Update and re-issue of the role of a professional engineer ….

I decided to update and re-issue this article after recently blogging on the changes taking place in civil litigation.  Also after blogging on the importance of well-written expert reports. (Ref. 1, 2, 3)  The article first appeared on June 26, 2012.

These changes are resulting in greatly increased emphasis on the expert’s report.  If well-written, the report will result in the technical evidence being presented and responded to quickly and clearly by all parties.  The dispute will be resolved sooner.

These changes will also encourage retaining an expert as early as possible.  Because, of course, you can`t have an expert report without a forensic investigation, and you can`t have an investigation until you have an expert.  The sooner an expert is consulted and an investigation carried out – if needed, the sooner the dispute can be resolved.

Some cases may be over before they begin.  If an expert is consulted when counsel is deciding on whether or not to take a case, the expert’s comments may show that the case is technically weak or too costly to investigate thoroughly.

To summarize, I’m updating this blog because of the following effects that changes in civil litigation are having:

• Increased emphasis on the expert’s report
• Earlier retention of an expert

The role of a professional engineer …

Civil litigation tentatively begins when counsel meets with a potential client.  The purpose is to gather information to help him or her assess the merits of the case and decide if he should take it.

A professional engineer could have a role in this meeting, or in consultation shortly afterwards.  This is particularly the case if the legal and technical issues are likely to be complex requiring extensive engineering investigation to support a reliable opinion.

I’ve seen cases that should never have gone forward.  In some cases because of a lack of technical merit.  In others because of the client’s limited financial resources to bear the cost of the forensic engineering investigation necessary to determine the cause of the failure or accident.  These would be costs learned about after a claim was filed – and only after a professional engineer was retained to investigate the technical issues.

During the meeting, counsel obtains information from:

• The client’s description of the problem and the damages he believes he has incurred,
• Documents provided by the client,
• Knowledge of witnesses,
• Answers to questions raised by the lawyer,
• The lawyer’s past experience of similar matters, and,
• Comments by an expert on the technical issues.

One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case.  An expert can make or break a case and if thought to be necessary should be chosen carefully and retained early (Ref. 4).  Even if only retained briefly to confirm counsel’s assessment of technical merit, in the event counsel decides not to take the case.

If a professional engineer is not included in the meeting, then counsel might confer with one later during his review of the facts prior to making a decision about the case.  The engineer would, of course, review the information from the meeting, particularly the documents, and identify the technical issues prior to advising the lawyer.

The engineer can also provide preliminary comment on the forensic engineering investigation needed to address the technical issues and to formulate an opinion on the cause giving rise to them.  The engineer would outline some of the tasks that would need to be carried out during an investigation and the time involved – factors that can have a significant impact on the cost of litigation.

If the technical issues are complex – and the engineer can certainly help determine that, the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs.  The client’s ability to bear these costs is important information in counsel’s decision on taking the case.  An engineer can have a role in assisting counsel make that decision.

A professional engineer’s tasks during counsel’s first meeting with the client

Following are 18 tasks that a professional engineer – or any expert for that matter, could carry out during or shortly after counsel’s first meeting with a potential client.  Completing some or all of these would assist counsel’s decision about taking the case:

1. Attend and audit the meeting for technical issues, or meet with counsel shortly afterwards
2. Review client’s descriptions of the problem and the reasons for claiming damages
3. Read available documents
4. Review witness’ statements as soon as taken by counsel
5. Begin identification of potential technical issues
6. Begin identification of technical documents counsel must seek
7. Familiarize counsel on the typical stages and tasks in a forensic engineering investigation, the possibility of unexpected follow-up investigations, the fact that investigations can sometimes lead in unexpected directions, the time required, and the difficulty estimating costs (See a bundle of blogs, Ref. 5) 
8. Outline a preliminary engineering investigation and the major tasks involved
9. Speculate on follow-up investigations
10. Identify specialists that may be required
11. Speculate on the order of magnitude of forensic investigative costs
12. Identify physical evidence, tangible exhibits and possible demonstrative evidence
13. Brief counsel on parties that might be involved in the potential litigation and their relationship to the technical issues
14. Provide information that would facilitate early settlement
15. Note unfavourable evidence for the potential client’s claim
16. Remind counsel that only one side of the story is known.  The opponent’s story and documents could give rise to a small shift in the technical facts and alter the complexion of the claim
17. Tentatively assess the technical merits of the case with respect to the potential parties
18. If counsel decides to take the case, and position letters are appropriate, ensure that demand letters, and responses, are based only on well-established technical facts and data as known at the time

