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Information Technology Expert Witness

Vident Partners provides vetted information technology expert witnesses for cases involving failed software and system implementations, IT outsourcing, service level disputes, project schedule and cost overruns, and technology contract breach. Request a referral today.

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About Information Technology Expert Witnesses

An information technology expert decides why a system project failed, or why an outsourced service fell short, and who was responsible: the vendor, the customer, or the way the two worked together. These cases rarely turn on one bad line of code. They turn on scope, schedule, testing and change control across years of records. This page covers IT projects, implementations and outsourcing. Source code quality alone belongs to a software engineer, a breach to a cybersecurity expert, and lost profits to a damages expert.

Why Projects Fail, and How to Show It

Large IT projects fail often enough that the federal government tracks the risk. GAO keeps Improving IT Acquisitions and Management on its High Risk List, and its current list records that area as having regressed 1. A useful expert explains the failure as a sequence, tied to dated documents, and not as a general impression.

Three published GAO guides give a neutral vocabulary and a useful checklist, even for private projects, since they state practice and not private contract duties.

  • Schedule. GAO's Schedule Assessment Guide says a schedule should be detailed enough to identify the longest path of activities through the entire program, and should reflect all effort needed to complete it, regardless of who performs it 2. A plan that left out the customer's work is a common finding
  • Cost. GAO's Cost Estimating and Assessment Guide warns that a baseline not built on a reliable estimate puts a program at risk for cost overruns, missed deadlines and shortfalls in performance 3
  • Code quality. GAO's Agile Assessment Guide calls the accumulated deficiencies from time pressure and undisciplined work "technical debt," and says it can grow until the code base no longer functions properly and a complete refresh becomes necessary 4

The record is usually large: statements of work, requirements, change orders, status reports, risk logs, defect trackers, test results, steering committee minutes and version history. The expert compares what the plan said, what the reports said, and what the defect data showed. A red defect count under a green status report tells its own story.

The Contract Questions

Most disputes start with what was promised. If Article 2 of the Uniform Commercial Code applies, an affirmation of fact or promise that relates to the goods and becomes part of the basis of the bargain creates an express warranty 5. Goods are things movable at the time of identification to the contract 6, so whether licensed software, a hosted service or a mixed project falls under Article 2 varies by forum and by the facts. The expert supplies those facts: what was delivered, how, and how much was service.

Where Article 2 does apply, a buyer may revoke acceptance when non-conformity substantially impairs the value of the goods, including where it accepted on the reasonable assumption that the problem would be cured 7. Limits on remedy are the usual battleground. A contract may limit remedies, but where an exclusive or limited remedy fails of its essential purpose, other remedies open up, and consequential damages may be excluded unless the exclusion is unconscionable 8. That makes the repair history technical evidence. How many fixes were tried, over how long, and did the system ever meet its acceptance criteria?

Agile projects raise a particular fight. Requirements change on purpose, so the baseline is often a backlog and not a specification. GAO's guide treats an agreed definition of done as part of managing delivery 4. The expert asks what done meant to these parties, and whether acceptance was ever a real test.

Outsourcing

Outsourcing disputes rest on measured service. The expert reads the service levels, how they were measured, who controlled the data, what credits were paid and how the transition was run. A vendor's report that it met a target proves little without the method behind it. Termination disputes often turn on whether a service failure was material and whether notice and cure steps were followed, which are contract questions the expert can inform with facts.

Who Is Qualified

No license exists for IT project leaders. Look for someone who has led implementations of the same class of system at a similar scale, on both customer and vendor sides if possible. Project management certifications show training, not outcomes. The strongest witness has personally run recovery efforts, can read a schedule and a defect database, and can explain to a jury what went wrong and when it became visible.

GAO's Schedule Assessment Guide says a schedule should identify the longest path of activities through the entire program and reflect all effort necessary to complete it, regardless of who performs it.

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Common Case Types

Failed enterprise software and ERP implementations

IT outsourcing and managed service disputes

Service level and service credit disputes

Project schedule and cost overrun claims

Fraud and misrepresentation in vendor sales

Failed government and agency IT programs

Data migration and system cutover failures

Termination and transition disputes with vendors

Qualifications to Look For

  • Hands-on leadership of implementations of the same class of system and scale
  • Experience on both customer and vendor sides of IT contracts
  • Experience rescuing or auditing troubled projects
  • Ability to read schedules, defect databases, test results and change logs
  • Outsourcing governance experience for service level disputes
  • No license exists for IT project leaders, so the project record is the credential
  • Prior deposition or trial testimony explaining project failures to a lay audience

Frequently Asked Questions

What qualifications should an information technology expert witness have?

There is no license for IT project leaders. Look for someone who has led the same class of system at a similar scale, ideally for customers and vendors, and who has rescued troubled projects. The expert should be able to read the schedule, defect data and change logs and explain them plainly.

Who is at fault when an IT project fails?

Often both sides contributed. The expert builds a dated sequence from the contract, status reports, change orders and defect data, then separates vendor performance, customer duties such as decisions and data, and shared governance. The contract allocates the responsibilities.

Does the UCC apply to software contracts?

It varies. Article 2 covers goods, meaning things movable at the time of identification to the contract. How that applies to licensed software, hosted services and mixed projects depends on the forum and facts, and the expert supplies the facts about what was delivered.

Can a limited remedy clause be set aside?

Under UCC 2-719, where an exclusive or limited remedy fails of its essential purpose, other remedies may be available, where Article 2 applies. Repair history often becomes the key evidence, including how many fixes were tried and whether acceptance criteria were ever met.

What is technical debt?

GAO's Agile Assessment Guide uses the term for deficiencies that accumulate in code from time pressure, an unsustainable pace or undisciplined work. If unmanaged, it can reach the point where the code base no longer functions properly and a complete refresh becomes necessary.

How much does a information technology expert witness cost?

In general, technology expert fees are determined by the expert themselves, based on a variety of criteria. Among those criteria are professional experience, forensic experience, project experience, academic qualifications, and publications. Vident does have some influence over expert fees by comparing experts within a specialty, but ultimately it is a personal decision by the expert.

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