Looking Over the Legal Edge at Unsuccessful Software Projects by Herb Krasner

When Software Projects Fail An unsuccessful software project is one that does not fully achieve its stated objectives: Delivery of a software system that works as promised, on the date that was promised, within the cost limitations that were established Subject to various other constraints that were defined in the contract. It’s not just the sunk development expenditure that are at issue, but also the cost implications to the customer of not having that system in place as promised. 6/12/2018

Legal Reasons - 1 A failed project might end up in court for one or more of the following legal reasons: Criminal act. Software is the means of committing a crime (e.g., a Trojan horse that causes someone to die). Liability. Defective software leads to a failure that caused personal injury, property damage, or large monetary loss. Negligence. Negligence involves injury or monetary damage, with an additional concern about whether a reasonable process was used to develop and test the software. 6/12/2018

Legal Reasons -2 Fraud. Fraud involves knowingly making false statements in order to coerce the outcome of an economic decision. Negligent misrepresentation. Fraud in which the statements were not known to be false when made, assuming that due diligence in fact-finding was done. Deceptive and/or unfair trade practices. Practices that exhibit a pattern of misconduct, such as false advertising, making vaporware delivery date announcements, and so on. 6/12/2018

Legal Reasons -3 Unfair competition. A competitor sues based on a pattern of illegal activities. Malpractice. Malpractice is negligence judged against accepted professional standards of workmanship (e.g., software developer certification standards). Breach of contract. For custom development and service contracts, a general set of contract laws applies, mostly depending on the type and specific terms of the contract. 6/12/2018

Legal Reasons -4 Grossly negligent provision of services. A provider of contracted software related services may be found grossly negligent, based on whether or not the provider made reasonable efforts to provide the service. Violation of government regulatory agency requirements. An organization may be found to violate requirements in situations where a government regulatory body has established strict criteria in the application area in which the organization is developing systems and products. 6/12/2018

Evidence Needed To build a credible case: Metrics Defined process Technical size/scope, Development effort, Schedule progress Quality Levels of project uncertainty and risk Defined process CMM Level 4 process and related process quality metrics would be very convincing in fighting off a negligence lawsuit. Organizations operating without any kind of defined process are at a serious disadvantage. Documented expectations The project’s objectives and criteria for success should be defined, mutually understood, and agreed to by customer and developer. Deviations should also be documented 6/12/2018

What you should do As a software engineer As a project manager As a business manager As a QA engineer 6/12/2018

Conclusions Factual evidence that is needed to defend against a lawsuit is the same factual information that is needed to prevent such a lawsuit from happening — which is also the same factual information that dramatically increases the likelihood of a successful software project. The set of skills, capabilities, rigorous processes, practices, and metrics that are needed to defend against a lawsuit are the same as those needed to increase the likelihood of a successful project. 6/12/2018