What Is a Software Expert Witness? [Analyzing Implementation Failures and Lawsuits]

Written By: Eric Kimberling
Date: February 17, 2023

Software expert witnesses are often the key, core component of determining who's right and wrong during a software related implementation lawsuit but what exactly does a software expert witness do?

One of the things that I've been working on over the last 15 years is serving as an expert witness to some of our clients and I've been involved with close to 50 different cases involving software implementations of different sorts, ranging from ERP implementations like SAP, Oracle, Microsoft, Warehouse Management Systems, E-Commerce Point of Sales Technologies and various other technologies.

One of the common questions that I get from our clients is what exactly does a software expert witness do? So what we want to do today is talk about what exactly a software expert witness is and at the end of the article, I'll talk about what makes a good software expert witness.

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Overview of Software Expert Witness

Before I dive into what exactly a software expert witness does, it helps to just back up and generalize and talk at a high level about what a software expert witness is. Essentially what happens is oftentimes when a software implementation fails, two parties end up suing each other. Oftentimes, it's because a company hired a software vendor or a technical implementer to implement new technology for them, something went wrong along the way and usually what happens when a project fails is that implementing organization will then sue the software vendor and or the consultants that were involved with implementing.

Now, when that lawsuit happens, what ends up happening is obviously attorneys argue with one another, they position their case, they write their briefs, they argue in court and do all the things that attorneys do. To add credibility and to add additional outside perspective, they'll often hire expert witnesses who will come in and testify on what they think happened and what they think the root cause of the failure is or was.

Attorneys are typically focused more on the legal aspects of a lawsuit, where an expert witness is more focused on the subject matter or knowledge and expertise that's required to make sense of what went right or wrong in the implementation. Each attorney from each side of the case will hire their own expert witness and these expert witnesses are independent third parties that then come in and do a bunch of work, that I'll talk about here in a moment. So expert witnesses are really an important component of lawsuits because they provide documentations and inputs into the whole argument in the legal battle and they also testify in court along the way and that's what I'll get to next.

Analyzing Software Failure

The first thing that an expert witness often does is they will get tons of documentation from the case attorneys, they will share those documents with the expert witness, all the emails that transpired throughout the project, all the status reports, the sales collateral, the contracts with the software vendors, presentations and essentially any documented fact that can be used by the expert witness to analyze and reconstruct what went wrong. It's a lot like a forensic analysis of a train wreck, you're trying to go back and replay what happened, how the failure happened and ultimately the attorneys will argue over whose fault it was.

In addition to documents, expert witnesses will often also rely on deposition transcripts, so they'll look at depositions which are basically testimony that are documented by people that were involved in the project. For example, the project manager that was hired by the implementing organization will oftentimes get deposed, which means attorneys are going to ask that person a bunch of questions about what happened, what decisions they made and then ultimately that interview becomes part of a transcript that expert witnesses then rely on partially to develop an opinion.

The reason we're analyzing all these pieces of evidence as expert witnesses is we're trying to understand what happened, we're trying to reconstruct how the failure happened. Typically there's not just one triggering event that caused the failure, typically it's death by a thousand paper cuts and there's a lot of things that materialized to lead up to the failure, so that first step of analyzing existing documentation and analyzing the overall implementation is one of the most important things that an expert witness does.

Writing The Expert Report

Once expert witnesses have analyzed what happened in the project that lead to the failure, then they'll write a report that basically gives an opinion of why the project failed, what each of the parties should have done versus what they did do and ultimately provide an opinion of why they think the project was a disaster. These reports can be quite extensive, I've been involved in some cases where there are over 200 pages of written reports that come out of the work that my team and I have done and the reason for that is because you are reconstructing so much detail and so many different facts and so many different deliverables and outputs from the project that you have to refer to and cite as evidence in your opinion, in your analysis, it's a lot like writing a thesis for graduate school. You have to not only provide an opinion but you have to cite what you're relying on to come up with that opinion.

