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, 2025
- Blog
- Agile Development
- Expert Commissioner
- IT Litigation
- Software Development Litigation
- Technical Expertise
Litigation in software development is not merely a legal dispute. How well you can make the judge understand the technical expertise significantly determines the outcome. Developing a persuasive argument is key.
What if your company’s technology is not evaluated correctly, leading to an unfavorable judgment? This article explains based on actual offense and defense in development litigation. Let’s learn the “way of communicating expertise to win” that developers and managers should know.
The “Technical Understanding Barrier” Faced in Software Development Litigation
In software development litigation, the level of understanding of IT technology is crucial. The judge’s and the opposing party’s level of understanding greatly affects the proceedings. This is the first major barrier that developers face.
For example, in a past trial, a judge remarked, “Agile development is no different from public works projects.” It is difficult to bridge such perception gaps through oral explanations alone.
It is necessary to carefully explain from basic matters in writing. For example, the differences between Agile development and Waterfall development. Such steady efforts are essential.
Especially when proceedings shift to mediation, the situation changes completely. Third-party experts get involved, and the premise of technical arguments changes significantly. There are cases where the opposing party, who had previously avoided technical arguments, suddenly starts to panic. How to accurately convey specialized content to non-experts? This is the first hurdle.
Two Tactics to Advantageously Advance Software Development Litigation
To overcome the barrier of technical understanding and advance the litigation advantageously, two tactics are extremely important: “borrowing the power of experts” and “fighting as a team.”
① Strategically Utilize Expert Commissioners
In litigation with technical issues, expert commissioners are reliable. Expert commissioners play a role in assisting the judge. However, it is not guaranteed that the expert commissioner will understand your company’s arguments. Therefore, their selection is a “double-edged sword.”
There are risks with the expert commissioners chosen. Someone who talks about PM (Project Management) with a shallow understanding of technology. Someone who brandishes a one-sided “user-is-king-ism.” The possibility of such expert commissioners being selected is not zero.
That is why you should recommend expert commissioner candidates from your side. It is important that they can correctly understand your company’s arguments and have a background that the opposing party will also accept. These two points are crucial.
[Expert’s Comment]
Expert commissioners (senmon iin) and mediation commissioners (chotei iin) are different. Mediation is fundamentally based on discussion. On the other hand, expert commissioners in litigation directly influence the judge’s decision. Which procedure to choose should be carefully judged by assessing the nature of the case.
② Form the Strongest Team with On-site Engineers
The source that gives persuasiveness to your arguments is the words of the engineers themselves who were on the front lines of development. Even if a lawyer explains the hardships based on hearsay, the words tend to be superficial. Just saying “this code was tough” doesn’t resonate.
If the judge or others ask about the development hardships, immediately start preparing with the on-site engineers. Borrow the power of experts (engineers) who know more about the technology than you do. By doing so, the logic of your argument becomes more robust.
Through this process, your argument gets refined. As a result, the more you argue, the more advantageous the situation becomes.
[Important] The Outcome of Development Litigation is Decided by the CEO’s Cooperative Stance
The most troublesome thing for lawyers in software development litigation is the CEO’s “hands-off” (houchi purei) attitude. An attitude of “I don’t understand the law, so I’ll leave it to you” is dangerous. If they are uncooperative, the possibility of losing the case becomes very high.
What lawyers “can do” and “cannot do” is clear. There is information that can only be known on-site. For example, technical specifications and the development process. Engineers and managers must proactively provide these. It is necessary to supplement the lawyer’s explanation.
The background of development that isn’t conveyed by meeting minutes alone. The basis for estimating story points. These can only be explained by the parties involved on-site. Lawyers cannot operate on speculation.
Litigation is a last resort. But when you step into that ring, what ultimately matters is the team’s unity. And, it is nothing other than well-prepared, detailed logic.
Question: What are the tips for making a judge understand the technology in software development litigation?
Answer: The conclusion is to avoid technical jargon and explain visually using diagrams, charts, and demos. The reason is that judges are not IT experts, so oral explanations alone have limits. As a supplement, specific testimony from on-site engineers adds persuasiveness.
Question: If an “expert commissioner” is chosen in litigation, will it always be advantageous?
Answer: It is not necessarily always advantageous. The reason is that if the expert commissioner does not understand your company’s technology or development methods (e.g., Agile), there is a risk they will submit an unfavorable opinion to the judge. As a supplement, a strategy of recommending candidates yourself is also important.
Question: In development litigation, what and to what extent should management cooperate with lawyers?
Answer: The conclusion is that they should not have a “leave the law to you” hands-off attitude, but should proactively provide information on technical specifications and the development process. The reason is that the on-site background and hardships not found in the minutes can only be explained by the parties involved. A unified team structure of lawyers, engineers, and management determines the outcome.
Question: How is Agile development litigation different from Waterfall?
Answer: The conclusion is that the interpretation of “specification changes” becomes the biggest point of contention. The reason is that while Agile presupposes changes, it is often claimed as a “breach of contract” from a Waterfall perspective. As a supplement, it is necessary to prove the legitimacy of the development process from the ground up.
Author Information
Akasaka International Law & Accounting Firm
Attorney at Law Shinji SUMIDA
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