Why having a software industry expert witness at the start of your cases makes the end easier

It is important right from the beginning of your software-related case to support your allegations and/or defenses with a software industry expert’s advice and input. The more complex your case and the software involved, the sooner you should consult with an expert.

Even if the client knows and built the software involved, having an independent expert to confirm and verify the technical approach you intend to pursue is critical to starting your case in the right direction. Even a highly intelligent and technically skilled attorney can benefit from hiring a strong, independent software expert to help insure that the early assessments of their own client’s software (and/or the software of the opposing party) are complete and accurate as well as make sure that all legal theories and defenses are being viewed from an objective perspective. Technology experts can also serve as an important independent counterbalance to biased or overly optimistic client positions. Such early involvement also allows the experts to fully understand the background and core theories of the case and to be available to assist with any early challenges to such theories.

Particularly when it comes to litigation involving software patents, software trade secrets, and other source code review and comparison, retaining an experienced software expert before any papers are filed or served can save time, money, and precious credibility with the court by avoiding having to amend or refile pleadings or missing vital theories or defenses. What you can learn from your expert during his or her first review of the subject material (source code, patents, etc.) will help the attorneys and their client understand the realities of their case from a technical perspective and develop the theory and strategy of the case with such full understanding in mind. This is important because now more than ever in software litigation, and particularly software patent litigation, you need to put your best case forward to be successful.

There are major landmarks in your litigation where an expert’s advice is essential. The exchange of any paper discovery, especially interrogatories answers and requests for production, is critical to how you will support and litigate the key facts and theories of your case. The questions you ask and documents you request are typically limited in number by discovery rules, so having the help of the expert who has and will be looking at the software at the heart of the case will allow you to be focused and precise in obtaining the most important information from the other side. Likewise, the answers you provide and the documents you produce are tangible and written documents which cannot be taken back once submitted, and an expert’s perspective and input on such answers and production can help you understand their impact and avoid them coming back to haunt you later in the litigation or at trial.

The production of and review protocols related to software and source code in technology-related cases can be particularly important and sometimes contentious. An experienced expert can advise the legal team on efficient and effective protective order creation and protocols for materials that are often designated as Attorney’s Eyes Only (AEO). In addition, when disputes arise relating to software discovery for a particular case, an experienced expert can present strong arguments as to what is common in other legal venues across the country as well as in industry. Such critical discovery disputes can often result in hearing testimony and/or declarations by a qualified expert. For many technology cases, the key discovery battles will have a major impact on the remainder of the case.

Preparing for depositions with your software/technology expert’s input – particularly with regard to opposing experts, inventors, developers, and other key technical witnesses – will also help you and your client ask the most relevant and revealing questions and/or provide the most appropriate testimony to support the key technical elements of your case. In fact, actually having such expert attend the depositions of opposing technical witnesses and experts can serve to keep such witnesses “honest” when it comes to technical issues, will help you formulate the best questions to pin down the key testimony you are seeking, and identify when the witnesses’ testimony is not technically accurate or is inconsistent with the software in question. This is often critical for impeachment purposes later in the litigation.

Every case should be litigated as if it is going to trial, even if it looks like the case will settle. If you try to save costs early by not involving the necessary expertise, there is a good chance your opponent may not be doing the same, and they will gain an advantage. Even worse, your opponent will realize, or at least believe that he has an advantage, decreasing the chance of a favorable settlement for your client. Retaining and using your experts early in the litigation will help you avoid this and make the end of the litigation easier.