References

1. How experts are retained in civil litigation is changing – and the changes are good for counsel and the justice system. Posted May 1, 2014 http://www.ericjorden.com/blog/2014/05/01/how-experts-are-retained-in-civil-litigation-is-changing-and-the-changes-are-good-for-counsel-and-the-justice-system/
2. Guidelines for writing an expert witness report. Posted May 17, 2014 http://www.ericjorden.com/blog/2014/05/17/how-to-write-an-expert-witness-report/
3. The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012
4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
5. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013 http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/

“An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 1)  And, I might add, turn rebutting the report prior to discovery into a cakewalk.

Today, with the greatly increased emphasis on the expert’s report – see blog posted May 1, technical evidence is presented and responded to quickly and clearly by all parties unencumbered by the discovery process.

Today, you must retain an expert who has two basic skills, in addition to the motherhood requirements of appropriate education and experience:

• Skilled investigating the cause of the engineering failure or accident
• Skilled in presenting investigative findings in a well-written report

The chances that your expert will be cross-examined is getting close to almost negligible, and, if they are, it will be easier – if they have a well-written report.

“Guidelines” on writing reports have been around a long time.  There’s always a chapter on writing reports in the books on forensic engineering, science, and expert witnessing.  I’ve read a few of these books and, generally, I’m not impressed with the report writing sections.  Not even those published by our learned associations. (Ref. 2, 3)

They differ in how they guide, for one thing.  Many would not meet the requirements of civil procedure rules in eastern Canada, like Rule 55 in Nova Scotia.

And, almost without exception, there is no comment on the sorting, synthesizing, and analysing of the data from a forensic investigation, the drawing of well-supported conclusions, and the formation of an opinion.  Unquestionably, as important a task as collecting the data.  There are some but they are few. (Ref. 4, 5)

Your expert must be able to present the findings of their forensic investigation in a well-written report.  That’s not always being done.  Yet, it’s critical today.  There’s help.

Three experienced trial lawyers in the U.S. – James Mangraviti, and his co-authors, Steve Babitsky and Nadine Donovan, have addressed this problem in great depth.  Their quite massive 560 page, 11.25″ x 9.0″ x 1.25″ text goes into considerable detail on all aspects of expert report writing. (Ref. 1)

How to Write an Expert Witness Report was published this winter, 2014.  It includes many well developed check lists, typical well-written reports for common forensic investigations, and executive summaries.  One long summary for the entire book and one at the start of each of the 14 chapters.  I find the check lists and executive summaries particularly valuable.  Also the 20 pages of “Advice from the Trenches” – comments on drafting expert reports by different experts throughout the U.S.

You can see the book’s contents at www.seak.com  It is similar to another they published in 2002, Writing and Defending Your Expert Report, but much more comprehensive. (Ref. 6)

The recent text is based on the authors’ experiences as trial lawyers, review of discovery and trial transcripts, the response to their earlier book, and suggestions from specialists in many fields.

I’ve used their older text for years and the check lists and summaries there and now use the new one.  I actually recommended some time ago to readers of my blog to give a copy of the older text to their experts.  I now recommend giving the updated book.

