This short item is the 8th in a series on the role of a professional engineer at the different stages of civil litigation.  Others in the series are listed below in the References.

The series is intended to help lawyers and their clients understand how they can use professional engineers in the resolution of disputes with technical issues.

Settlement Conference

If mediation or arbitration is not tried or is unsuccessful then lawyers for the parties meet and confer with a judge to decide if a settlement is possible with his assistance.  By this time the parties will be ready to go to trial.  They will have the documents that they will be relying on, reports from professional engineers and other experts, physical and demonstrative evidence, and testimony from discovery.

The lawyers, in advance of the Settlement Conference, send the judge a brief summary of their arguments and any relevant documents.

At the conference the judge will listen to the lawyers and try to achieve a settlement.  The judge will sometimes give an opinion on how they would decide the case if they heard it at trial.  However, they cannot force a settlement and would not officiate at the trial because of their role in the Settlement Conference.

A professional engineer might assist counsel at this stage of civil litigation by carrying out the following tasks:

1. Review all technical evidence and technical facts identified at discovery, paying particular attention to new evidence
2. Re-assess determination of cause of failure, inadequate performance, or cause of accident
3. Check all technical documents and information that will be relied on in counsel’s arguments during the Settlement Conference
4. Identify technical evidence and facts favourable to the opposing party
5. Re-assess the technical strengths and weaknesses of the claim or the defense and brief counsel
6. Review and comment, as appropriate, on the technical content of counsel’s proposed summary to the judge of their arguments and documents

References

1. Steps in the civil litigation process, published August 28, 2012
2. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
3. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
4. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
5. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
6. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
7. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
8. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012

Alternate dispute resolution, ADR, refers to resolving disputes in ways other than going to court.

The role of professional engineers in ADR is to provide technical data, conclusions and opinions as to the cause of engineering failures, industrial, traffic and aviation accidents, and slips, trips and falls.  This type of information contributes to intelligent decisions as a basis for the resolution of disputes with technical issues.

This blog, one of a series, lists the tasks – itemized below, of a professional engineer’s role in ADR

In some areas, over 90% of lawsuits involving the built environment settle before going to trial, and this is often facilitated with evidence from forensic engineering investigations.

ADR can be carried out at any stage in civil litigation – even before an action is filed.  Once an action is commenced, ADR can still occur at any point but is mainly used after document production and discoveries have taken place.  At that point, each party is more fully aware of the other side’s case.  Each party has more information to assess the merits of the case, the strengths and weaknesses for both parties, and the likely outcome if proceeding through to trial. As such, ADR becomes relevant as the parties know better where each side stands.

There are three commonly used methods of ADR.  Other forms of alternate dispute resolution are used but the following are particularly relevant to civil litigation.

• Negotiation
• Mediation
• Arbitration

All forms of ADR rely on a presentation of facts, and resolution based in part on a consideration of the facts.

A professional engineer’s services are generally the same regardless of the ADR method selected by the client.

1. Review and examine all technical documentation, electronic data, physical evidence, tangible exhibits, demonstrative evidence, and transcripts of proceedings on the case
2. Visit and briefly re-examine the site
3. Review and confirm the forensic engineering investigations carried out by the different parties to the dispute, the data and technical evidence gathered, the analyses and reasoning, the findings, the technical facts, the conclusions, and the opinions formed on the cause of the engineering failure, poor structural performance, or personal injury/fatal accident
4. Review estimated costs to repair the damaged structure
5. Review the claims and the technical strengths and weaknesses of each party to the dispute, including counter claims and cross claims 
6. Review the technical facts given in support of each party’s position and the technical evidence supporting the facts
7. Confer with counsel about their clear understanding of the technical evidence from the forensic engineering investigation, the technical facts supported by the evidence, and the technical issues on which the claim, defence, and counter claims are based
8. Prepare to testify as an expert witness if required
9. Provide the hearing with technical data and information to facilitate an understanding of the technical issues
10. Interpret and explain technical issues to a mediator or arbitrator
11. Serve as a mediator or arbitrator if the dispute has technical issues
12. Assist counsel in assessing technical elements in offers made by different parties to facilitate settlement

Negotiation

In negotiation, participation is voluntary and there is usually no third party who facilitates the process or suggests a solution.

