Software Expert Witness

By: Aashna Duggal |  May 10, 2024

In today’s time and age, beyond evolution, there has been an undeniable increase in the workforce of the corporate world. The key findings of how the world accelerates today involve the exclusivity of technology and computers. The Generation Z is the mastermind behind peak technological expansions.

An expert witness is a person equipped with the specialized knowledge to assist your case with deliberate knowledge. A software expert witness is a highly qualified professional with extensive experience in the technical aspects required for computer software. Such expert witnesses deal with the aspects of development, functionality, and implementation of computer software.

They play a pivotal role in providing their assistance in cases where the understanding of critical or complex issues comes into play. The determination of proving what might be right or wrong is the most critical comprehension provided by such expert witnesses.

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Related

How to Become an Expert Witness

The Key Responsibilities of a Software Expert Witness

By coming into focus in modern times today, software expert witnesses have gained popularity. The gist of the services provided by them resemble that of a computer expert witness. The interconnection between the two is the focal point of incorporating the technical aspects of technology in our day-to-day lives. This is due to the ever-increasing scale of modern technology. The services provided by such an expert witness play a critical role during the legal proceedings. 

Software expert witnesses are called in to testify in a legal proceeding that requires a crisp judgement of the technical aspects of  computer software. Some of the most predominant services provided by them are:

  • The reviewing and analysis of technical documents and source code.
  • The identification of the root causes of enterprise resource planning (ERP) software failures or defects.
  • The determination of information related to cyber-crimes, for instance; 
  1. Software infringement
  2. Phishing
  3. Distributed Denial of Service (DDoS) attacks
  4. Cybersquatting
  5. Malware
  6. Cyberstalking
  7. Espionage
  • The research findings of computer software, providing expert witness reports for legal consultancy.
  • Providing expert testimony in court or arbitration proceedings.

The Disclosure of Expert Testimony Explained

Providing clear, concise, and credible expert testimony is paramount in every legal case. Parties involved in lawsuits have a binding duty to disclose the identity of their expert witnesses to the opposing counsel. Such is intended to happen during a trial, to make a fair disclosure of the expert’s view to avoid any biased judgment.

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The disclosure of such expert testimony is involved in software disputes of all kinds. Such as patent infringement, class action, copyright, trade secret, software project failure, deposition & trial et cetera.

As cited;

  • Traditionally, the courts have not allowed expert witnesses to further testify as to whether a disputed work is so “substantially similar” to an original content. So that it infringes the original work’s copyright. 
  • It is stated in the Opinion on an Ultimate Issue, FED. R. EvID. 704 provides that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
  • There is no more specific test required for determining when experts may be used than the common sense inquiry of whether the untrained layman would be qualified to determine intelligently.
  • Under FED. R. EvID. 611(b), cross-examination may extend to “matters affecting the credibility of the witness.”
  • The expert witness in a software copyright infringement action must cut through the confusion in terminology inherent in the constantly changing computer industry.

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The Vitality of Software Expert Witness

Technology is not just regarded as a tool for productivity and convenience, but also an escape. The overuse of technology often becomes a sanctuary from the problems of the real world. Initially, the computers were people – it remained a job title. The conceptualising of computer software came into existence by Alan Turing in 1935. 

However, the first person to ever develop a computer program was Ada Lovelace in the 1840s. Modern software originated in the 1940s and 1950s. 

Thus, with the commencement of time, issues related to computer software emerged. The interconnectivity of computers made the regular tasks of organization a lot easier for contemporary users.

However, there are pros and cons in every situation. Issues related to computer software became prevalent with the advancement of time. That led the way for software expert witnesses to see the light of the day.

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Who Needs a Software Expert Witness?

Seldom, we may have encountered problems that affect the programs and applications that run a computer. For instance, the issues concerning the operating system, the internal and external drivers, the antivirus, the browser, et cetera.

The most relevant kinds of expert witnesses can be valuable in various kinds of legal court proceedings. Such as in legal court proceedings related to:

  • Litigation:

It includes intellectual property cases based on resolving disputes involving patents, copyrights,  trademarks et cetera.

  • Software Development:

The conflicts that arise between entrepreneur software developers, companies or contractors.

  • Cybersecurity Cases:

The assessment of vulnerabilities and responsibilities concerning the thefts online.

  • Criminal Proceedings:

The legal court proceedings revolving around computer crimes, digital forensics, criminal investigation et cetera.

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Qualifications of Software Expert Witness

  • Educational Background & Qualifications

Software expert witnesses typically possess greater understanding in the fields of cybercrime, digital forensics et cetera. One such individual who is equipped with end-to-end complexities related to computers deems fit to become one such expert witness.

  • Professional Certifications

Certifications can include a degree in computer science, software engineering, and computer and information technology. Relevant certifications consist of:

  1. Certified Software Development Professional (CSDP)
  2. Certified Information Systems Security Professional (CISSP)
  • Relevant Experience

Extensive experience in the informed aspects of digital and forensic crimes, cybersecurity, information technology and related industries. 

  • Communication Skills

A software expert witness must possess exquisite and professional communication skills which are essential for one. In order to deliver the facts precisely, having a crisp command of one’s language and a methodical perspective plays a vital role.

  • Analytical & Research Skills

The computer software expert witnesses are typically requested to testify in cases concerning cybersecurity and cybercrime. Thus, having prominent analytical and research skills to fit the requirements of the case is an essential factor to consider. 

Conclusion

The retention of expert witness services provided by software expert witnesses is critical to technological disputes. Reaching findings, critical research assessments, and preparing expert witness reports are the duties of  such an expert witness.  Furthermore, they delves deeper into the scathing investigation concerning the systems and documents for such services.

Frequently Asked Questions

1. What Are the Highest Paying States for Expert Witness Services in the United States?

As cited on Blue Ocean Global Technology’s website, the District of Columbia, California, New Jersey & Alaska Massachusetts are the highest paying states. 

2. What Type of Cases Does a Software Expert Witness Typically Indulge In?

Such software expert witnesses analyze the critical aspects of legal cases pertaining to cybersecurity and cybercrime.

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Aashna Duggal

Aashna Duggal
Aashna Duggal

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