Legal Abstract

by Daniel D. Owen

Computer systems are among the more abstract, complex things that most people, including lawyers, will ever encounter.

This abstraction and complexity make litigating cases involving failed computer systems extremely difficult and I have seen it lead to some bizarre and unfortunate results.

I worked as a computer programmer for several years before law school, during which time I wrote and supported software for a variety of computers ranging from micros to mainframes. As an attorney, I do a lot of computer-related litigation, and am always amazed at how differently lawyers approach computer cases, as opposed to cases with more familiar subject matter.

I was once called into a case a few weeks before trial. The issue was whether certain custom-write software worked properly. It came to my attention that none of the attorneys had ever subpoenaed the software that was the subject of the litigation. One of the attorneys had hired an expert who was ready to give opinions about the quality of the software, without having ever seen it. He was basing his opinion entirely on what other people said about the software. Needless to say, neither attorney was prepared to actually show the working (or non-working) software to the jury.

I was struck by the thought that, if the case had involved an alleged defective building, rather than alleged defective software, both attorneys would have sent their experts into the building to get pictures and video and most likely tested parts of the building or otherwise collected evidence about the building’s performance. Because com-puter software is so abstract and complex, and so widely misunderstood, many fail to recognize that these same kinds of investigations are possible for computer software.

Unfortunately for businesses that may become involved in computer systems litigation, many attorneys simply do not have the technical background to understand the subject matter about which they are litigating. My observation is that many attorneys simply give up on any attempt to truly understand the computer hardware and software involved, and rely entirely on the opinions of experts. This is problematic because it is not possible to find, retain, work with, and understand an expert witness without a good understanding of the subject matter. Put simply, no matter how talented an expert witness is, the attorney still has to know enough about the subject matter to ask the right questions.

An attorney also has to know enough about computer systems to be able to effectively create and respond to pre-trial requests. I once received tens of thousands of pages of material that had been reviewed by a major law firm on behalf of one of the country’s largest technology companies. The case involved a potential $200 million cost overrun in the implementation of a major system. The vendor had failed to provide sufficiently powerful computer hardware to run the software. The software was a rather unusual, but very expensive, system for very large businesses. The failure to “size” the hardware could be clearly seen in the lack of “normalized financial dialog steps” which is a highly unusual, esoteric measure of computer power.

I am sure the attorneys that produced the documents thought that they had adequately reviewed them, but they had handed us the smoking gun, which got the case settled quickly on very favorable terms for our client.

What can a business do when it finds itself heading into litigation about computer systems? The idea of letting your IT department, or your outside IT consultant, help pick your lawyers probably strikes most executives as odd. However, only a person with serious computer systems training can discern whether a lawyer knows his or her stuff when it comes to computer systems. Even a lawyer who has represented your company very well in a variety of non-computer cases for many years might not be the best choice in a computer systems lawsuit. The best advice for businesses is to educate themselves about the subject matter, and then be sure they are represented by lawyers who are equally well informed.

 

Daniel D. Owen is a shareholder at Shughart Thomson & Kilroy, P.C. specializing in computer litigation and a former computer programmer.
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