keker said. “He doesn’t make arguments that he doesn’t believe in or can’t be defended. He zeroes in on the weakness on the other side’s case and figures out how to win.”