I blog because I want you to know about an interesting field of engineering that I enjoy and that contributes to the resolution of disputes – a nice way to practice. Also, an engineering practice that is relevant to the field of practice of many of you.
To some extent, ours is a litigious society and one with a lot of insurance claims involving engineering failure and personal injury. Inherent in this situation are technical obligations for counsel and their need to know something about forensic investigation. Some cases don’t go forward or claims settle until the technical issues are identified and investigated by an expert.
In many cases, an important duty for counsel is ensuring the technical evidence is properly understood by the court or tribunal. (See the Comment on Reason #1 below, also Ref. 1) There are other reasons I blog – I’ve identified and listed eight (8) below, but this is an important one.
I identified the following reasons by reviewing the 134 blogs that I have posted in the last four years.
Why do I blog?
Reason #1 I want to describe the nature and methods of forensic investigation for counsel and insurance claim consultants. Including some of the newer methods like a low flying drone fitted with a camera to photograph the scene of an engineering failure or personal injury.
(An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site. I was surprised at what I saw)
I want to describe how we carry out independent investigations, observe, analyse, draw conclusions and formulate objective opinions. Then present quality and reliable evidence to counsel and the court or tribunal in simple, non-technical English.
Comment: Why is this a particularly good reason? I’ve learned that counsel has obligations with respect to the expert’s report or affidavit. (Ref. 1)
In many cases, counsel must learn about the technical subject to which the evidence relates in order to identify the relevant technical issues. He or she has an important duty in the presentation of technical evidence to ensure it’s properly understood by the court or tribunal. (Ref. 1)
Counsel also has an obligation to monitor the cost of civil litigation in view of the often small to medium size-sized cases in Atlantic Canada – and their sometimes less affluent nature. This is because the extent of an all-stages forensic investigation is often similar regardless of whether the engineering failure or personal injury is small, medium-sized or catastrophic.
Costs can be controlled to some extent by how an expert is retained and how early. There are at least eight (8) different ways. (Ref. 2)
It’s difficult for counsel to carry out their obligations to the court or tribunal and also monitor costs without having some understanding of how engineers do their work.
Reason #2 I also want to help readers understand why a forensic engineering investigation can be expensive.
Comment: The expense has everything to do with carrying out a thorough investigation and rendering a reliable opinion, as expected of the expert by the court or tribunal. For certain, following routine investigative procedures in an effort to ensure no stone is left unturned. (Ref. 3)
As well, we don’t know when we start what we’re going to find that we must investigate. Every failure and accident is different. (Refs 4, 5 and 6) And then there are the surprise, follow-up investigations. Not enough time and money is no excuse if we miss something.
Counsel can assist – with some understanding of forensic work – by identifying and selecting the relevant technical issues early in the case with the assistance of the expert. Then having the expert focus on these in an effort to control costs.
Reason #3 To help counsel understand the importance of retaining an expert early in all cases, affluent and less affluent alike, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential case are being assessed. (Refs 7, 8)
Comment: At present, experts are too often retained months or years after a case is taken and after the cost of the forensic investigation has been estimated by other than the expert. This contrary to the advice of some of the most senior members of the legal profession. (Ref. 9)
For example, I was retained by counsel 11 years after a personal injury. I visually examined the site and reported on what could have been done to prevent the accident. The case settled four (4) months later. To give counsel credit, he carefully instructed me on the technical issues to investigate which reduced the cost in this case. This type of instruction doesn’t happen very often.
Reason #4 To help the justice system understand what they should be getting for the money spent on forensic investigation: That is, thorough investigations to ensure the quality of the evidence and the reliability of an expert’s opinion, and well written reports.
Comment: Rules governing experts have placed greater emphasis on the investigation and the expert’s report, to encourage the settlement of cases without going to discovery and trial. There are excellent guidelines on forensic investigation and also on writing expert’s reports. And excellent books, in general, on writing well. I’m not sure these are being consulted to the extent they should.
Reason #5 I want to understand the forensic engineering field better myself, to learn by writing the blogs and “thinking on paper” – particularly, on how addressing the technical issues supports the resolution of disputes.
