10 Tips for Finding an Expert Witness for a Failed Software Implementation

ERP failure can include anything from operational disruption to cost and schedule overruns to a lack of benefits realization. Organizations experiencing ERP failure often file lawsuits and hire attorneys to defend their cases. These attorneys then seek the help of an expert witness.

An ERP expert witness provides litigation support to attorneys representing software developers, system integrators or end-user clients. The expert witness works closely with attorneys to determine where the failure points lie within failed ERP implementations.

If you’re an attorney, software developer, VAR or end-user seeking a software expert witness, here are ten tips for finding a good one:

1. Look for an expert witness who is unbiased

Does the expert witness have any connections to software vendors or system integrators? If so, this should disqualify him or her from being involved in a case. This bias is not always revealed upfront.

2. Find an expert witness who has worked with both vendors and end-user clients

An expert witness who does not have experience with both, should be disqualified, as this may indicate bias toward particular clients.

3. Assess their testimony experience

Do they have the technical expertise to analyze a case accurately? Do they have experience being deposed, and have they given expert testimony before a judge or arbitrator?

4. Determine if they use an individual or team-based approach

Will one expert do all the work themselves? This comes down to a cost issue. There may be thousands of documents to review to find the root causes of failure, and you don’t want to pay the rate of the expert for work that a qualified analyst can accomplish.

5. Determine if the expert has previously been disqualified

Has your expert ever been disqualified prior to testimony? This is one of the first questions opposing council will ask, and if the answer is “yes,” then the expert will likely be disqualified again.

How many cases has your expert worked on? If the answer is one (or fewer), you should question the expert to see how he or she holds up under intense scrutiny.

Does your expert have a consistent history represented in his or her CV, resume, expert witness listings, social media and other sources? Inconsistencies will be researched by opposing council and brought to light in deposition or testimony, which may result in disqualification.

8. Look for an expert with a history of publication

Has your expert been interviewed by reputable media sources? Has he or she personally published articles or whitepapers? Some experts will take another person’s work and represent it as their own.

9. Look for schedule flexibility

Often, deposition and court dates are not fixed. Is your expert’s schedule flexible enough to adjust to movements in times and dates by opposing council or the court?

10. Find an expert who is detail-orientated

Is your expert a detailed person who will dedicate the required time and effort to provide an exhaustive examination of the facts? Or are they a person who will improvise when faced with tough questions? Your expert needs thorough knowledge of the issues impacting the case.

Following these guidelines when looking for an expert witness will save you time and money in the long-run. While it takes time to investigate expert witness qualifications, your efforts will pay off when your chosen expert delivers a testimony that wins the case.

An Expert Witness Case Study

A state government agency experienced a failed software implementation and considered suing its selection and implementation partner. The consulting firm was tasked with replacing the agency’s tax collection systems, but project deliverables were delayed, and the project suffered from a lack of staffing. The project had also run overbudget and had poor project management.

The government agency engaged an expert witness to determine the feasibility of a lawsuit. Had the consulting firm met the contract terms? Was legal action warranted or were the delays and staffing issues within reason?

The expert witness team audited several thousand case documents to develop an analysis and argument for the legal team. The expert witness team determined the project delays were unreasonable, and the consulting firm hadn’t provided promised resources. Documenting their findings in a 70-page analysis, the team gave the agency confidence in their proposed lawsuit.

The lawsuit helped the agency recover tens of millions of dollars in lost business benefits and consulting fees.

The government agency was successful because they hired an expert witness team as opposed to a single expert. The team had a breadth of experience working for both plaintiffs and defendants and had significant selection and implementation experience. This is the type of team you need when your ERP implementation fails.