What to Expect if You Become an Expert Witness in a Software Misappropriation Case

If you are an experienced software developer looking for some extra work you might be lucky enough to land a gig as an Expert Witness in a software ‘misappropriation’ (read stealing) case.  While exciting work, there are some things I have learned about these cases that will be helpful before and after you start work.

In its simplest form “Company A” will have sued “Company B” believing that Company B has illegally acquired Company A’s proprietary software.  You will not be called in before a suit has been filed because the only way for Company A to give you access to Company B’s software is for a judge to rule that the software must be made available.  There will then be a period (Discovery) when the expert and the attorneys will have access to the software from both companies.  Realize that Company A will not be able to see Company B’s code and vice versa.

Also realize that there are two sides to every story.  Company B may or may not have stolen code, but both sides will have an expert witness.  While we all hope that the company in the right will hire us, that is not always the case.  For tips on working with the company that stole code (allegedly), see the end of this article.

With all that being said, here are ten tips to keep in mind.

1 – Make sure you are ready to handle the pressure.  Being an Expert Witness is not something you should pick up lightly.  There can be millions of dollars riding on the case, and as the expert, much of the fact-finding will be on your shoulders alone.  Many people will be depending on you to prove or disprove the theft.  The work product from the expert will frequently be the focus of the entire case.

2 – You will have to be accepted as an expert by both sides.  You need to be impartial, but your credentials need to be good enough that both sides will believe that you can be trusted to analyze the software without bias.

3 – Make sure you have the time.   The experts I have worked with have either been retired, independent consultants or teachers, mainly because there are deadlines which will be imposed by the courts and you cannot miss them.  I have been working up through midnight multiple times to make sure reports and documents are submitted by the cutoff time.  You will probably not be able to take a week off at any time during the process.

4 – Document Everything.  To be successful, your side will need to show not just that the other company copied software (or that your team didn’t) but how you came to that conclusion.  For the judge, the ‘how’ may be as important as the ‘what.’  Make sure you log everything you do and everything that you read as you go.  I promise it will be easier than going back later and putting this information together.

Keep up with:

  • Every software tool you use, even editors and spreadsheet programs.
  • Every page you read on the Internet. Save not only the URL but print the page and save it as a pdf (a tool called CutePDF can come in handy here)
  • Every person you speak with about this project. Be VERY careful here, because you have been entrusted with proprietary information and should not be sharing any of the information you have or produce with anyone other than your side’s lawyer.

5 – Be able to work with lawyers.  You will rarely be speaking with either side directly, nor should you.  You have confidential information about the other company that you cannot risk sharing.  Your primary point of contact will be your side’s attorney.  He is wholly committed to the company that hired him and can be trusted with everything.  Do not keep secrets from him and do not keep him in the dark.  It is a good idea to submit weekly progress reports.  Lawyers love paperwork, so err on the side of giving him too much information.  He will let you know if you are over-sharing.  He may even be the person who hired you and who will be paying your fees.

6 – Be ready to travel.  There will most likely be depositions, and unless both companies are close to you, some of the testimonies will be near the other company’s locations.  Your side’s attorney will ask you to help prepare questions for parties from the other company (programmers, managers, etc.) and will probably want you to attend the deposition itself.  While he knows the law, he probably knows nothing about computer software.  Things will be said during the testimony that you can help him with (during a break, for instance) that can be used for follow-up questions.  During this process, your side’s attorney is relying on you to give him the questions he needs to win his case.  Don’t let him down.  There may also be a need for you to travel to an onsite location to review code and documents.

7 – Take the responsibility very seriously.  You will have access to confidential information from both sides, and you cannot share this information with anyone.  Keep all the documents you are given and the materials you produce (work product) secure.  You cannot tell either side anything you discover, even if you are confident of the conclusion one way or the other.  The ONLY person you can share your thoughts and opinions with is the attorney who hired you.  If there is a message that he feels the client should see, he will make that decision.

