As a developer, do you understand the legal meaning behind
this concept? If you don't, it simply means you haven't
been sued yet.
Y2K: Setting the Standard for Care
As a developer, do you understand the legal meaning behind
this concept? If you don't, it simply means you haven't
been sued yet.
- By John Ellsworth
- March 01, 1999
Do you have what it takes to be successfully sued for
your Y2K efforts?
I’m a programmer and a lawyer. In the past I’ve
sued people and companies for negligence of all kinds.
Today, however, my life is much more peaceful; I work
full-time as a software programmer.
My present consulting efforts are directed toward Y2K
remediation on a commercial program written in Visual
Basic 3. The program is far from object-oriented, is nebulous,
and was written by a group who seemed bent on writing
largely uncommented code. In short, it’s the kind
of code most everyone involved in these efforts must deal
with on a daily basis. It’s not fun, but it can be
challenging—and it taxes our skills.
In the February issue of MCP Magazine, Harry Brelsford
wrote a column titled, "Y2K
and the Law." This excellent article addressed
the protection of Y2K remediators. Harry stressed the
importance of the legal language contained in remediation
contracts, and of obtaining adequate malpractice insurance.
My effort introduces you to the bottom line legal issue
of the "Standard of Care." If not understood
and addressed by developers involved in Y2K efforts, Standard
of Care is the legal phaser that could blast them out
of business.
| Disclaimer: |
| This article is not intended
as legal advice, but is for the informational
purposes of our readers only. You should
always seek legal counsel before taking
any action on your own. |
|
|
What’s Standard of Care?
If you aren’t aware of Standard of Care already,
it’s likely you’re one of the blessed who’s
never been sued for professional negligence. If you had
been sued, you would know how these cases revolve around
Standard of Care like your software projects revolve (at
least to some extent) around use-cases.
Let’s look at the legal lingo here. Like programming
languages, law has a vocabulary and syntax all its own.
It’s not difficult, but, like any good programming
language, there’s a time to insert a brace ({) and
a time to leave it out.
Lesson 1. What Courts Mean by Standard of
Care
Broadly speaking, Standard of Care is what other professionals
in the same profession do to obtain a satisfactory result
for their client or patient. For the doctor delivering
a baby, this could mean a clean operating room, a complete
and sufficiently-trained staff, emergency procedures and
equipment on the standby, and so on. For the architect
of a 50-story building, it might mean a complete understanding
of materials, wind dynamics, and engineering processes.
For the software developer remediating a program’s
Y2K problems, it means a scan for questionable variables,
functions, settings, controls, and more.
Some of the items Y2K remediators must address lest their
work be found to be negligent, and, therefore, subject
to an award of money damages, include:
- Functions
- Function Arguments
- String variables.
Technical writings galore address these items in much
more detail and also offer insight into Y2K problems inherent
in particular programming languages. Read in your area
of work for a greater understanding of these technical
issues.
Lesson 2. The Battle of the Experts
How does Standard of Care arise in a lawsuit? It arises
when the expert witnesses testify. Who can be an expert
witness? Each state has its own rules of evidence about
this, and they often track the Federal Rule. A portion
of the Federal Rule is quoted here:
Rule 702. Testimony
by Experts
If scientific,
technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
Basically, just understand that an expert can be anyone
who can convince the judge that he or she holds some expertise
in the area of software Y2K remediation and that his or
her knowledge will help the jury decide the case.
Let’s look at how experts testify. It goes something
like this:
Q: Have you, Mr. Software Expert,
had a chance to examine what Defendant Company did in
this case during its attempts to fix the Y2K problem at
American Electric Company?
A: I have.
Q: What have you looked at:
A: I have reviewed the contract
between Defendant Company and American Electric Company,
the programmers’ time records, the code changes made
to the source code, the string variables scanned, the
functions scanned, and much more.
Q: And as a result of your
study, do you have an opinion as to whether the Y2K efforts
of Defendant Company met the Standard of Care for companies
involved in Y2K remediation efforts?
A: I do have such an opinion.
Q: Would you please state that
opinion for the jury.
A: My opinion is that Defendant
Company’s Y2K remediation efforts fell below the
applicable Standard of Care.
Q: What do you base that opinion
on.
A: I base that opinion on many
things. For example…
Following the "For example," the expert takes
your head off, reciting all of the ways your efforts were
misdirected. This laundry list of what you did wrong will
be limited only by the expert’s own creative genius.
How do experts decide what meets the Standard of Care
and what doesn’t? This is the core issue facing developers.
In other areas of professional practice–such as medicine–there’s
an entire college of experts doing the same surgical procedures
day after day. Likewise a long history exists of development
of the techniques for the surgeries, tools used, and best
practices. The same could be said for the legal profession,
which also has been around for hundreds of years.
But what about software engineering? Here’s an infant
profession with an evolving college of best methods and
practices. In our industry, best practices established
one day are tossed away the next. This happens because
software changes relatively frequently. What’s true
today is foolish tomorrow. How different from medicine,
law, architecture, and accounting! And how vulnerable
this makes us to the Y2K lawsuit threat, just because
we don’t yet have a history of methodologies and
best practices tested and true.
In a historical sense, you could say that we who are
doing Y2K remediation–despite our articles and statements
and press interviews–are largely working in a vacuum.
And in a legal sense we’re working in a vacuum too;
what we are doing hasn’t been tested in very many
law courts. Whether our efforts turn out to rise above
the bar or fall below remains to be seen.
Lesson 3. Lessons To Learn
First, when the lawsuit storm begins
to swirl around us, we’ll need expert witnesses willing
to tell the truth about the infancy of our profession.
We need to demonstrate to juries how we were working with
largely untested methodologies, and that we were working
with issues never before faced in the history of software.
And we’ll have to say about our efforts, "There
was no one else to do what we did. We did our best."
We won’t apologize for what we did; we’ll simply
state the truth. How refreshing this could be.
Second, we need to work together to
develop a Standard of Care for ourselves, rather than
have it thrust on us from the outside. There are
wolves out there, experts willing to say anything for
the right price. As a profession we must develop a network
among ourselves of experts who will tell the truth no
matter how much money is involved, whether it hurts or
helps. Truth must be our bottom line.
We owe it to ourselves, to our profession, and to those
who will inherit our work to set a Standard of Care that
begins with rigorous honesty. Only the professions that
have done this have survived. The rest have dried up and
blown away largely due to public efforts (read "Administrative
Agencies") to police them. In our society if a group
invested with a public duty fails to police itself for
the public good, you can bet the government will step
in. I believe government regulation of software development
could be the worst thing possible for our infant profession,
worse than any threat we face in dealing with Y2K issues.
Third, we must understand our position
in society. As software professionals we have been
vested with a public interest that is peculiarly unattainable
by the citizenry, because source code isn’t something
anybody could pick up, read through, and determine whether
it meets Y2K compliance. We bear the same responsibilities
to our clients as the physician, the attorney, the CPA.
Clients rely on us to know the unknowable.
We must rise to a level of competence and thoughtfulness
that not only tests our personal mettle but that brings
out the best of our profession. We must establish once
and for all that we’re more than geeks and propeller
heads, that we’re facing and doing our best to remediate
problems left in many cases to us by a generation of coders
no longer around.
Once we do these things, we’ll have established
our own Standard of Care.