Disputes over failed software implementation projects raise interlinked technical and legal issues which are complex, costly, and time-consuming to unravel - whatever the financial size of the claims and counterclaims, the facts and circumstances of the contract between the parties, or the conduct of the project and the management and software development methodologies which may have been used. Such projects are often terminated, with the software rejected, amidst a considerable range and variety of allegations expressed by both supplier and customer. These include allegations of incomplete or inadequate delivery, software defects, database errors, faulty design, operational deficiencies, performance shortfalls, systems instability or unreliability, shifting user or business requirement specifications, poor project management, inadequate systems or acceptance testing, lack of co-operation, delays and cost over-runs. Increasingly, such disputes are ending up in the Courts (or being dealt with by other forms of dispute resolution, such as Mediation or Arbitration), with an IT Expert Witness retained by each party to give an independent opinion on what went wrong technically/managerially, what and how bad are the consequences, what is the final state of the software, and who is to blame.
I have been involved as an independent Expert Witness, in over 100 cases over the past 15 years, for Claimants and Defendants; systems/software customers and suppliers; in the High Court, or in Arbitration and Mediation, and in other forms of Alternative Dispute Resolution. I am also experienced as a (CEDR-trained) Mediator and as an ICC Arbitrator. These have included the software development cases in the English High Court which hold the record for the longest trial (GEC Marconi v LFCDA, 1991-92), where a CASTELL Consultant spent some 40 court days being examined in the witness box in a trial which went on for well over a year; and for the largest claim (£200m+, with £50m counter-claimed, heard briefly in the Technology and Construction Court of the High Court in October 2001 prior to settlement), over the failure of a high-profile Outsourcing Agreement.
The expertise and experience generally required for this software development/implementation contract expert witness work is that of an IT professional skilled in software engineering, implementation and development practice; project management; and information systems strategy and procurement. The work has inter alia these important features:
What investigations should be done? At the start of looking at a case, it can be confusing to the inexperienced to know just where to start applying your (costly) expertise...
What evidence should be considered? Usually (but by no means always!) there is already assembled a (large) portfolio of project and technical documents by the time the Expert Witness is hired. So the first task is - read all the documents. Equally, the first task is - identify and request all the documents you don't yet have but you think should be in existence for a software project of this nature. And another first task is - interview as many of the key people, singly, as you can in the shortest time.
The software itself: 'best evidence'? 'Let the software speak for itself'. Much of the work of an expert, when the disputed software/system is still available to be tested (not always the case), consists of identifying, planning, preparing and running appropriate expert testing (usually jointly with the expert for the other side) to demonstrate the presence (or absence) of the alleged faults in (or enhancements to) the system which are often at the heart of the dispute. The results of such testing can have a dramatic effect on the continuation of the action - and, in my experience, it is not unknown for even the suggestion of rigorous independent expert testing of the software itself (perhaps proposed as to be carried out 'before the Judge') to hasten a satisfactory settlement of the dispute...
What is your opinion? Ultimately, to repeat, this is why you have been hired! If you are not the sort of person who can reach a firm opinion, with objectively good, rational, defensible analysis to back it up, and expressed in compelling, clear English - and be prepared to defend your position, convincingly and unshakeably, when cross-examined on it in court, then...
Settlement! or 'Good experts don't go to court'. Just as the Observer Corps' motto is 'Time spent in reconnaissance is never wasted', in my experience, that for IT software contract disputes runs: 'Money spent on a good expert is never wasted'. In the vast majority of all the cases in which I have been involved as an Expert Witness, it is certainly true to say that a satisfactory settlement of the dispute was achieved between the parties shortly after serving of my Expert's Report, so that there was no further need to proceed to trial - in itself resulting in a huge saving in costs to both sides.
One of the most important issues on which you are almost always asked to give an expert opinion in these cases is: what was the quality of the delivered software and was it fit for purpose ? To answer this, CASTELL Consulting has over the years developed a range of rigorous analytical techniques, Forensic Systems Analysis, for assessing failed, stalled, delayed or generally troublesome software development and implementation projects. These techniques, founded on sound software engineering principles, are objective and impartial, favouring neither customer nor supplier, software user nor software developer. This objective and unbiased approach is precisely that demanded of the Expert Witness, whose primary duty, as I have noted, is to the Court in finding the 'technical truth'. It is particularly important technically where software projects involve a mixture of 'customised' software packages and 'bespoke' software construction. These techniques are becoming internationally accepted and an account of the Forensic Systems Analysis methodology was published in the October 2000 issue of Charter, the Journal of the Institute of Chartered Accountants in Australia; and in the October 2001 issue of the UK Barrister magazine. It is my intention that they will be further developed and promulgated, as a contribution to good IT professional practice, on my future website www.ForensicSystemsAnalysis.com.
Members of the AICS could well consider developing their careers in the Expert Witness direction - if they have wide experience, can be technically rigorous and independent in thought, critically objective and, above all, write clear, good English. One of the best ways to get started in this field is to work with an established consultant who frequently does expert work. I myself am always interested in hearing from independent software practitioners with particular expertise and interests who could for example assist on some of the larger projects where an expert team is necessary. Bodies like the Expert Witness Institute, and the Law Society (which publishes an annual Directory of 'checked' Expert Witnesses), welcome IT consultants and contractors who have had some practical experience of expert witness work.
Dr. Stephen Castell, Chartered Information Systems Practitioner and Member of the Expert Witness Institute, is Chairman of CASTELL Consulting. He is an internationally acknowledged independent computer expert who has been involved in a wide range of computer litigation over many years. He is a member of the Legal Affairs Committee of the British Computer Society, and a Committee Member, British Computer Society Law Specialist Group.
See Dr. Stephen Castell's Listing on Experts.com.
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