Mangraviti et al’s text takes the guidelines on how to write an expert report – and a rebuttal report, for that matter, to a whole new level.  There is no excuse for anything less than a well-written report going to counsel and the justice system on the cause of a failure or accident.  In view of the increased emphasis on the expert’s report, it’s imperative that guidelines like these be followed if the truth of a matter is to come out.

References

1. Mangraviti, James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc., Falmouth, MA 2014
2. Lewis, Gary L. ed, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003
3. ASCE, Guidelines for Failure Investigation, 1989
4. Toulmin, Stephen E., The Uses of Argument, Cambridge University Press, 2003
5. Noon, Randall, Introduction to Forensic Engineering, CRC Press, Inc., Boca Raton, Florida, 1992
6. Babitsky, Steven, and Mangraviti, James J., Writing and Defending Your Expert Report, SEAK, Inc., Falmouth, MA 2002

The way in which experts are used in civil litigation is changing, at least the main emphasis of their role in the civil litigation process.  And these changes are good for counsel and the justice system.

The role of experts in the civil litigation process has been identified in detail in previous postings. (Ref. 1)

Emphasis today

The emphasis today is on (1) the presentation of findings in oral and written reports after a forensic investigation is complete, rather than on testimony in discovery or at trial.  And I believe there will be increased emphasis on (2) oral reports – certainly for smaller cases, rather than on written reports.

How experts can be retained

In Canada and the U.S., experts can be retained in one of two basic ways:

• Consulting expert
• Testifying expert

Comments by some lawyers I have worked with suggest these two types of arrangement are understood in eastern Canada.

Based on my experience in this part of Canada, these two methods of retaining an expert can be broken down further:

1. Consulting expert and technical advisor to counsel
2. Investigating expert: – Oral report
3. Investigating expert: – Written report
4. Testifying expert; ADR, discovery, trial
5. Consulting expert to the judge

The break down reflects and accommodates the changes taking place.

Why the changes in emphasis are good

These changes are good for counsel and the justice system, and the cost effective settling of disputes.  This is because:

• Counsel will take cases with greater confidence in their client’s position
• Counsel will be able to monitor costs more easily
• Experts will be retained for their skill presenting their investigative findings in well written reports – not just for their skill investigating the cause of a failure or accident
• A more cost effective level of forensic investigation will be carried out
• The technical findings will go forward more readily, unencumbered by the direct and cross-examination process

What’s causing these changes?

These changes in how experts are used is being driven by:

• Civil procedure rule changes such as Rule 55 in Nova Scotia
• Recognition that the majority of cases involve claims that are small rather than large – fortunately, we don’t have catastrophic engineering failures and terrible accidents very often
• Recognition that the thoroughness – and hence cost, of forensic investigations is not greatly different regardless the value of the claim.  Small claim or large, we must go through fairly standard investigative steps
• The fact that the great majority of cases are settled out of court – I’ve seen reported as many as 95% to 97%, and this certain to go higher in light of the rule changes, and,

Comments on how experts can be retained

Following are a few comments on how experts are being retained today for the good of the justice system:

1. Consulting expert

Counsel might initially retain an expert for a general discussion of the case and the technical issues as initially perceived by each.

Such a discussion could be quite brief and based on counsel’s description of the incident.  Or of greater length depending on where counsel is at in the civil litigation process. (Ref. 1)

Lengthier discussion would be based on some investigation by an expert.  The investigative tasks would depend to some extent on the role assigned the expert. (Ref. 1)  At the very least, an expert would read a few documents and visit the site.

The very early emphasis in such discussions should be to provide counsel with technical information to help him or her assess whether or not to take the case. (Ref. 2)

Also, some emphasis on the expert’s early thought on the direction a forensic investigation might lead, with respect to the cause of a failure or accident.  Sometimes we have an idea early on – a hypothesis as to cause, that would be checked later during a forensic investigation.

It’s often possible in these discussions to outline the approximate nature of a forensic investigation of the problem.

Very approximate costs to investigate the cause of a failure or accident might be suggested based on the expert’s experience with other cases.  At the very least, advice could be given on whether it’s likely to be an expensive or an inexpensive investigation or somewhere in between.

If counsel takes the case, the expert could provide some guidance on preparing a statement of claim or defense. (Ref. 1)  This involvement is important.  I’ve seen cases where, based on the technical issues, the wrong party was named in one instance and responsible parties were not named in two others.  I was retained some time after these actions were started – years after in one case.

The next two ways of retaining an expert must be evaluated carefully, particularly, in going from an oral report to a written report.  “An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 3)  And, I might add, turn rebutting the report before discovery into a cakewalk.

An argument can be made, and serious consideration given, for peer review of a written report. (Ref. 4)  This is standard practice in some engineering and scientific fields.

2. Investigating expert: Oral report

Based on the results of the initial discussions, counsel may instruct a consulting expert to begin investigating the cause of the failure or accident.  To begin the forensic engineering investigative process. (Ref. 1)

The objective would be to gather some data to support an oral report of findings to counsel.

An oral report allows for additional discussion of the case.  It also gives counsel data on which to base a decision to carry out a complete forensic investigation.  And some data on which to base a decision to commission a written report.

There is emphasis at this stage on some data.  This is because the expert would report to counsel as soon as relevant and meaningful data had been collected.  He would not necessarily wait until the end of a complete forensic investigation.

The expert’s work at this point is very likely to be characterized by preliminary investigative work.  Also possibly by a factual reporting of data with little or no interpretative reporting.  This type of reporting is used often enough in some fields, e.g., geotechnical engineering.

Some of the necessary preliminary work might be identified in discussion during the Consulting Expert stage.  For certain, the expert would recognize when he had some useful data justifying interrupting the investigation and reporting to counsel.

But it’s also possible the investigation will have been completed before significant data became available.  Or this was considered the most expedient way – to complete the forensic investigation and gather all data before reporting.

Even if the investigation was completed, only an oral report would be given at this stage as required by counsel.

The oral report, in addition to facilitating additional discussion of the case, also allows counsel to assess if it’s in the client’s interest to incur the cost of completing the forensic investigation and preparing a written report.

3. Investigating expert: Written report

Counsel could retain the consultant to prepare a written report on the forensic investigation according to the requirements of civil procedure rules governing experts.  The report would describe the forensic investigation in detail, the data gathered, the analysis carried out, the conclusions and the reasoning leading to these, and the opinion on cause stated.

The forensic investigation would be completed before preparing a written report if this was not done for the oral report stage.

The report would likely be distributed to all parties to the action.  This would in turn generate a number of questions on the report by the different parties to be answered by the expert.  It could also result in a rebuttal report which might need to be responded to by the expert as well.

4. Testifying expert

In the unlikely event that the action goes to discovery and trial a consulting expert might be required to testify on his investigation and subsequently be cross-examined on his testimony and report.

In some areas of Canada and the U.S., a testifying expert is retained in addition to an investigating expert.  The testifying expert would present the investigating expert’s work and findings at discovery and trial.  Testifying is a skill some investigating experts have and some don`t, hence the need.  I can imagine this would be for larger cases.  Forensic engineering investigation in eastern Canada is characterized by many smaller cases.

5. Consulting expert to the judge

The judge might retain an expert independent of counsel.  This is done occasionally in eastern Canada.  I understand it`s quite prevalent in the U.K.  I believe this is likely to occur less frequently with fewer cases going to trial.  Also because of the change in emphasis in how experts are retained.  And the fact that particularly well-written expert reports will derive from the changes.

References

1. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts. Posted November 20, 2013 http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/

2. The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012 http://www.ericjorden.com/blog/2012/06/26/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case/

3. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report,  SEAK Inc., Falmouth, Mass. 2014

4. Peer review in forensic engineering and civil litigation. Posted November 26, 2013 http://www.ericjorden.com/blog/2013/11/26/peer-review-in-forensic-engineering-and-civil-litigation/