Heading lawyers off at the pass

According to a recent Cutter Consortium opinion piece, A Risk Assessment

Before, May Prevent Litigation After, today’s large-scale IT contracts are prone to litigation because they are often badly written, too full of legalese and not properly tied to the real world of IT.

“I am not a lawyer, most of my work is in software consulting, but the contracts are hideous, they are never mapped to what is actually happening,” said Tim Lister, author of the report and frequent expert witness in IT implementation


Lister, a principal at The Atlantic Systems Guild in New York, said IT contracts have to be more tightly written and state, as certainly as possible, who is responsible for what. Another factor is to realize that IT contracts are not static and evolve as the implementation moves forward.

“You want to try to make the contract an ongoing document because at the time you commit to a contract, there are all sorts of things that have to be investigated,” he said.

“Good, frank communication on both sides is unlikely to result in a fire call to the lawyers, even if the project is poorly conceived, said James Bach, a principal consultant at Front Royal, Va.-based Satisfice Inc., in a Cutter Council response to Lister’s opinion piece.

Lister estimates in his report that software disputes entering the U.S. court system have increased five fold in the past 25 years. Part of the reason is the very nature of changes in technology implementations.

“In the olden days, it was custom development, and you had no one to blame except for yourself,” he said. “The difference with in-house development, of course, is that we don’t usually sue ourselves.”

Big organizations like banks, insurance companies and branches of the government would build all of their large applications, not trusting work to outside vendors. With cutbacks and streamlining, and the advent of large IT consulting firms, those days are, for the most part, long gone. Hiring outside help is the norm.

“[So] one of the things that you end up with is this hybrid development now where you have all sorts of businesses both large and small that get folks in to help them select a package,” Lister said.

“And the package is not to be bought off of the shelf but is to be somehow tailored and integrated in and (thus) the packages are much more complex.”

With complexity comes the dramatic increase in the likelihood of disagreement.