| In a recent article
in The Times, Law Section (23.09.2003), Daniel Barnett, barrister,
supplied a handy solicitors guide to preparing the perfect brief for
Counsel. As an expert witness in over 100 major IT cases worldwide
over the past fifteen years, the following ‘expert’ tips
occur to me, to add to Mr Barnett’s in the cause of assisting
instructing solicitors to help us, the client, and the court…
Appoint me as late as possible
I love the challenge of being asked, just a few weeks before trial,
to examine and test from cold the multi-user computer system in
dispute. That is, to investigate the complete software, databases,
clients/servers and networks for functionality, performance and
usability, and give my opinion as to its ‘fitness for purpose’.
And all this by reference to the complaints as to software/system
defects, deficiencies, delays etc still only superficially expressed
in an inadequately particularised Scott Schedule (the latter containing
over 200 Items, and clearly having taken a team from one of the
parties many months to prepare). At the same time, being required
to take into account thousands of pages and several CDROMs full
of technical requirements and design specifications, system test
results, project management minutes and other critical documents
(some still trickling-in as, whoops, ‘late disclosure’).
I really do need to read the mountain of emails exchanged between
the parties during the course of the system implementation project
– they had the effect of constantly changing the original
contractually certain definition, scope and acceptance criteria
of the requirements for the disputed computer system. Although you
have had them for weeks (months?), it is such good fun to ask me
to try and absorb them at breakneck speed.
Do not let me discuss the case with Counsel before Pleadings
are settled
Barristers are so expensive – often even more costly than
experts. No-one wants the enormous cost of having us both sit down
together for days at the very start, trying to achieve a common,
harmonised appreciation of and insight into the knotty ‘technical-legal-factual-financial
matrix’ which is the hallmark of the typical complex IT systems
dispute. There is surely no need for the Particulars of Claim, or
Defence and Counterclaim, to be settled and expressed comprehensively,
clearly and most effectively at the outset, on a sound technical
basis. Where would be the joy in leaving no opportunity to make
us all look a bit silly in front of the client at some future Case
Management Conference?
Do ask me to assist Counsel
with really late Amendments to Pleadings
Counsel and I prosper in dealing with the very expensive challenge
of re-working the initial 100-page pleadings extremely late in the
day, when I have been frantically appointed and have barely had
chance to form some preliminary idea of what the technical issues
are in this particular case. We do so enjoy working furiously together
against impossible deadlines to draft the major and fundamental
amendments to the pleadings now needed to reflect properly the client’s
real technical case. Heck, we don’t need to worry –
we are assured that the other side is in even poorer shape!
Do not photocopy the expert’s initial reference set
of all the pleadings, case disclosure documents etc onto a distinctive
colour paper (like lemon yellow)
It’s such wild fun to arrive at the position, when you are
up against tough time limits trying to produce several hundred pages
of firm, clear, coherent expert’s report, not to know quite
whose comment was whose, scribbled - when? - on yet another white
A4 piece of paper. It would be too boringly straightforward simply
to be clear by colour-coding that the document was one originating
within the actual IT project in dispute (i.e. it is disclosed documentary
evidence), and not one produced recently, during and for the litigation,
as a working/discussion paper by someone in the client, legal or
expert team (i.e. it is confidential, privileged, non-disclosable).
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Make
sure that the client has not secured a complete, re-installable
system image of the software in dispute
As you know, the court routinely orders without
prejudice experts’ meetings ‘to identify and define
the software and other material which experts need to examine, what
system testing should be done and how the results should be presented
to the court; to isolate, and attempt to narrow, the technical issues;
and, where possible, to reach agreement and take technical matters
out of issue...’. At such meetings I really enjoy agonising
fruitlessly with the expert on the other side over whether or not
there are any correct versions of the software preserved, re-creatable
and available for joint inspection and testing – not to mention
of a proper standard of evidential probity. It’s great that
the parties (and their solicitors) permit us such time-consuming,
lucrative activity simply by having omitted to preserve an agreed
reference system image on re-installable backup media (e.g. DAT
tape, or CDROM) – and/or not depositing a secure copy with
a third-party escrow agent – at the critical time when the
system dispute first crystallised or escalated. What a pleasurable
ordeal it is later for the experts if the ‘best evidence’
rule is ignored, and the crucial point that the software which is
being litigated over is itself going to be the ‘best evidence’
is forgotten!
Do allow the Judge
to make Orders at Case Management Conferences essentially enjoining
the IT experts on each side to ‘get together and sort this
highly technical case out’
I really do try, My Lord... But one of the
really thrilling ‘frustration highs’ I get as an expert
is when, without strong directions from the bench to mandate and
assist me, I find I cannot drive
through any technical simplification of the case (let alone a settlement!)
when the lawyers who have ‘care and control’ of its
process and progress want to do something else, tactically (and
quite properly), to their own agenda, in the interests of their
clients.
Do give me tightly-reined
instructions at odds with my independent primary duty to the Court
I really enjoy being glared at by the Judge
in a CMC – or, even more pleasurably, at trial! – when
I have not been able to do something he and I both know is right,
but which I have not been given formal instruction (or budget) to
do properly, or even at all.
In particular, I have now evolved a rigorous
methodology (in consultation with many instructing solicitors and
Leading Counsel over dozens of cases, in the UK and internationally)
for arriving at a key opinion which is almost invariably asked of
me in software development/implementation contract disputes. This
is: what was the quality of the software, was it fit for purpose,
and, if there were defects, were they material defects justifying
rejection of the software and termination of the contract? My illuminative
‘material software defect test’ is based upon a careful,
objective assessment of:
- the nature and magnitude of the business consequences of the defect;
and
- the time or difficulty to fix it; and
- the (un)availability of any practical workarounds.
But I cannot arrive at a compelling and well-grounded
opinion based on this ‘tried and proven’ test, if you
won’t vigorously pursue an Order – when needed –
for actual live testing of the system in dispute! But, of course,
I do understand that you want to save costs and not have me and
my team operationally and exhaustively test the software –
let alone have me take the system into court and demonstrate it
to the Judge.
All right, maybe you weren’t going to
choose to instruct me along the above lines, or even at all. No
matter. I’ll probably be there anyway, doing my serious best
to discharge my primary duty to the court (but, of course, without
as many nerve-racking thrills and spills) – doubtless instructed
by the lawyers for the opposition, who – with any luck –
will ignore all of the above tips…
Dr Stephen Castell
Chairman, CASTELL Consulting Tel: +44 1621 891 776 Mob: +44 7831
349 162spc
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