If counsel decides to take a case after meeting with the client and assessing the merits of his or her claim – see post, June 26, 2012, and the dispute has not been resolved by some other means, then civil litigation formally begins with counsel preparing a Notice of Claim.

Preparing and filing a Notice of Claim is one of the first four steps in the civil litigation process collectively known as the Pleadings – several additional steps continue the process to trial:

• Notice of Claim
• Statement of Claim
• Statement of Defense
• Affidavit of Documents

The Pleadings concisely define the issues between the parties and set out the facts.  The Notice of Claim describes the parties and the fact that the Plaintiff is starting a legal action in court against a defendant or a group of defendants.  The Statements of Claim and Defence, and Counter Claims are a listing of the facts, including the technical facts.

Counsel, in preparing a Notice of Claim, might take a closer look at the existing information relied on initially in deciding whether or not to take the case.

Deciding to prepare a Notice of Claim and go forward with an action is a critical step for counsel and the client.  It’s a critical step because the Plaintiff has gone public in a sense and is on record that they believe they are entitled to damages for a perceived wrong.  To some extent there’s no turning back.  The decision to prepare and file a Notice of Claim must be well informed – see below, Case #1; Damaged Aircraft Wing.

Professional engineers can assist at this stage by also studying the existing information more closely, identifying the known technical issues and facts, and assessing the technical position of the parties that might be involved in the action.  Some new information is likely to be gathered by the engineer (see list below) because of the critical nature of this step.

(Up to this point – preparing a Notice of Claim – an assessment of merit is based mainly on existing information.  Preparing a Statement of Claim to which the Notice of Claim is typically attached is certain to involve some detailed gathering of new information – see future posting).

The role of a professional engineer would involve carrying out the following tasks.  Technical data from these tasks would contribute to counsel’s assessment of the strength of a case and whether or not to actually prepare and file a Notice of Claim and begin a lawsuit:

1. Visit the site and visually examine exposed surfaces
2. Confirm Plaintiff’s complaint that the structure has failed or is not performing properly
3. Study documents and existing information in more detail
4. Develop initial hypothesis of failure
5. Refine identification of technical issues
6. Assess the technical strengths and weaknesses of the case for each party identified by counsel
7. Brief counsel on where engineering investigations appear to be leading with respect to an opinion on the Plaintiff’s claim and its legitimacy
8. Outline main engineering investigative tasks
9. Revise possible investigative costs based on the main tasks, the engineer’s past experience, and engineering precedents

Case #1; Damaged Aircraft Wing: Assessing technical strength.  A lawyer considered that his client had a claim for more than one million dollars in damages to an aircraft wing.  The lawyer was quite certain about this.  It was understood that hydrochloric acid had formed in an exhaust pipe from a paint shop and dripped on the wing corroding the skin and the spar inside.  A professional engineer was retained to investigate the situation.  He established during a visual examination of the site that the aircraft wing was damaged by acid but the situation was such that the client did not have a strong case.  Preparation of the Notice of Claim was stopped.    

References

1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th edition, Thompson Carswell, 2004
2. Walker, Janet, General Ed., The Civil Litigation Process: Cases and Materials, 6th edition, Emond Montgomery Publications, 2005
3. The Civil Litigation Process – An Overview, Heydary Samuel, Ontario
4. Going to Court: Civil Trial Procedure, Community Legal Information Association of P.E.I., Inc. November 2003
5. Flow charts summarizing the process of civil litigation under the Rules of Civil Procedure, Ontario, January 1, 2010