Comment: Like all of us, I’m learning all the time. Most recently about the value of low cost, initial hypotheses on the cause of problems based on very limited data. This task could save counsel money – as long as it’s remembered they are initial hypotheses.
For example, I hypothesized with considerable confidence on the cause of a catastrophic bridge failure during construction (Edmonton) – based on study of photographs in a newspaper. In another, the cause of the sloping, sagging floors in a multi-story building (Halifax) – based on a visual examination of the floors and knowing how buildings are constructed.
Cases are also being settled today based on simple verbal reports after the technical issues are addressed. In some cases not even a verbal report because counsel is on site and sees the results of the expert’s investigation unfold before him.
Reason #6 I want to increase my understanding of the civil litigation process.
Comment: Experts have a duty to acquire some understanding of the process. The justice system expects this of us.
I researched and posted 10 blogs on the role of a professional engineer in the civil litigation process for the benefit of counsel and their clients. (Ref. 8) I learned a lot during this research.
It’s also been an eye-opener to learn of the dichotomy between the claimant’s right to justice and the expense of getting it. Associated is the conflicting interests of the different parties to the process.
For example, the court, while encouraging counsel to expedite cases and control costs, wants quality evidence and a reliable opinion, which takes time and money. The expert needs to do thorough investigative work to get this evidence. He expects to get paid according to his schedule of fees, his level of expertise and the responsibility he bears. If the claimant has retained the expert on a fee basis, he doesn’t want to spend any more than necessary. If counsel has taken the case on a contingency basis and retained the expert, he wants to protect the worth of the file to his firm. Quite a mix of interests.
Reason #7 Because of a sense of obligation to my readers who have seen the blog for four years and perhaps have come to expect it – to fill a void that was there.
Comment: Feed back suggests you do get something from my descriptions of the nature and methods of forensic engineering, and my comments on related matters.
A senior lawyer in Atlantic Canada said, “I love that stuff..!!”. Another senior legal chap on the east coast commented, “…like reading them.” And an insurance claims consultant said, “I read every one”. It’s hard to beat testimonials like that.
Two senior counsel helped me with two of the blogs on the role of professional engineers in the civil litigation process – critiqued them before their posting. One of these noted that experts are invaluable to civil litigation.
A fellow who blogs on business ethics, Dr. Chris MacDonald, Toronto, and has an international reputation in his field – he’s on a list of 100 influential business people that includes Barack Obama – saw fit to advise his twitter followers of my blog.
A monthly periodical on engineering construction – with an international distribution of 10,000, sought permission to publish one of my blogs. The issue had a forensic engineering theme. Then they came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.
In four years, I`ve only had about 10 readers request removal from my distribution list. This because they were retired or the subject did not relate to their field of practice.
Overall, quite a good reception – suggesting there was a void, and that I`m making a contribution to the civil litigation process and to insurance claims management.
Reason #8 For that satisfied feeling that comes from creating something – a piece of literature that did not exist before
Comment: A few months after I started blogging in June, 2012, I noticed a feeling of satisfaction after posting an item, a mild elation. It was subtle but there. On reflection, I realized I felt good because I had created something – a piece of literature that didn’t exist until I put pen to paper. So, I blog for that satisfied, creative feeling. You all know how elusive that feeling is in our busy work-life, balance-challenged lives.
On further reflection, I realized the feeling was also about finally publishing information on a topic or technical issue useful to my readers – finally letting it go. I like my blogs to be as clear and well written as possible – in a sense, like well written, mini, expert reports.
References
- The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014
- Peer review costs can be controlled. Posted January 22, 2016
- Steps in the forensic engineering investigative process with an appendix on cost. Posted July 15, 2013
- What do forensic engineers investigate in Atlantic Canada. Posted October 9, 2014
- Forensic engineering practice in Eastern Canada. Posted May 7, 2015
- How many ways can a building fail and possibly result in civil litigation or an insurance claim? Posted July 10, 2014
- The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012
- A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts. Posted November 20, 2013
- Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell