The problem

Civil litigation can be expensive, and it’s very difficult to estimate the costs at the start.  This is particularly the case in estimating the costs for the later stages in a forensic engineering investigation.

Unfortunately, in spite of this difficulty, engineering investigation can be a significant component of the cost of civil litigation involving the built and natural environments.

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 counsel and the expert.

Thoroughness in carrying out forensic engineering investigations is emphasized in guidelines for professional engineers (Ref. 1 to 8) and implied in civil procedure rules requiring a statement of the reliability with which an opinion is held. (Ref. 9)  You can’t have a reliable opinion without a thorough forensic engineering investigation.

In spite of this difficulty estimating costs, 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.

As far as the expense of civil litigation is concerned and, understandably, the client 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, (Ref. 10)

– “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 or accident), and,

– “You’ve got to have the money to fix the problem (the money to initiate a legal action claiming damages, or defending against a claim, and the money to carry out the various steps in the legal and forensic engineering processes through to trial if necessary)”.

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. 11)

The following is a subjective assessment of the difficulty estimating the costs of the steps in the forensic engineering investigative process.  The more difficult the step the less accurate the estimate.  The different steps are described in a previous blog (Ref. 12).

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, the documents identified that counsel will provide, and some of the documents looked at (not necessarily studied).

The assessment is based on my experience in the forensic engineering investigation of failures in the built and natural environments, and fatalities and personal injury accidents, in Atlantic Canada, northern Canada, the Caribbean, and overseas in Australia and the U.K.

Difficulty estimating the cost of forensic engineering investigation in Atlantic Canada (The items in bold are the main steps in a forensic engineering investigation.  The other items in regular are a breakdown of the main steps).

1. Document review ………………………..………………..…………………… Easy
2. Visual assessment
3. Visit and visually assess site ……………………………………………. Fairly easy
4. Photograph and videotape site …………………………………………. Fairly easy
5. Interview witnesses ………………………………………………………..… Difficult
6. Field investigations
7. Describe the failure or accident…………………………………………. Fairly easy
8. Survey and document damage to the structure …………………… Fairly difficult
9. Determine how the structure was built ………………………..…. Easy to difficult
10. Determine the site conditions ……….…………………………..……. Very difficult
11. Laboratory investigations …………………………………………… Very difficult
12. Research
13. Desk studies and leg work ………………………………………………….. Difficult
14. Identify codes ………………………….………………………………. Fairly difficult
15. Identify standard of care ……………….………….. . Fairly difficult to very difficult
16. Follow-up investigations ………………………………………………. Impossible
17. Data analysis and formulation of opinion ………………..………. Very difficult
18. Repair and remediation ……………………………………..……………… Difficult
19. Report ………………………………………………………………………… Difficult

(The foregoing assessment of difficulty was taken from a posting to this blog site on July 15, 2013 entitled, “Steps in the forensic engineering investigative process with an Appendix on costs”)

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 – see Bibliography on the role of the expert in the process.  This compounds the problem further for both 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, in this example, 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 – see foregoing paragraph, requiring even lenghtier field work and additional cost – field costs increased by approximately 50% in this particular case.

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 in 2012. (Ref. 13)

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, 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, as the different stages are reached. (Ref. 11)  These would be an approximate range of legal costs.

A similar approach can be taken in estimating the cost of forensic engineering investigation.  Again, it would have to be – in a manner similar to law, an approximate range of engineering costs, and the more in advance you try to estimate costs the more approximate the cost.  The approach is not unlike the cost control procedures in the field of project management. (Ref. 14)

The cost of each step in the forensic engineering investigation can be estimated at the start – keeping in mind the difficulty estimating the cost of different steps (see foregoing tabulation), and total engineering costs calculated.  Costs can then be upgraded with revised estimates as each different step in the process is reached.

Then, 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 in the legal and forensic engineering investigations benefit from data from the previous steps as the legal and engineering processes unfold.

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.

Counsel can express 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.  This percentage can be particularly enlightening with respect to the merits of continuing the action.

References

1. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, New York, 1989
2. ASCE, Guidelines for Forensic Engineering Practice, New York, 2003
3. ASCE, Guide to Investigation of Structural Failures, New York, 1986
4. Association of Soil and Foundation Engineers, Expert: A Guide to Forensic Engineering and Service as an Expert Witness, Silver Spring, Maryland, 1985
5. Meyer, Carl, ed., Expert Witnessing: Explaining and Understanding Science, CRC Press, London, 1999
6. Ratay, Robert T., ed., Forensic Structural Engineering Handbook, McGraw Hill, New York, 2000
7. Day, Robert W., Forensic Geotechnical and Foundation Engineering, McGraw Hill, New York, 1999
8. Babitsky, Steven and Mangraviti, Jr., James J. The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Falmouth, MA, 2008
9. Rule 55, Nova Scotia Civil Procedure Rules
10. Kent, G. K., (Jimmy), P.Eng., LL.B., M.Sc. (Economics), Personal communication
11. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed. 2004, pg. 14, Thomson Carlswell
12. Steps in the Forensic Engineering Investigative Process with an Appendix on Costs, posted July 15, 2013
13. 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.
14. Project Management Institute, A Guide to the Project Management Body of Knowledge, Most recent edition, Newtown Square, Pennsylvania, USA

Bibliography

1. What is forensic engineering?, published, November 20, 2012
2. Writing forensic engineering reports, published, November 6, 2012
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process with an Appendix on costs, published July 15, 2013
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012