We have all read about the failed ERP implementation at Lidl, which resulted in a 400M write off in Q3 this year. In most cases Enterprises will blame the software vendor, while the software vendor is blaming the Enterprise. This results in lawsuits and high cost from attorneys. These attorneys are not experienced in ERP implementations and they will seek the assistance from so called expert witnesses. What do these experts do and how can we prevent these situations?
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 expert witnesses which doubles the cost, but does not resolve the problem nor puts the finger on the shortcomings.
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 or end-user seeking a software expert witness, here are ten tips for finding a good one, but the article also includes some tips to prevent such a situation:
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 and is quite often kept hidden.
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.
6. Consider the amount of expert witness experience. 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.
7. Find an expert who has consistent historical documentation. 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 as an expert.
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? What does it say about the experts communication skills.
9. Look for schedule flexibility. 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
An enterprise experienced a failed implementation and considered suing its selection and implementation partner. The consulting firm was tasked with integrating and aligning some of the processes, 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 enterprise 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 thousands of documents to develop an analysis and argument for the legal team.