Do we jeopardize the appearance of our objectivity when we are retained and confer directly with a litigant rather than with their counsel?
Sometimes counsel recommends that their client get an expert to investigate their problem, then get back to them with a report. Other times the litigant does this first then retains a lawyer.
How do we stay at arm’s length from the person with the problem in a situation like this and be seen to be objective?
What does this do to our need as forensic engineers “to be objective and be seen to be objective”?
I had this situation develop a while ago when I was retained by a property owner with a problem who subsequently retained counsel. It was difficult to stay at arm’s length particularly in view of the plaintiff’s well informed technical background compared to counsel’s.
I was reminded of this situation again last week when a litigant telephoned with a serious enough problem. The quite technical litigant described their problem well. They also referenced their lawyer, a senior person in the town who does not advertise themselves as practicing civil litigation.
What’s going to happen if I take this case? The inclination will be to confer with the technical litigant and much less so with the quite possibly very non-technical counsel.
Experts in the U.S. are being advised by organizations like Expert Communications and SEAK, Inc. not to take cases like this. (Ref. 1, 2) There is too much risk to the perceived objectivity of the forensic engineer according to these groups. If we appear to be biased in the one instance, what does that do to our credibility for evermore?
Atlantic Canada is not the U.S. – civil litigation is different in the U.S., but I think we’ve got to be careful up here, nevertheless, and take steps to ensure we work closely with counsel as forensic engineers even though we might be initially retained by the litigant.
I have in the past, and would in the future, report directly to counsel and copy all material to the litigant. I would explain to the litigant that this is the best procedure and in his interests. An advantage is the ongoing opportunity to explain and keep counsel up to speed on technical matters.
I’ve had the experience of two cases where counsel thought they understood their case technically, and declined my briefing, and each case went badly for the plaintiff, and indications were – from the judge, no less, that they shouldn’t have.
It’s particularly important, in the interests of being seen to be as objective as possible, to have the accounts go through counsel. This also enables counsel to carry out ongoing assessments of the merits of the case, including legal and forensic engineering investigative costs as a percent of estimated damages. (Ref. 3)
We need to guard the appearance of our objectivity with a vengeance, for the benefit of the litigant, ourselves, and counsel. But it’s not always easy when the litigant seeks and retains the forensic engineer directly.
References
- Expert Communication, Dallas, Texas www.expertcommunications.com http://tinyurl.com/m2sn8sh
- SEAK, Inc, Falmouth, MA www.seak.com
- Stockwood, Q.C., David, Civil Litigation, 5th ed., 2004 Thomson Carswell, Toronto