How a party engages a forensic expert affects how well costs are managed.  The best way is easy.  It involves starting early and reporting often.  It also involves learning about the forensic investigative process the same as experts are expected to learn about the judicial process.  Do this and you and your expert will understand one another.  Frequent reporting is essential to effective cost management..

The following summarizes the best way to manage costs:

• Engage an expert early,
• on a simple fee basis,
• with frequent oral reporting
• on the evidence-to-date,
• the cost-to-date,
• the estimated-cost-to-complete, and,
• if required, a written report.

You’ll go through some tasks several times until you’re done.  It’s easy, and cost management proceeds nicely when you follow this routine. The process is commented on as follows:

1. Engaging an expert early can be as simple as talking with one at the merit assessment stage.  You can’t benefit from an expert’s knowledge until you talk with an expert, and the sooner the better.  If nothing else, brief him on the issue and get his off-the-record thoughts.  Most experts don’t mind giving a bit of time to something like this.

Perhaps engage him more formally to read some documents and/or visit the site.  Do this if the two of you perceive technical issues that could impact the dispute or forensic work and would need to be investigated.

Engage early: You really don’t want to take a case or pay out on a policy if the technical issues don’t support the position of the parties involved, or the parties can’t afford the cost of an investigation.  Experts sometimes see embarrassing situations when we’re engaged late.

(You can engage an expert in about eight different ways.  All the way from getting one to briefly give some factual data without analyzing it to retaining an expert to peer review and analyse the work and written report of another expert you retained earlier. (Ref. 1))

An expert can give a preliminary estimate of the cost to investigate the issues based on other forensic work he’s done – a rough order of magnitude of costs if nothing else.

During your initial briefing and talk with an expert you might also get a feel for the evidence that could be found during an investigation and where it might lead..

In a sense, at the merit assessment stage you’ll get your first oral report on

• the evidence-to-date – the experts initial thoughts on this,
• the cost-to-date – the expert’s charges for reading some documents, and
• the estimated-cost-to-complete – the expert’s preliminary estimate of cost to investigate the issue.

before you’ve even decided to get involved in the issue.

While this is going on, you will gain some understanding of the dispute resolution and forensic engineering investigative processes.  There’s more information in the references on the nature of forensic engineering (Ref.2), the steps in the forensic engineering process (Ref. 3) and the difficulty estimating the cost of forensic investigation (Ref. 4).

At the end of the day, engaging an expert early will enable you to engage with him or her only as long as required by the judicial process and the needs of the parties involved in an issue.  And this decision will be based on good evidence.

2. Engaging an expert on a fee basis is the most effective way of managing the cost of dispute resolution and forensic work.  This is because it’s very difficult to estimate the total cost of this work at the merit assessment stage and should not form the basis for retaining an expert. (Ref. 4) The difficulty estimating costs is handled with frequent oral reporting on cost.

Nor should you pay too much attention to dollar-differences between the hourly fees of the experts you might consider engaging.  The fees of experts in Atlantic Canada are similar as they are elsewhere in Canada and in the New England states. (Ref. 5)  The qualifications and experience of the expert are far more important.

3. Get frequent oral reports on everything found at each stage of the dispute resolution or forensic investigation.  There are many stages in these processes and many opportunities to review evidence and cost. (Refs 3 and 6)

Get your expert’s thoughts

• after you brief him at the merit assessment stage,
• then again after he reads some of the documentation,
• after he takes a look at the site,
• studies all of the documentation,
• does some work at the site
• does some laboratory testing,
• after he does some research,
• after he … well, etc., etc.

and on and on for as many of the stages of a forensic investigation or dispute resolution justified by the evidence..

You’ll talk a lot but you’ll manage the cost of the issue well, based on the evidence-found-to-date, the cost-to-date and the estimated-cost-to-complete the investigative process.  When these line up with the requirements of the judicial process and your party’s interests you’ll bring the forensic investigation to a close based on hard evidence – lots of data plus costs.

