Those who have followed this site for any period of time are probably aware that one of my passions is to see the whole business application space “cleaned up.”
A recent group of comments and private messages I have received about consultants who knowingly commit fraud really got me aggravated. I’ve actually received e-mails through my site from these “freshers” who would brag about having their fake resume ready and they were excited about actually conning their first customer. Enough already, I decided to do a series on helping expert witnesses through the litigation process against some of these unscrupulous tactics.
Although I am NOT, NOT, NOT, a fan of litigation I believe we have reached an unfortunate time in the business application consulting space where something must be done. There are too many fraudulent consultants, too many staffing firms which facilitate and in some cases participate in this fraud, and too many system integrators who take advantage of clients who do not fully appreciate how SAP projects work. Please understand this is not legal advice, for that you must consult an attorney.
You Just Got Called to be an Expert Witness in an SAP, Oracle, or other Business Application Lawsuit
Being called upon or contacted to be an expert witness in a court case for your field of expertise can be an exciting and frightening proposition. Over the years I’ve been contacted by lawyers and expert witness brokers to do exactly that. I’ve never taken them up on the offer but have taken the time to understand the process. If you want to be an “expert” witness in some multi-million dollar litigation about a failed SAP, Oracle, or other business software implementation you will want to prepare for…
What Can You Expect?
First, be prepared to have your writings, resume, personal life, and your past carefully scrutinized in tremendous detail. Anything you’ve written online, in publications, or even in social media spaces is fair game for legal evaluation over your judgment as an expert witness. Consider carefully whether you want past events that might be “colored” to affect your professional judgment raised in a court of law (and no, that is NOT why I haven’t accepted any expert witness assignments ;) .
What are the Legal Requirements for Expert Witness Testimony
First of all expert testimony in the United States is generally governed by Federal Rule of Evidence 702. That rule governs “technical or other specialized” testimony from experts and virtually every U.S. State has either the same rule or some equivalent. However, each state can have different ideas of what that Rule actually means in their own state level courts so it is really important to understand what state a case is in, or whether it is in federal court. In legal terms this is related to “venue” or what court the case will be tried in. Is it is state or federal venue.
Standards for Admitting Expert Testimony
Two key U.S. Supreme Court cases govern the admissibility of expert testimony. The two cases which either open the door, or close it, for expert testimony are often referred to as “Frye” and “Daubert.” To be an expert witness you really should be familiar with these two cases and what they mean to you if you consider offering expert testimony.
These legal cases use two different standards which are in use to some extent throughout the United States. The Frye case comes from a Washington D.C. Circuit court case with the case style (or caption) of Frye v. US, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir 1923). That case established a “wide acceptance” standard meaning that something should not be admitted into evidence unless the subject matter being testified about covered something that was widely accepted. This usually (although not always) meant that there was lots of published material that had been peer reviewed or scrutinized in other ways. An expert under Frye addresses issues almost exclusively from the “wide acceptance” standpoint. Keep in mind that the “wide acceptance” standard may have allowed the “flat earth” society to have prevailed in court in the Middle Ages.
As both science and technology continued to mature at a faster pace additional clarification was added in another U.S. Supreme Court legal case which is often cited as Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That case established newer and more robust “scientific methods” which must be considered before accepting expert testimony.
While there is no complete checklist, and there are several additional factors to consider, one U.S. Federal Appeals Court has summarized a short list of a few key issues which should be considered for the Daubert standard. These include:
- Whether the theory or technique of the expert can be tested.
- Whether there is a known, or potential, rate of error that can be determined with some level of assurance.
- Whether there has been any peer review and publication (think Frye here).
- Whether the theory or technique is generally accepted in the expert’s community (again, think Frye). For us it would be in the SAP community.
The Gatekeeper Role to Prevent Unreliable Expert Testimony
The role of the judge in court cases involving expert witnesses is to act as a “gatekeeper” by letting in only those experts who at the most basic meet two key criteria: the testimony has some measure of reliability by fitting the criteria of either of the cases above, and the testimony directly relates to some set of facts or circumstances of the case that the expert will help everyone understand. The expert’s testimony should help bring enough clarity that the judge and jury can more easily make an informed decision about some fact or issue in the case.
Which Expert Testimony Legal Standard to Use?
It is important to understand that if you end up litigating as an expert witness in a state court case in the United States rather than a federal case you may be subject to different standards and requirements as an expert witness. Again, which venue is this, is it a state court case or a federal case? For example, as of 2011, the following states use the following expert witness standards as defined in the legal cases above [FN1]:
[A]s many as 34 state jurisdictions have adopted the U.S. Supreme Court’s standards articulated in Daubert. Those states include Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming – and most recently in 2011 Alabama and Wisconsin.
Currently 9 states and the District of Columbia follow the Frye rule – either specifically rejecting Daubert or choosing not to apply Daubert principles. These include California, the District of Columbia, Florida, Illinois, Kansas, Maryland, Minnesota, New York, Pennsylvania, and Washington.
Meanwhile, 7 states have their own unique approach and utilize neither Daubert nor Frye: Missouri, Nevada, New Jersey, North Carolina, North Dakota, South Carolina, and Virginia.
This is more than enough of an introduction to the legal standards. There are a few areas to focus on here. There is the consulting fraud itself – fake skills, experience, and backgrounds. There are considerations for how much affect the consulting fraud has had on a project (i.e. damages, etc.) and then there are potentially fraudulent system integrator tactics which are designed to maximize their profit while taking advantage of the client.
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[FN1] Daubert, Frye … or Both? Tracking Florida’s Buy-In. http://www.ims-expertservices.com/blog/2012/daubert-frye-or-both/