That expert report becomes a key artifact in the overall argument that ultimately gets seen by all the attorneys in the case, as well as the judge, the jury and anyone else that might be in the case. So, the expert witness report is a critical deliverable, it's very important for an expert witness to do well as part of their work.

Deposition and Trial

Once an expert has written their report, the next step typically is that the attorneys will depose the expert. A deposition is essentially an on-record interview, it's usually filmed on camera, there's usually a court recorder that's documented every word that said in exchange throughout the entire interview and that becomes discovery or an artifact for the court to use during the overall deliberations.

Typically what happens is the attorney that hires you as an expert witness is going to ask questions that will presumably lead you or lead them to the conclusion that their case is right and then the other attorneys who didn't hire you are going to try and ask you questions that either discredit you as a expert and/or lead you to say something that supports their side of the case. Expert witness work is very tricky because you often get caught in the middle, you're getting two sides of two competing conflicting parties that are trying to get you to say things that support their case and discredit the other side's case. 

That's why depositions are important and in addition to depositions you also have the actual trial testimony. This is the more formalized testimony, when you go to trial, you're in front of a judge or a jury or an arbitrator and you'll get asked a bunch of questions by attorneys and the judge will often ask questions as well. Typically, the trial is a lot more compressed, it's usually less time for each expert to testify, whereas a deposition can take up to seven hours in many cases. These are two important roles of software expert witnesses, it's not only being able to convey clearly in writing via the expert report, what has transpired in the implementation but also being able to clearly explain it to a judge and a jury and tell their attorneys in trial testimony as well.

What Makes A Good Expert Witness

We have talked a bit about what an expert witness does but now let's talk about what makes a good expert witness. Why does a software expert witness get chosen over others and one of the first and most important things is just the overall credibility of that expert. How much experience do they have, do they have credibility, have they been published, have they testified in other cases before and so the more experience you have and the more credible you are, the more likely you are to get chosen as an expert.

In addition to that expertise and knowledge, there's also the more soft skills that attorneys often look for. People that can hold up well under pressure, that are used to being criticized or at least can accept being criticized by the competing parties that want to discredit you, people that can answer tough questions when they get cross-examined or ask tough questions by attorneys. That sort of skill set is very important as well and there's also education, attorneys typically want to see experts that are well educated, have degrees, certifications and things that add to their credibility and then the last thing that attorneys often look for in expert witnesses are experts that haven't said anything that might undermine their testimony in court. It's a little bit different than general credibility, it's more making sure that you haven't shared strong opinions or published strong opinions that might run counter to what the attorneys are trying to prove when they hire you.

Those are just a few of the things that people look for when they're hiring expert witnesses and it's a very fascinating aspect of what we do here at Third Stage Consulting. So, I hope this has provided some good insights as to what an expert witness does, what to look for in an expert witness and the type of work they do.

If you are looking to strategize an upcoming transformation or are looking at selecting an ERP system, we would love to give you some insights. Please contact me for more information eric.kimberling@thirdstage-consulting.com

Be sure to download the newly released 2023 Digital Transformation Report to garner additional industry insight and project best practices.

Kimberling Eric Blue Backgroundv2
Eric Kimberling

Eric is known globally as a thought leader in the ERP consulting space. He has helped hundreds of high-profile enterprises worldwide with their technology initiatives, including Nucor Steel, Fisher and Paykel Healthcare, Kodak, Coors, Boeing, and Duke Energy. He has helped manage ERP implementations and reengineer global supply chains across the world.

Eric Kimberling
Eric is known globally as a thought leader in the ERP consulting space. He has helped hundreds of high-profile enterprises worldwide with their technology initiatives, including Nucor Steel, Fisher and Paykel Healthcare, Kodak, Coors, Boeing, and Duke Energy. He has helped manage ERP implementations and reengineer global supply chains across the world.
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