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