Litigation Risks and Practical Safeguards for Contractors in Agile Development (Part 6): The Gap Between a Judge’s Understanding and That of Mediation Experts
Jul 04, 2025UP!
How a Software Development Lawsuit Reveals the Crucial Role of Communicating “Expertise”
Disputes over software development are never just legal arguments. Their outcome heavily depends on how effectively you convey technical expertise to the judge and deliver persuasive, credible arguments.
Lessons drawn from real-life courtroom battles show developers what they must understand about litigation realities.
A Courtroom Is a Test of Everyone’s “Level” — Judges and Opponents Alike
One key insight that emerged during litigation was that both the court’s understanding of IT and the opposing party’s technical literacy significantly influence how the case proceeds.
At one point, the presiding judge commented, “Public works construction isn’t much different from Agile development.” It was at that moment I realized the limits of verbal explanations — we needed detailed written briefs to clarify the differences.
Communicating technical nuances accurately to non-experts always requires steady, patient effort.
The situation shifted dramatically when the case transitioned to mediation. Until then, it was clear that our arguments had limited impact on the judge — not due to a lack of validity, but because the explanation cost was high relative to its perceived value. In contrast, the opposing side suddenly appeared visibly flustered once an external specialist got involved. A third-party expert can completely change the playing field.
“Expert Advisors” Are a Double-Edged Sword — Their Quality Varies Widely
In such circumstances, having an expert advisor (“senmon iin” in Japanese practice) can be invaluable. But it’s important to recognize that they’re not always reliable allies.
An expert advisor won’t automatically understand or agree with your arguments. Sometimes, you get someone who only superficially understands the technology yet acts like a project management authority — or someone who rigidly champions “user supremacy” without balance.
That’s why it’s so important to strategically request an expert who can grasp your claims accurately and satisfy the other side’s need for credibility in the judge’s eyes.
A poor choice here can backfire badly.
Build the Strongest Possible “Party” With Your Allies
When I first met the mediation panel, I was asked about the technical challenges and the realities of the development process. I immediately sensed they wanted to hear directly about the frontline conditions. So, I began preparing with the actual engineers involved.
Why? Because a lawyer who has never been in the trenches explaining which code required how much effort will always sound superficial. The most credible explanation comes directly from the engineers who fought on the front lines.
If you find an expert who knows more than you do, leverage their strength. Use them to refine and deepen your logic. This process sharpens your position and creates more leverage the more you argue.
At the Root of It All: The Leadership’s “Understanding”
One of the greatest obstacles for a lawyer is being left in the dark. A company executive who says, “I don’t understand the law or litigation, so just handle everything for me,” but refuses to cooperate is setting up the case for failure.
Persuasive explanations in court rely on cooperation between lawyers, engineers, and management. An executive who cannot grasp this should accept defeat and pay what the other party demands rather than hoping for a miracle.
The belief that “the lawyer will somehow fix this” is dangerously naive. A lawyer’s vague promises of “I can do everything” are the root of many disputes. It is far more important for the lawyer to draw a clear line between what they can and cannot do — and for the company to actively fill the gaps.
No matter how talented an engineer is, they can’t fully grasp everything happening on the ground alone. And it’s equally risky for engineers to assume they have conveyed everything, then leave the rest to the lawyer. Internal meeting minutes are typically drafted just to the level insiders understand. Story point estimation and similar Agile details are often highly subjective — no one outside the team knows these nuances.
Lawyers do not operate on assumptions.
Litigation should always be the last resort. But if you must enter the arena, what matters most is a well-prepared logic supported by a tightly unified team.
Note: While “mediation experts” (調停委員) and “technical experts” (専門委員) are technically distinct, in practice it can be strategic to request a mediation process that includes members with deep technical insight when you know that the quality of an appointed expert advisor could vary greatly.
Key takeaway:
In software development disputes, technical credibility must be strategically communicated — and that means the real work begins long before you ever step into court.
Your lawyer alone cannot win it for you.
Your strongest asset is a cohesive team — leadership, engineers, and legal — who understand the stakes and their roles in supporting each other’s arguments.
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