In his book, Out of the Crisis, W.E. Deming listed
Excessive costs of liability, swelled by lawyers that work on
contingency fees as one of the seven Deadly Diseases. I'm
a CQE who recently became a lawyer. My objective is to use the
legal system as a vehicle to improve software quality, either
as a corporate counsel who works with Engineering in a proactive
manner, or as a plaintiff's attorney who files expensive bug reports
on a contingent fee basis. In my view, litigation over defective
products puts pressure on companies who don't care about their
customers. It empowers quality engineers. It is part of the cure,
not one of the diseases.
Software quality is often abysmally low. It is impossible to
fully test a software product, so all software is necessarily
shipped with defects. (For a discussion of the problems of testing,
and of the types of defects in software, see my book, Testing
Computer Software, 2nd Ed., with Jack Falk & Hung Quoc
Nguyen, Van Nostrand Reinhold, 1993.) Many companies ship software
with significant, known defects. Others don't test the products
well enough to discover the most serious problems.
As Quality Engineers, we study quality-related decision making from a financial viewpoint. Our objective is to minimize the cost of quality associated with each product. (See Principles of Quality Costs, 2nd Ed., Edited by Jack Campanella, ASQC Quality Press, 1990). Figure 1 provides some representative quality costs associated with the development of software products that will be sold to the public.
Unfortunately, the ASQC's Quality Costs Committee omitted an
important class of quality-related costs when they published Principles
of Quality Costs. Look at Appendix B, the Detailed Description
of Quality Cost Elements, and you'll see that all of the costs
listed are costs borne by the manufacturer / seller of the product.
The manufacturer and seller are definitely not the only people
who suffer quality-related costs. The customer suffers quality-related
costs too. If a manufacturer sells a bad product, the customer
faces significant expenses in dealing with that bad product.
Figure 2 lists some of the external failure costs that are borne by customers, rather than by the company.
These are the types of costs absorbed by the seller that releases a defective product.
These are the types of costs absorbed by the customer who buys a defective product.
Many of the external failure costs, such as goodwill, are difficult
to quantify, and many companies therefore ignore them when calculating
their cost-benefit tradeoffs. Other external failure costs can
be reduced (e.g. by providing cheaper, lower-quality, post-sale
support, or by charging customers for support) without increasing
customer satisfaction. By ignoring the costs to our customers
of bad products, quality engineers encourage quality-related decision-making
that victimizes our customers, rather than delighting them.
The point of quality-related litigation is to transfer some
of the costs borne by a cheated or injured customer back to the
maker or seller of the defective product. The effect of this is
to put pressure on the manufacturer to develop higher quality,
It is fashionable for companies to whine about their customers'
ability to sue over defective products. It's not surprising to
hear this -- we've all known executives who care more about this
quarter's profits than about their longer term relationships with
customers. And we've all heard them whine about those dratted
nitpickers in QA. But it amazes me when I hear anger toward plaintiffs'
lawyers at ASQC meetings -- fundamentally, we are on the same
|Cem Kaner consults on technical and management issues, practices law, and teaches within the software development community. His book, Testing Computer Software, received the Award of Excellence in the Society for Technical Communication's 1993 Northern California Technical Publications Competition. He has managed every aspect of software development, including software development projects, software testing groups and user documentation groups. He has also worked as a programmer, a human factors analyst / UI designer, a salesperson, a technical writer, an associate in an organization development consulting firm, and as an attorney (typically representing customers and software development service providers). He has also served pro bono as a Deputy District Attorney, as an investigator/mediator for Santa Clara County's Consumer Affairs Department, as an Examiner for the California Quality Awards. He holds a B.A. (Math, Philosophy, 1974), a J.D. (1993), and a Ph.D. (Experimental Psychology, 1984) and is Certified in Quality Engineering by the American Society for Quality Control. He teaches at UC Berkeley Extension, and by private arrangement, on software testing and on the law of software quality.|