This is particularly the case when counsel is assessing the merits of a case.  There’s a strong argument for consulting an “expensive” expert then.

This is echoed in the remarks of no less an authority than John Sopinka, former judge, Supreme Court of Canada (Refs 1 and 2) and in the text by the quite respected David Stockwood, Q.C., Ontario. (Ref. 3)

A key technical issue missed by counsel could render a case untenable.  Or be too expensive to investigate relative to damages thought due the Party and to the worth of the file to counsel.  Best to spend some money on an expert at the case-assessment stage than possibly lose a lot of money later.

I blogged last year on the importance of retaining an expert “…early in the life of a case”. (Ref. 2)  I was reminded of its importance to a Party seeking justice and the money involved on reading the following in an engineering case study:

“As a wise man once said about “expensive” experts, “When you have to hire one to undo the work of an amateur, they don’t seem so expensive after all.” ” (Ref. 4).

The case study was of inadequate renovation of a building that cost the owner $300,000 a few years ago. (Ref. 4)  The expert’s fees are certain to have paled by comparison.  I also recently investigated an inadequate renovation that is likely to cost a lot of money to fix.

Counsel almost always recognizes that the cause of a failure or accident must be determined – a key technical issue for sure.  But there are often other issues – key ones and subordinate ones – that are beyond counsel’s technical expertise to identify.  Some of these might need to be investigated in determining cause, at unexpected expense.

I’ve had the occasional investigation stopped because of mounting cost to the worth of the file.  Counsel’s costs are cut but I wonder to what extent justice for the Party is compromised by an incomplete forensic investigation?

The cases likely will be argued still but without benefit of complete technical input.  One case is certain to be argued and likely cost the law firm much more compared to the cost of an “expensive” expert.  In this case, for want of a simple, one line, 2″ long, high school, arithmetic calculation that would quickly resolve an important technical issue in counsel’s favour.  Without the calculation three parties will keep arguing their respective subjective assessment of the size of a feature in the landscape – on and on and dollar after dollar.  I offered to report verbally but senior management declined.

What happened in these cases was that non-technical people – counsel, with all due respect, estimated the cost of technical services unrealistically low when the merit of the cases were being assessed.  Yet in these cases – three come to mind, the awards would be well into six figures.

Consulting with an “expensive” expert before a case is taken will ensure most if not all technical issues are identified.  And the need recognized to investigate these at some cost if the case has merit.  The expert might cost in the very low 1,000s, the possible need for forensic investigation in the low 10,000s won’t be a surprise, and awards in the 100,000s won’t be compromised by investigations stopped in mid-task.

Reference

1. Sopinka, John, Judge, Supreme Court of Canada, The Use of Experts, Chap 1, The Expert: A Practitioner’s Guide, Volume 1 by Matthews, Kenneth M., Pink, Joel E., Tupper, Allison D., and Wells, Alvin E. Carswell 1995
2. Please, Counsel, retain an expert “early in the life of the case”.  Posted March 27, 2014
3. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
4. Reference Advocates Principles
5. Nicastro, David H., editor, Failure Mechanisms in Building Construction.  ASCE Press, 1997 page 26

Bibliography

1. The role of a professional engineer in counsel’s decision to take a case – Update Posted May 21, 2014
2. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts, Posted November 20, 2013
3. Lewis, Gary L., editor, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003