If an individual or a firm has a disagreement with another they may get together to discuss the problem and reach a mutual agreement.  This way the parties can work out a solution that best meets the needs and interests of all parties.

In some cases individual parties may also prefer to hire a lawyer or a counselor who has the expertise to help a firm to negotiate or who can negotiate on behalf of the firm.

Mediation

In mediation, there is a trained, neutral third party, a mediator, who facilitates the resolution process (and may even suggest a solution) but does not impose a solution on the parties, unlike judges.  Mediation often leads to resolutions that are tailored to the needs of all parties.  The process is informal and completely confidential.  As a result parties may speak more openly than in court.

Arbitration

In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.  At an arbitration hearing, a party to a dispute may have a representative speak on their behalf.

Arbitration may occur when parties have a dispute that they cannot resolve themselves and agree to refer the matter to arbitrators.  Arbitration can also occur because parties to contracts agree that any future dispute concerning an agreement will be resolved by arbitration.

Arbitrators are often people who are experts in a specific area of the law or a particular industry, for example, engineering.

The arbitrator makes a decision based on the facts, any contracts between the parties in dispute, and the applicable laws.  The arbitrator will explain how the decision was reached.

If the applicable law allows, parties can decide in advance whether the arbitrator’s decision will be final and binding or whether it can be submitted to a court for review if a party disagrees with the decision.

I’ve thought for a while that well written forensic engineering reports are going to take on a greater importance in light of Rule 55 in Nova Scotia and possibly similar rules in other jurisdictions.  And counsel can help get these well written reports by “cross-examining” draft copies (see following).

Not that such reports weren’t important before.  Then, however, counsel had an opportunity in direct and cross-examination to discover the evidence and go through the reasoning if it wasn’t well presented in reports.  But discoveries cost more than well written reports.  And while the cost of reports are difficult to estimate (Ref. 1), the cost of discoveries are more difficult.

I’ve thought recently, after posting a blog on the steps in forensic engineering investigation (Ref. 2), that it should be fairly easy to produce a well written report.  At least to produce the data and evidence gathered during the investigation, minus the analysis and interpretation, and the reasoning to an opinion.

A good report can simply consist of describing what took place chronologically during each step in the forensic engineering investigation.  This would also echo the stepped civil litigation process.  To some extent we think in a sequential, stepped way as well.

Factual reporting

It might even be of interest and advantageous to counsel to request a “factual” report initially – essentially stop the chronological reporting short of the analytical steps.  I’m quite certain I’ve read of this approach being taken occasionally in civil cases in the U.S.  In engineering, it is definitely an approach taken often enough in some disciplines.  For example, the separate “factual” and “interpretative” reports that are requested on the geotechnical engineering investigation of foundation soil conditions at new construction sites.

I know I outlined an approach along these lines as a means of reporting to counsel several years ago when setting up my website (Ref. 3).  I was echoing what I saw and read of being done in forensic engineering at the time.  I noted then three different ways of reporting:

• Verbal summary report
• Written summary report (I would omit the views and opinions today)
• Detailed written report

The results from the easily identifiable steps in forensic engineering investigation – except perhaps for the occurence and nature of the unknown, follow-up investigations, can be reported for each step in a simple, factual format:

• Task
• Purpose of task
• Data/Evidence gathered

You went to the site after reading the documents.  Why did you go to the site?  What did you learn?  You cut the concrete sample apart in the laboratory.  Why did you cut the sample apart; what was the purpose?  What did you learn?

Simple declarative sentences, simple words, and short paragraphs manage this type of basically factual reporting.

When there are a number of different investigations making up the whole this simple, factual format communicates effectively.

