Software Engineer Expert Witness – Melbourne, Sydney, Brisbane, Adelaide, Perth and Beyond.

Michael Simonetti BSc BE MTE, is a software engineer expert witness based in Melbourne, instructed by firms across Australia and internationally, including but not limited to Sydney, Brisbane, Adelaide, Perth, Auckland and Singapore. A detailed list of the cases and firms he has represented is set out on his bio and profile page. As part of his expertise, Michael assesses commercial software engineering and code in disputes preceding and up to the Federal Court of Australia and the State Supreme Courts.

Software matters turn on questions counsel cannot answer from the pleadings and statements of claim. For example; Whether two codebases share more than coincidence. Whether a platform was built or inherited. Whether a repository shows what a lay witness statement says it shows, and how any of that relates to licensing, copyright, and the wider commercial, industry and market position.

The Role of a Software Engineer Expert Witness?

A Software Engineering Expert Witnesses for the courts’ role includes:

1. Forms part of pre-briefing sessions with a legal firm or firms representing applicants, respondents, plaintiffs or defendants in cases before the courts
2. Is briefed by one of the legal firms representing the party(s) to produce an expert report for the court. 
3. Produces an independent expert report, in this field it would cover aspects of Software Engineering and may cover a wider commercial scope if briefed.
4. Produce a joint expert report if instructed by the court. 
5. Potentially be part of a mediation, and / or court appearance to be cross examined by the opposing barrister(s) either individually or together with the opposing expert (“Hot Tub” format).  

Michael’s expert witness work has covered over 100 reports covering these tasks extensively. Michael opines in reports and provides testimony which are “judge ready”, which allows someone with no software engineering background to follow, without losing the technical precision that makes the answer both objective and proveable.

That is where the volume of work produced in the past and courtroom experience matters. Michael has been in court and worked through joint reports dozens of times, including conferences of experts, mediation, concurrent evidence sessions and cross examination. Over 2 decades of expert witness practice, he has built the legal acumen to hold a defensible technical position under pressure, which over and above writing the analysis in the first place.

What are typical Case Considerations of Software Engineer Expert Witnesses?

An example challenge in a software IP theft expert witness matter is treating a similarity percentage as though it were evidence of copying. Two commercial codebases built on the same framework, in the same language, against the same third party API, will share a great deal of text before anyone has copied anything. Similarity only becomes probative after the unremarkable material has been removed.

Material that has to come out before a comparison means anything:

• Open source libraries and package dependencies, which are identical by design

• Framework scaffolding and generated code, which the tooling wrote, not the developer

• Standard idioms and boilerplate that any competent developer in that language would write the same way

• Code dictated by an external constraint, such as interoperating with a payment gateway or a documented API, where there is only one correct way to write it

• Configuration, formatting and auto-applied linting, which shows similarity without showing authorship

What survives that filtering is the comparison worth putting in front of a court. It is usually a small fraction of what an unfiltered tool reports, and it is far more difficult to explain away.

What Does a Software Expert Witness Assess?

Independent developers solving the same problem produce similar logic. They do not produce the same mistakes. In code assessment expert witness work, the strongest indicators are the ones with no functional reason to exist at all.

• A defect reproduced in both codebases, including the off by one error, the unhandled edge case, or the incorrect boundary condition

• Comments, including misspellings, informal notes and references to a developer or project that has nothing to do with the receiving party

• Dead code and unreachable branches, which serve no purpose and would not be written twice independently

• Hardcoded values, debug strings, internal identifiers and test data carried across unchanged

• Idiosyncratic naming and structural choices that are not the obvious way to do it

A single one of these proves little. A cluster of them, in code that has already survived filtering, is a finding that stands up under cross examination.

What Material Does an Expert Need Access To?

The categories below indicate the material typically sought in a software matter. The specific list is always shaped by the technology in question and the issues pleaded.

• Architecture documentation. System, module and deployment diagrams, the software roadmap, and how the architecture has evolved.

• Source code. Read only access to the relevant code, modules and associated repositories.

• Technical documentation. Design documents, technical specifications and other internal technical material.

• Module inventory. Identifying which modules were developed in which technology or development platform.

