Mike Slinn

Technology Expert Articles for Attorneys

Introducing the Technology Expert Article Series

Engineering is a disciplined approach to applying technology for value generation. Creative technologists develop intellectual property. Intellectual property becomes a trade secret when it is valuable, or is expected to be valuable, provided that a reasonable attempt is made to keep the details secret.

About These Articles

This is one of a series of short articles written for attorneys to help them work effectively with technology experts in general and software experts in particular. The topics are drawn from my experience as a technology expert over the last 18 years.

No formal training or accreditation is required or available to qualify as an expert witness. Consequently, experts possess a wide range of capabilities and experience. My purpose in writing these articles is to discuss what I bring to an engagement. These articles discuss the professional philosophy that I employ and my general approach to engagements.

In contrast, individuals who previously worked as technical marketing employees for software vendors sometimes remain faithful to the messages that they worked on during the course of their employment. An expert who is insensitive to the facts of the case and how the market has changed since their former employment cannot be said to be impartial.

Many of the attorneys that I work with do not have a technology background. Other attorneys that I have worked with are themselves experts, often with advanced science or technology degrees, but attorneys cannot testify, so they engage me to speak to the facts of their case.

I wrote the following articles with a minimum of technobabble. Definitions are provided for those terms of art that need to be discussed.

  1. Introducing the Technology Expert Article Series
  2. Empirical Truth and Probability
  3. Detecting Software Copying
  4. Technical Explanatory Videos
  5. Expert Witness Mantra: What I Know, How I Know It, and What It Means to Me
  6. Enterprise CRM & ERP Disputes
  7. Remote Testimony

RSS feeds are available for just the expert series of articles and all my articles.

Depending on qualifications and experience, technology experts might be able to:

  • Respond to questions about a technology
  • Respond to questions about a product or family of products
  • Compare and contrast technologies and their applications
  • Compare and contrast products or families of products
  • Respond to questions about the development of a technical product or service
  • Respond to questions about potential or actual applications of a technology

Often the expert writes a report that addresses specific questions posed by the client, after which the expert discusses the report in confidence with their client. If the report is sent to the opposing side of the case the expert will most likely need to defend their report under oath.

Structuring the Client / Expert Relationship

Justice cannot be said to exist if some people have privileges before the law that others do not. To this end, I apply the same terms and conditions to all clients.

Sometimes my findings are not what the client wants to hear. The most effective way to ensure that I can be frank with clients is to have them pay in advance. I have found that an evergreen draw-down retainer is mutually convenient.

I was once retained by a company to render a preliminary opinion on whether litigation that they were contemplating might have merit. In order to develop my opinion, I had to download and reverse engineer the prospective defendant’s software without their knowledge. Having done that, my opinion was that there was likely no intellectual property infringement, and I suggested to my client that they make a business deal with the other party instead. I suggested this because during the course of my research, I came to believe that the other party had developed better software using a different approach. This suggestion was unpalatable to my client but as I explained, until my client reworked their own product to match the fresh and modern technology used in the other party’s product, my client’s only other recourse would be to compete on a non-technical basis. This would have required them to expend a significant amount of additional resources for sales and marketing. My client followed some of my advice, and never initiated litigation; the other party never knew they were in the crosshairs. However, my client did not attempt to develop a business deal.

The "Let’s Make a DEAL" logo is copyright CBS

Games Some Attorneys Play

There are millions of competent technologists, but few are comfortable in the role of high-profile participant in an adversarial justice system. Attorneys should be aware that when a legal case requires the opinion of a technology expert with specific skills, or a specific background, it is not uncommon for certain qualified and experienced experts to be contacted by both sides.

Some attorneys attempt to engage all available experts at no cost to themselves or their clients. It is quite easy to retain an expert – all that is required is for the expert to agree to the terms expressed in an engagement letter. The letter might mention an attractive hourly rate with favorable terms, but these particular attorneys never assign any work.

Experts that have been engaged in this manner cannot ever work for the other side; they have been taken out of action for the remainder of the case. Patent trolls in particular commonly employ this tactic.

The solution that I use is simple: my standard terms and conditions include a non-refundable minimum engagement fee. I have found that a fee equivalent to 2 day’s billings is sufficient to discourage this practice. I stipulate that this minimum fee must be received in full before an engagement is deemed to begin, within a short time period. If the fee is not received in time, then I am available to be engaged by the other side without conflict. I inform prospective clients that they should not tell me any non-public details about the case until their minimum engagement payment has cleared.

What is Software?

The IEEE Standard Glossary of Software Engineering Terminology defines software as:

Computer programs, procedures, and possibly associated documentation and data pertaining to the operation of a computer system.

Many people are surprised to learn that software is not just program code. Software is a term that applies to all digital artifacts pertaining to the development of a program, including the program code, documentation, associated data, and more. Non-programmers regularly create new software artifacts; for example, technical writers write documentation, which is a form of software.

Considering that transcripts of conversations between technicians are a primary source of documentation, those transcripts might also be included in the definition of software. This might include git commits, Jira / Pivotal Tracker / Trello logs, and transcripts of chats in online forums where developers talk to each other about the software project that they are collaborating on. I am skilled at weaving multiple sources of information together into a chronology, and then inferring habitual behavior from the transcript. This insight can be used to determine where to look next, and what to look for. It is amazing what one can find when one knows what to look for!

Software engineer word cloud image © webopedia.com

Git is a free and open-source distributed version control system (VCS). It became the most popular VCS in 2008.

Version control systems popularity in 2016; © rhodecode.com

Git is particularly useful for determining what particpants did during a software development project. Because git normally retains the complete history of all the contributions made by the technical team as they work together to create software, a software expert should examine the git history early in a case. Sometimes the git history is doctored in an attempt to remove evidence. In a recent case easily identified when that had happened, and the person who erased the git history had no choice but to admit that he had erased the history when deposed.


The articles in this series explore topics of interest to attorneys who are contending with cases involving intellectual property issues of software or hardware. This article discussed issues of clear, honest communication between experts and attorneys, how to avoid the problem of mass engagements of experts designed to deny qualified and experienced experts to the opposing side, and the importance of constructing a detailed chronology of the dialog between those involved in development projects.

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