I had an idea recently about how counsel can reduce the cost of forensic engineering investigation – in a planned way.  Some of you are actually doing it now but by default – rather than by plan.  You are defaulting to using your professional engineer as a consulting expert rather than as a testifying expert – but doing this years after you take the case (Ref. 1)

My thoughts were driven by how counsel are reacting to the early costs of an investigation.  Also how geotechnical engineering – a specialized field in civil engineering, reports on the geotechnical investigation of foundation soil conditions.  (I specialized in geotechnical and foundation engineering work for quite a few years)

Factual and interpretative reports in engineering

Two types of report can be issued in geotechnical work: – a factual report and an interpretative report.

(Stay with this; it does relate to civil litigation quite quickly)

A factual report gathers together all the data from the office, field, and laboratory investigations and submits this to the client – without analysis and interpretation.

An interpretative report analyses and interprets this data and draws conclusions on the foundation soil conditions and their significance to the design engineer.  The latter can be quite comprehensive, particularly if foundation conditions are complex.

The cost of a factual is easier to predict and control.  The cost of an interpretative report is difficult to predict and control.  Sometimes very difficult because you don’t know what you are going to find at the site of an engineering failure or accident if you follow the evidence. (Ref. 2 and 3)

Geotechnical clients will actually specify the type of report they want, a factual report or an interpretative report.  This is quite prevalent in the U.K. and followed at times in Canada and the U.S.

Factual reports in civil litigation, by default; not so good

I see something like this happening now in civil litigation – counsel deciding on a factual-type report or no report at all.  But, driven by the shock/surprise at the cost of expert services and forensic engineering, rather than driven according to plan.  Particularly when counsel did not confer with an expert at a very early stage of civil litigation and get a feel for these costs. (Ref. 1)

Counsel are sometimes deciding against further investigation when – I suspect, they see investigative costs coming in and the worth of the file to the firm being whittled away.  They quickly default to using the professional engineer as a consultant rather than as an expert. (Ref. 1)

Factual reports in civil litigation, by plan; good

Counsel ask for a preliminary report, a verbal report, or no report at all, relying instead on a verbal discussion of the findings.  Some of this reporting is quite factual as opposed to interpretative.  This is quite okay, but much better if it’s planned at the start of litigation rather than defaulting to this several years down the road. (Ref. 1)

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. 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/

3.Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2012 http://www.ericjorden.com/blog/2013/09/01/why-the-difficulty-estimating-the-cost-of-forensic-engineering-investigation/