Technical-Case Expertise is Available. Know How to Use It –

By Sue Spielman

More and more, lawsuits related to technology disputes are coming up. Technology and its place in creating innovative solutions for business are both exploding.  New opportunities, new challenges, new solutions are evident everywhere…and they are being followed, inevitably, by a plethora of lawsuits that result from product deliverables and/or expectations gone awry.  Companies and their contractors are having – and will continue to have in vastly increasing numbers – trouble deciphering what development work actually was contracted, what got delivered, and what payments are due for what.

As a lawyer or a firm representing either a plaintiff or defendant in a case involving technology, you’re consistently confronted with a high-tech jungle of acronyms. From the time you begin by simply trying to figure out how to decipher what the technology involved is or how it relates to your case, to the time you must set a strategy and evaluate the evidence, if you’re not as adept with software as you are with the law, you’ve got a problem.

I’ve got a solution. 

As a by-product of my experience as a expert witness for cases related to high-tech, I’ve come up with the following suggestions to assist you and your firm when working on cases involving complicated technology issues.

• Don’t try to become a technologist.

Few lawyers are trained in engineering and software development. Just as few engineers are trained as attorneys.  Both are complicated and difficult fields that require specific and focused skill-sets.  The best thing to do is to speak with your client and gather as much information about the specific type of technology involved in the case. This information might include a number of high-tech industry acronyms that you aren’t familiar with, but don’t get rattled.  A person who is familiar and well versed in the technology will immediately know what it all means. Find a person who can become your expert in the technology areas that are needed to address your case. Nothing speaks louder then a person who knows what he’s talking about.

• Identify the technologies related to your case.

It is important to try to narrow down what you are looking for in an expert. If there is one thing to know about high-tech, no matter how much someone knows about a technology, there are still other related areas that they might not know.  If someone tells you otherwise, then find yourself another expert to speak with. If your case involves a business application built on the web, there are hundreds of technologies that could be involved. If there are products involved that were provided by specific vendors, identify and list them so you can narrow your expert down. This might include such things as: specific types of computer languages (like Java, C++, C, Visual Basic), application providers (Oracle, Microsoft, BEA, Sun Microsystems), databases (SQLServer, Oracle, MySQL). The more specific you can be up front, the better your chances of finding the expert who matches your needs.

• Find an expert with good communications skills.

Find a technologist who can explain back to you, in plain and simple layman language, what you are telling her. It is quite common for highly experienced engineers to speak their own high-tech language, which sounds like babble to any one other than another engineer. It will be critical for written reports, deposition, and especially trial testimony, that your technologist can express herself so that her points are clearly communicated to others who are not familiar with the terms. Technology is very conceptual, and being able to express such concepts with a minimum of techno-speak is critical to the success of your case. 

• Follow your case strategy.

Review your case strategy with your expert so that he can work closely with you to provide the best possible scenario for your case. While it’s important for a lawyer to not become technologist, it’s just as important for a technologist to not become the driving force in your case strategy. Again, techies aren’t lawyers, but we can identify valuable issues and situations that might be overlooked if not for an understanding of the technology(ies) involved. Along these lines, be open to the idea that sometimes there are issues that can be raised by the technologist that might lead to a better, stronger case strategy for you.  A close working relationship with your expert is important and necessary for success.

Sue Spielman is President and Senior Consulting Engineer of Switchback Software LLC, providing software development and consultancy services for large-scale business and web applications. Additionally, she provides expert witness services concerning complicated technical legal cases to law firms around the country. Reach her by phone at 303.941.3207 or by email at sspielman at switchbacksoftware.com . You can view her abbreviated CV here.