• Release history. Major releases, migration history and significant technology changes.

• Interface documentation. How each technology in the stack interacts with the others.

• Deployment and runtime documentation. The runtime environment and key software dependencies.

• Product documentation. User guides, product brochures and feature documentation identifying what each module actually does.

For Example: Access and Similarity Are Two Separate Findings

Similarity between two codebases says nothing about how one party came to have the other’s work. These are distinct technical questions, answered from entirely different material, and a source code expert witness should keep them apart in the report rather than letting one imply the other.

The similarity question asks whether the codebases are objectively alike, and whether any innocent technical explanation accounts for it. That is answered by filtered code comparison, structural analysis and artefact review.

The access question asks whether the party had the opportunity to obtain the work at all. That is answered somewhere else entirely: repository access logs and permissions, employment devices, cloud sync and download records, and email and file transfer records.

Keeping the two separate protects the evidence. A report that runs them together invites the obvious question in cross examination about which finding is actually doing the work.

For Example: What Code Analysis Cannot Establish

Stating the limits is part of the job, and a report that overstates its reach damages the case it was written to support.

• Code comparison alone does not identify who wrote code. Authorship comes from repository history, device artefacts and account records, not from the code text.

• Where a codebase is heavily framework generated, there may be too little original expression left to support a meaningful comparison in either direction.

• An absence of code similarity does not dispose of a confidential information or trade secret claim. Architecture, data models and business logic can be taken without a line of code moving.

• Timestamps in file systems and archives are trivially alterable and carry weight only when corroborated by an independent record.

Courts and Typical Matters

Michael Simonetti has appeared in, or prepared expert reports and expert witness reports for, the courts below. These courts sit in multiple cities and regions across the country.

• Federal Court of Australia. Defamation, misleading and deceptive conduct, corporations, intellectual property, competition, insolvency and significant commercial disputes involving federal law.

• Supreme Court of Victoria. Major commercial litigation, large contractual disputes, shareholder and director disputes, injunctions and defamation.

• County Court of Victoria. Commercial disputes, contractual claims, damages claims and some defamation matters.

• Magistrates’ Court of Victoria. Lower value civil and commercial disputes.

Software matters carrying an intellectual property or competition element generally proceed in the Federal Court of Australia. Where the dispute is contractual, over delivery, specification or performance, it more often sits in the Supreme Court or County Court of Victoria.

Reports, Conferences and Concurrent Evidence

Over the past two decades Michael has applied both software engineering and commercial business skillsets to this work. Understanding a matter beyond the statements of claim has proven valuable for firms responding to briefs, preparing cases, and defending a position through joint reports, concurrent evidence sessions and cross examination.

Michael Simonetti holds degrees from Melbourne University in Computer Science and Engineering, together with a Masters in Telecommunications Engineering. He has 30 years of experience in software engineering, internet marketing and digital, including 30 years working commercially as the head of his own digital agencies. Over the past 15 years he has built a client portfolio comprising hundreds of legal professionals.

Firms who have instructed him include King & Wood Mallesons, Gadens, Allens, Herbert Smith Freehills, Thomson Geer, Gilbert + Tobin, Cooper Mills, Buchanan, Sterling and Gilchrist Connell, among others. Applicants and respondents range from small businesses and SMEs through to multinational corporations, across real estate, legal, hospitality, professional services, medical, travel, B2B and B2C sectors.

Services range from initial advice through to reports, affidavits and court appearances.

Interstate and International Instructions

Michael Simonetti has worked with clients and courts in New Zealand, Asia, Europe and the United States. Software disputes frequently involve a codebase, a vendor or a development team in a different jurisdiction to the party bringing the claim.

He travels frequently for this work, although most briefings and meetings are held online, which keeps a software engineer expert witness instruction practical for firms in Sydney, Brisbane, Adelaide, Perth or overseas.

Instructing Michael Simonetti

An initial call establishes the technical questions genuinely in dispute and clears any conflict. Where the matter is at an early stage, that call is also the point at which discovery categories and materials can be scoped so the evidence that matters is actually captured. AndMine coordinates the engagement, and can arrange contact with an expert witness reference on request. For more information, please contact Michael Simonetti at AndMine.