Interpretative, analytical reporting

Reporting does get more demanding – and separates the quite literate expert from the boys, when some analysis of the evidence is carried out at each step and tentative conclusions drawn.  And then interpreting, explaining, and presenting the analysis in non-technical terms so that judge, jury, and counsel can understand.  Reporting gets far more demanding when all the data must be pulled together, analysed, and an opinion formulated, and explaining the reasoning underlying the opinion.

Simple declarative sentences, simple words, and short paragraphs can pretty well manage this type of analytical, easily defended reporting as well, if the forensic engineer knows how to write.

Unfortunately, not all experienced engineers know how to write, and there is not a lot of good material and guidelines out there specifically for forensic engineers – we like to examine and measure things, take stuff apart, analyse data, and talk in jargon.

Fortunately, there is a resource for encouraging forensic engineers to take an interest in presenting their data and analyses well.  And counsel can help.  There is a text, “Writing and defending your expert report; the step-by-step guide with models” – 404 pages long, that addresses the topic (Ref. 4).  There is considerable emphasis in the book on producing a report that can be defended under cross-examination at discovery and trial – in the U.S. adversarial system.  I figure if a report can stand up to the U.S. system it is likely to be fairly well written.  Counsel can help by “cross-examining” their expert’s report before accepting them.

References

1. The cost of forensic engineering investigation, posted November 1, 2012
2. Steps in the forensic engineering investigative process, poste October 26, 2012
3. www.ericjorden.com/guidelines
4. Babitsky, Esq., Steven and Mangraviti, Jr., Esq., James J., Writing and defending your expert report; the step-by-step guide with models, SEAK Inc, Falmouth, Massachusetts, 2002 

The problem

Civil litigation can be expensive, and it’s very difficult to predict the costs at the start.  This is particularly the case in estimating the costs for the later steps in a forensic engineering investigation.  Engineering investigation can be a significant component of the cost of civil litigation involving the built environment.

It’s even more difficult estimating costs if there is a commitment to following the evidence and carrying out follow-up investigations.  This to ensure a thorough investigation of the cause of a failure and the rendering of a reliable, objective opinion.  It’s difficult for both the expert and counsel.

In spite of this difficulty, counsel should run not walk to the nearest exit if an expert offers or agrees to a fixed price to investigate the cause of a failure or an accident.  This approach to managing costs can adversely affect the thoroughness of an investigation and compromise the credibility of the expert.

Unfortunately, as far as the expense of civil litigation is concerned and, understandably, wanting to have some assessment of this at the start, it has been said, somewhat crudely, “If you’ve got to ask how much it costs, you can’t afford it”.

Put another way by an experienced professional engineer who had a lengthy career in engineering, and then went on to study law and economics and practised civil litigation for years, ” You’ve got to have a problem (a failure, inadequate performance, an accident), you’ve got to know you have a problem (results of an investigation confirming a failure has occurred, and the cause of the failure), and you’ve got to have the money to fix the problem (the money to initiate an action claiming damages, or defending against a claim, through to trial if necessary)”. (Ref. 1)  These comments are difficult to read but contain much truth.

David Stockwood, Q.C. puts it in a more refined way, “Most clients are unfamiliar with the technical and procedural aspects of litigation.  They are also unfamiliar, and shocked, by the financial realities.  While it is necessary to fully explain the “facts of life” at an early stage (and I would add, at on-going stages), use a delicate touch so that a client does not become completely discouraged from enforcing his rights”. (Ref. 2)

Following is a subjective assessment of the difficulty estimating the costs of the steps in a forensic engineering investigation.  The more difficult the step the less accurate the estimate.  The different steps are described in a previous blog (Ref. 3).

The cost assessment at the start of an investigation assumes the request is made of a professional engineer after he has been contacted, the failure briefly described, and the documents identified that counsel will provide.

The assessment is based on my experience in forensic engineering investigation of failures in the built environment on the east coast of Canada:

Difficulty estimating the cost of forensic engineering investigaion on the east coast of Canada

1. Document review ……………………………………………………………… Easy
2. Visual assessment …………………………………………………….. Fairly easy
3. Description of the failure ………………………………………………. Fairly easy
4. Survey and documentation of damage …………………………… Fairly difficult
5. Determination of how the structure was built …………………. Easy to difficult
6. Determination of site conditions ……………………………………. Very difficult
7. Laboratory investigations …………………………………………… Very difficult
8. Research …………………………………………………………………….Difficult
9. Follow-up investigations ………………………………………………. Impossible
10. Data analysis and formulation of opinion …………………………. Very difficult
11. Report ……………………………………………………………………… Difficult

Add to this difficulty of estimating the costs of a forensic engineering investigation, the difficulty of estimating the costs of the role of the expert in the different stages of the civil litigation process.  This compounds the problem further for counsel and the expert.

For example, how, at the start of an action, do you estimate the cost of answering the questions posed under Rule 55 (in Nova Scotia) not knowing how many there will be nor their complexity?

I was asked in a case not too long ago to answer 46 numbered questions submitted by opposing counsel.  On counting, and including important sub-questions, there were actually 77 questions.  The cost of answering these questions was approximately 13% of the total cost of my involvement as an expert in this litigation.

Another example, how do you estimate the cost of responding to rebuttal reports when you don’t know how many there will be nor their complexity?

Another example still: Changed site conditions requiring additional or lenghtier investigation.  I was investigating the adequacy of the underpinning of a structure one time.  The documents indicated that the structure was underpinned in one way.  My investigation found that it was underpinned in a markedly different way requiring more extensive field work and additional cost.

As well, reliable published information indicated that groundwater would not be a problem in an excavation dug for the investigation of the underpinning.  But the excavation flooded because of an unknown feature of the inadequate underpinning that was not evident in the documents requiring even lenghtier field work and additional cost.

The cost of any investigation below the ground surface is very difficult to estimate.

Forensic engineering investigation of structures above the ground surface are also difficult.  This is particularly the case for old structures, or for recent ones for which construction or as-built plans are not available which is often the case.  It’s almost impossible to accurately estimate the cost of investigating major failures like the collapse of the roof at the Elliot Lake Mall earlier this year (Ref. 4).

Managing the problem

Fortunately, this problem of estimating the cost of forensic engineering investigation and its subsequent contribution to the cost of civil litigation can be managed, at least a little. The approach is similar to that recommended for managing the cost of civil litigation, in general, quite apart from the engineering component.

Civil litigation manuals recommend informing the client of the estimated total costs at key stages in the process – starting with the initial contact, and upgrading total costs at each stage (Ref. 2).  A similar approach can be taken in estimating the cost of forensic engineering investigation.  The approach is not unlike the cost control procedures in the field of project management (Ref. 5).

The cost of each step in the forensic engineering investigation can be estimated at the start, and total engineering costs calculated.  Costs can then be upgraded with revised estimates at key steps in the process.  At each step in the process these updated engineering costs can be added to the costs accrued to date, including updated legal costs, to give an updated estimated total cost for the civil litigation.

The further along in the process the more accurate the cost estimates of subsequent steps will be, as well as the total cost.  These cost estimates of subsequent steps benefit from data from the forensic investigation as it unfolds.

Counsel can use these updated total costs – legal plus engineering, at any stage in the civil litigation process; from early to late, to re-assess the merits of the action, and inform and discuss this with the client.

Expressing estimated total costs at each stage of the litigation as a percentage of the cost of the structure that has failed, or the expected damages that will be awarded, can be particularly enlightening with respect to the merits of continuing the action.

References

1. Kent, G. K., (Jimmy), P.Eng., LL.B., M.Sc. (Economics), Personal communication
2. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed. 2004, pg. 14, Thomson Carlswell
3. Steps in the Forensic Engineering Investigative Process, posted October 26, 2012 in The Forensic Engineering Blog by Eric E. Jorden, M.Sc., P.Eng.
4. Cause of the Roof Collapse at Elliot Lake, posted July 10, 2012 in The Forensic Engineering Blog by Eric E. Jorden, M.Sc., P.Eng.
5. Project Management Institute, A Guide to the Project Management Body of Knowledge, Most recent edition, Newtown Square, Pennsylvania, USA