How a software expert witness can strengthen your case in software failure litigation

Software plays a vital role in nearly every business sector, whether it’s supporting essential operations, customer interactions, or product functionality. Needless to say, when software fails, it can lead to substantial losses, business disputes, product liability claims, and contract breaches. Software failure litigation requires specialized knowledge to determine causes and liability, and this is where software expert witnesses play a pivotal role.

Read on as we explore the role of software expert witnesses in software failure litigation, including how they evaluate software for defects, establish liability, and provide courtroom testimony that can make or break a case.

The Role of a Software Expert Witness in Software Failure Litigation

A software expert witness brings specialized technical knowledge and industry experience to litigation, helping both plaintiffs and defendants navigate complex technical issues that may not be easily understood by legal professionals, judges, or juries. Their primary responsibilities include:

• Evaluating the software for defects or performance issues
• Determining liability for the failure
• Providing clear and objective testimony on technical findings

Whether it’s a malfunctioning software update or a faulty application leading to financial losses, software expert witnesses play a crucial role in presenting clear evidence to support legal claims.

The Process of Evaluating Software for Defects, Bugs, or Performance Issues

In software failure litigation, the expert witness conducts a thorough analysis of the software in question to identify the root cause of the failure. This process involves several key steps:

1. Conducting a Code Review

The expert witness will review the source code to identify bugs, errors, or architectural flaws that may have led to the software failure. This step requires extensive programming knowledge, as the expert will analyze the code to determine if there are vulnerabilities or logical errors that could affect the software’s functionality.

• Source: A comprehensive guide to code review in litigation can be found in The Importance of Code Review in Software Failure Analysis, published by IEEE Xplore.

2. Examining Software Design and Architecture

The design and architecture of software can reveal insights into why it failed. The expert assesses whether the software’s architecture aligns with industry standards, and if the design was sound and robust enough to handle its intended tasks.

• Source: For insights into industry standards for software design and architecture, see the ISO/IEC 25010:2011 Systems and software engineering – Systems and software Quality Requirements and Evaluation (SQuaRE) – System and software quality models on the ISO website.

3. Analyzing Testing and Quality Assurance Practices

If testing and quality assurance (QA) practices were insufficient, they could be a contributing factor to the software failure. The expert reviews the software’s testing documentation to determine if thorough QA processes were followed or if the failure could have been avoided with better testing.

• Source: The International Software Testing Qualifications Board (ISTQB) provides guidelines and standards for software testing practices that experts can reference.

4. Identifying Environmental and Compatibility Issues

Software may fail due to incompatibility with specific operating conditions, hardware, or other software. An expert witness will consider the environment in which the software was deployed and evaluate if compatibility issues contributed to the failure.

By conducting a comprehensive review, the software expert witness can pinpoint the root cause of the failure, whether it’s an internal coding issue, an architectural flaw, or an external compatibility problem.

Determining Liability in Software Failure Cases

In addition to identifying the cause of failure, a software expert witness can help establish liability in software failure cases. Determining liability is critical, as it affects which party may be responsible for damages, remediation, or other consequences.

a. Assessing Contractual Obligations

Many software-related disputes arise due to alleged breaches of contract. A software expert witness can analyze the software to determine if it met the requirements specified in a contract, such as performance benchmarks, security standards, and reliability metrics. If the software didn’t meet these contractual standards, the expert witness can testify on the specific ways the software fell short.

b. Identifying Negligence in Development or Maintenance

If a developer or service provider failed to meet industry standards in developing, testing, or maintaining the software, they might be liable for the failure. A software expert witness can assess whether reasonable practices were followed, providing insights into whether negligence or poor-quality work contributed to the issue.

c. Attributing Third-Party Responsibility

In cases where third-party integrations are involved, the expert witness can analyze whether the failure stemmed from an external component. This analysis helps determine if the original developer or a third-party provider is responsible for the software’s failure.

By identifying the party responsible for the failure, software expert witnesses provide essential evidence to support legal arguments, helping the court determine liability and assign consequences appropriately.

Real-World Examples: How Software Expert Witnesses Have Influenced Case Outcomes

Software expert witnesses have played key roles in high-profile cases, influencing court decisions by providing detailed technical insights. Here are a few notable examples:

1. Patriot Missile Failure (1991 Gulf War)

A famous case involving software failure was the Patriot missile system’s malfunction during the Gulf War, which led to the loss of 28 American soldiers. A software expert identified that a software bug caused the system to miscalculate time, which resulted in the missile defense system’s failure to intercept an incoming missile. Expert testimony on the software bug’s cause was crucial in investigating this tragic incident.

• Source: The Patriot Missile Failure case has been extensively covered, with technical analysis available from NASA’s Technical Reports Server.

2. Knight Capital Group’s Trading Software Failure (2012)

In 2012, Knight Capital Group suffered a $460 million loss due to a software glitch that caused erratic stock trading. An expert witness conducted a detailed analysis of the software’s code and system configurations, identifying the specific bug that led to the erroneous trades. The expert’s analysis provided valuable evidence in litigation, helping determine liability and contributing to the resolution of the case.

• Source: Knight Capital’s software failure case study is documented in IEEE Spectrum.

3. Case of Therac-25 Radiation Overdoses

In this medical device case, the Therac-25 radiation therapy machine delivered overdoses of radiation to patients due to a software error. Expert witnesses analyzed the software’s design and coding errors, concluding that insufficient testing and QA practices contributed to the malfunction. The expert’s findings influenced product liability discussions and led to changes in software QA standards in the medical field.

• Source: A detailed analysis of the Therac-25 case can be found in Medical Device Software Standards and FDA Guidance on the FDA website.

The Importance of Software Expert Witnesses in Software Failure Litigation

Software expert witnesses play a critical role in software failure litigation by conducting in-depth technical analyses, identifying the cause of software failures, and determining liability. Their expertise helps clarify complex issues for the court, providing clear and reliable evidence to support or challenge claims. Whether representing plaintiffs or defendants, software expert witnesses are instrumental in establishing the facts of a case, ultimately contributing to fair and informed legal decisions.

At Eureka, our expert witness services are designed to support clients in software failure litigation by offering precise technical insights, conducting thorough analyses, and providing clear, objective testimony. With our team’s extensive experience in software development and technical analysis, we help strengthen your case and increase your chances of a favorable outcome.

Contact Eureka today to learn how our software expert witness services can make a difference in your case.