New Developments in an Agile World - Drafting Software Development Agreements - By Paul H. Arne

Sep 12, 2026

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Agile software development is presented as a practical shift for attorneys drafting, negotiating, or reviewing software development agreements. The discussion contrasts traditional waterfall development—its sequential phases and discouragement of change—with Agile’s rationale driven by real-world uncertainty and evolving needs. The article also highlights the business importance of adoption by referencing software delivery success rates from the Standish Group’s Chaos Report, emphasizing legal disputes that commonly arise in technology development relationships.

LanguageEnglish

CategoryLetters

FormatPDF

Pages10

Reading Time4 min

AccessFree to download

New Developments in an Agile World

Drafting Software Development Agreements

Software Development Generally

Waterfall Approach

Why this is important: Success Rates

New Developments in an Agile World: Drafting Software Development Agreements By: Paul H. Arne 1,2 A few months before this article was prepared, a group of senior IT professionals from some of the largest companies in Atlanta3 gathered together over dinner to discuss issues that are common to large IT organizations. This was the first such meeting, with about 20-25 companies represented. The CIOs who organized the meeting hoped that this would be the first of many such events. The first ever discussion topic? Agile software development. This group has now gathered a second time to discuss a different topic. At the end of that discussion, the audience was asked about topics for the third meeting. The overwhelming response was Agile software development, once again. There’s a lot of interest in Agile development. If you are an attorney who drafts, negotiates or reviews software development agreements, you need to know about Agile. If you haven’t already been brought into a development transaction involving Agile software development, you will. The use of Agile software development principles may change the way your software development agreements should be drafted. Software Development Generally Waterfall Approach Generally Traditional software development is often described as “waterfall” development. The basic components of waterfall development reflect a sequential approach to development. Generally speaking, they include the following processes, to be completed in order: conception, analysis (including requirements gathering), design, construction, testing, implementation, production use, and maintenance.4 Each process flows to the next one, hence the term“waterfall.” This process was derived from more traditional disciplines for making things, such as manufacturing or construction. Inherent in this approach is a substantial attempt to determine as fully as possible what will be built before construction commences. One can see how important this principle would be when constructing a building. Under waterfall development, changes of plans are generally discouraged and should be given special and serious review and scoping before the change is actually implemented. This places a huge emphasis on getting the design process right. 1 Paul is the chair of the Technology Transactions Group of Morris, Manning & Martin, L.L.P. This article does not create an attorney/client relationship with you and does not provide specific legal advice to you or your company. Certain legal concepts have not been fully developed and certain legal issues have been stated as fact for which arguments can be made to the contrary, due to space constraints. It is provided for educational purposes only. 2 Copyright © Paul H. Arne, 2013. All rights reserved. The author wishes to thank Mike Cottmeyer for his insights into Agile development, especially for large organizations. Mr. Cottmeyer is the CEO of LeadingAgile, LLC, a company devoted to assisting large organizations transition to Agile development methodologies, including training, coaching and strategic consulting in portfolio management, project management, and transformation. Also, special thanks to Austin B. Mills for his assistance in preparing this article. 3 Most of these companies have annual revenues in excess of $100 million per year. 4 See Wikipedia, Waterfall model, [http://en.wikipedia.org/wiki/Waterfall_model](http://en.wikipedia.org/wiki/Waterfall_model) (as of October 12, 2013, 16:45 EST) . Very thoughtful and useful techniques have been developed to help organizations figure out what software features and functionality should be built, including stakeholder identification, stakeholder interviews, visioning, brainstorming, naturalistic observation, prototyping, focus groups, and storyboarding. However, requirements gathering and waterfall software development have at least two inherent problems. • It is hard for human beings to describe what they need when

FAQs

Why is Agile software development important for software development agreements?

Agile principles can change how agreements should be drafted because they affect how development work responds to evolving requirements and priorities.

What is the core idea of the waterfall approach described in the article?

Waterfall development follows a sequential set of processes that are completed in order and aims to determine what will be built before construction begins.

How does the article support the importance of the discussion using success-rate statistics?

It references The Standish Group’s Chaos Report and summarizes project resolution outcomes, showing that many projects are challenged or cancelled rather than purely successful.

Sep 12, 2026

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