Choosing a software expert witness for your case: why experience matters

Software related litigation is growing and more cases reside in our courts than ever before. This is because the importance of software patents and trade secrets has grown as the role of technology has pervaded nearly every aspect of the world today. Nearly every industry (from oil and gas to automotive to travel to entertainment to communication to banking and financial) now involves complex software. The market demand for software innovation is high, and competing technology businesses are looking for edges over each other. Largely publicized cases involving technology and industry giants like American Airlines, Microsoft, Apple, Samsung, Oracle and Google have created major legal precedent and brought light to these issues. But like the technology involved, this area of law is still evolving and will continue to evolve as technology advances.

Thus, it goes without saying that software litigation is complex and difficult. Even the most straightforward cases require hundreds and even thousands of hours and significant resources to prepare for and litigate. These types of cases range from patent infringement, which requires meticulous preparation and resources to understand the intricacies of the patent claims and specification in relation to and accused infringing product, to trade secret litigation, which involves in-depth investigations and comparisons of code.

Like other types of litigation, such as medical malpractice cases or murder trials, the right type of expert in a software patent litigation case must have the experience necessary to support and prove your case. You will need an expert for multiple aspects of your case, from every stage, beginning with your pre-litigation investigating, continuing through discovery, and finishing with preparing for and testifying at trial. Using your expert to help establish your theories of liability helps prepare your attorneys for interrogatories, depositions, and record requests during discovery to best position your case for trial.

Early in the software related case, an expert can help you analyze code to establish and focus your theories of liability or defense and effectively conduct and review software related discovery. This requires an expert to review the written code making up the your own client’s software and evaluate how it does or might compare with the opposing side’s software. In order to effectively do this, your expert must be familiar with various programming and coding languages and the tools necessary to view and understand the code and its history. Analyzing a software program’s code is often not as simple as merely putting the software through its paces or understanding the functionality of such software. Even basic programs contain a complex matrix woven together like an intricate maze. It takes a trained and patient expert to navigate the proper path within the parties’ respective code and identify sections and segments relevant to the litigation and their client’s theories and interests— sometimes these portions of code could be a mere few hundred lines, or they can number in the millions of lines of code.

Your expert is also required for expert testimony prior to and at trial. This is a different skill set than reviewing and deciphering code in front of a computer screen. Experienced software expert witnesses understand not only the subject of the litigation, but also the litigation process itself; familiarity with the judicial system and how it works is crucial to presenting an articulate and persuasive case. It is essential that a testifying software expert is comfortable under the pressure of a cross examination and can turn the complicated nature of software code into easily digestible information for a jury or judge.