8 – Be prepared to write.  A lot.  Both expert witnesses in the case (plaintiff and defendant) will be required to submit a final report.  You can’t just say “They copied software.”  The report will include your background, what qualifies you to offer an opinion, how you reached your opinion(s), how long the process took and your conclusions.  Weekly reports you have sent to the attorney and copious notes you make during the process will be critical in this process.  But it doesn’t end there.  You will be expected to go through the (lengthy) final report from the other side’s expert, pick it apart paragraph by paragraph, and then submit a response to their expert’s report.  Then you may well have to provide an answer to his response to your report.  You get the idea.  And like everything else, all reports have deadlines that must be met.

9 – You will be deposed, and it is not as much fun as you think it will be.  The other side’s expert will have studied your report and be ready with anything he feels can be questioned.  And the only purpose of the deposing attorney (the other side’s lawyer) is to make you look incompetent and render your conclusions invalid.  Your side’s attorney will be with you, but he does not understand much of what was in your report, so you are the point person and the burden rests entirely on you to defend your conclusions.  Remember a few things – there is no need to hurry.  Take time in your response.  If you need clarification, ask.  Remember that you know more about the software issues than the deposing attorney – he is usually just reading questions given by his expert.  Asking him to clarify a technical point may cause him to leave a given item for the moment and give you some more time to think.

One attorney advised that I think of the deposition like a football game.  At the beginning of the testimony, the ball is on the 50-yard line.  If you can finish the day with the ball still on the 50, you have scored an enormous victory.

10 – Unless a settlement is reached, you will have to testify.  Many expert witnesses charge a much higher fee for their time during testimony.  Many also will use a higher rate for depositions.  I have never done that, but it is an accepted practice.  While deposition is rough, testimony in court is a whole different level.  Your side’s attorney should be very helpful in your preparation, but at the end, it will just be you against what seems to be the world.  You have to be able to come across as knowledgeable, believable, trustworthy, polite and professional, all while trying not to look nervous.  Good luck.

10.5 – Be professional and polite to everyone.  Nobody here is your ‘enemy,’ and the lawyer who is making your life difficulty today may well be impressed enough to hire you in the future.  Also, build a cordial relationship with the other side’s expert witness.  If you intend to take another case in the future, you do not want to burn any bridges.

BONUS SECTION

What happens if you are hired by Company B, and you begin to suspect that Company B actually did steal code?  This is a more difficult scenario, but you still have a role to play.  A few suggestions:

1 – Tell your side’s attorney immediately and let him direct you.  If his client did steal software it is likely that the attorney doesn’t know about it.  The theft could have been done by a few rogue employees who have not admitted their actions to management.  Also, there are some reasons it may look like his client is guilty when in actuality he is not.  But the more he knows as soon as possible, the better he can prepare.

2 – Consider alternate explanations.  Perhaps both companies stole software?  Maybe Company A  took code from your side, or the software was in the public domain somewhere.  Maybe Company A was careless and did not copyright their code and left the software in a place where anyone could find it. Perhaps the lines of code you are looking at would be considered Common Knowledge among software developers (look up the terms publicly known, ascertainable and engineerable, common software constructs, etc.).  You may never actually know for sure, and a judge or jury will make the final decision based on the evidence presented.

3 – Don’t quit.  A great deal is riding on this case, and your job is to help your side’s attorney present the best argument that he can.  Legal and expert fees are mounting up, and there is no time to go out and find another expert.  The decision of who sinned in this process is not up to you, and you need to stay with the case for as long as it continues.  If evidence of theft is overwhelming, then your side will probably settle anyway before it ever gets to trial.

4 – Don’t lie or exaggerate.  Relay the facts as best you can discover, offering alternate explanations when possible.  Your side’s attorney will be the ultimate decision maker, but you will probably not want to include everything that you find in your final report.

5 – Remain professional!  If you do an excellent job on this case when you end up on the “wrong side” the lawyer will remember you and may well throw more work your way in the future.

David Hancock’s Internet Base