4. Evidence-to-date

An expert is collecting hard and soft evidence all the time.  He’s

• carrying out standard investigative tasks,
• following leads,
• journalizing and thinking-on-paper,
• developing a time-line of tasks carried out, why he did them and the data and evidence he got, and,
• ever alert to promising side-lines to the time-line,
• analysing the data and evidence,
• drawing tentative conclusions,
• tweaking his hypothesis as to cause and
• inching closer all the time to formulation of an opinion as to cause or the way forward in a dispute.

You can get the expert’s thoughts and the evidence-to-date at many and minute stages of an investigation.

As well, it may not be well known but the probable cause of quite a few different types of failure and accident in the built environment have been identified and published.   Tell an engineering expert what happened and the damage and, based on published material and experience, we can tell you possible causes. (Ref. 7 for example)

5. Cost-to-date

Experts book their time and expenses daily.  You can get cost-to-date whenever you like and as often as you like.

You can get costs at each stage and task of the forensic investigation and dispute resolution, and each stage of the judicial process.  The expert may not have updated evidence at all stages but he’ll have updated costs and expenses on a daily basis.

6. Estimated-cost-to-complete .

You can also get increasingly accurate estimated-cost-to-complete the forensic work whenever you like and as often as you like.

It’s well understood in project and cost management that the further along you are in a process the more accurate the estimated-final-cost.  This is because the more stages of a project or investigation you complete the more information you have for estimating cost and the more accurate the estimate.

7. Get a written report, if required

At this stage of the process, you’ll have lots of information on which to base a decision about getting a written report.  The sooner you decide the easier it is for the expert to estimate the cost of a written report, and the lower the cost .

Leave it for a year and the expert has gone onto other cases and disputes.  He must come back to your file and review the evidence and everything that took place during the investigation before he can plan and write the report.

I solve this problem to some extent by keeping a detailed time-line on What i did, Why I did it, and The data and evidence I got.

***

There is a very simple and effective procedure for managing the cost of dispute resolution and forensic expert services.  The simple, stepped procedure is easy to follow and not high tech by any stretch.  Some of us are engaged in it now and we like it, and our clients do too.

It starts by

• engaging an expert early,
• going through the simple steps as itemized and commented on in this blog, and
• frequent oral reporting.

It ends when you decide, based on good evidence and the cost-to-date, that the requirements of the judicial process and the parties involved have been met.

The procedure is based on well developed, decades old project management methods..  These methods can be applied to dispute resolution and expert services as shown in this blog.

References

1. How to retain an expert in a cost effective way. Posted November 30, 2018
2. What is forensic engineering? Posted November 30, 2012
3. Steps in the forensic engineering investigative process with an appendix on costs.  Posted July 15, 2013
4. Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2013
5. An expert’s fees and forensic engineering investigation.  Posted July 5, 2016
6. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
7. How many ways can a building fail, and possibly result in civil litigation or an insurance claim?  Posted July 10, 2014

I can’t help but wonder what’s in store for the parties involved in high-tech, sensor-dense, autonomous car accidents.  Compound my wonder with new drivers whose training did not include winter road conditions.  Car dashboards are pretty with all those control lights but I wonder if they instill overconfidence.

(Autonomous cars – cars that drive themselves.  You just sit there and monitor the sensors)

How bad is it?  A friend drives a five year old Honda Accord that has sensors to indicate how close he is to an object when backing up.  We tested and the sensor incorrectly indicated he was about twice as far from my car as measured – 0.5 metres compared to an actual 0.25 metres.

Those sensors from a lower-tech age are quite simple.  What about others designed to keep you from drifting over the line and into the next lane?  The sensing cameras work well when you can see the lines but what about when the lines are covered with snow or dirt?  What about that distracting, warning Ping! Ping! when you’re trying to avoid potholes or drive just off the noisy track worn in the pavement over the years?

What about those braking sensors when you get too close to the car in front?  I’m scared to think what happens when they malfunction..

We’re in high-tech transition and accidents will happen like they did when air bags and seat belts first came out.  They’re reliable now but they weren’t at the start.  I wonder about the reliability of the sensors on today’s high-tech cars..

I thought these questions during a recent meeting of CATAIR, the Canadian Association of Technical Accident Investigators and Reconstructionists.  CATAIR is an association of serving and former police officers, consulting professional engineers and others who figure out how motor vehicle accidents happen.

We got together a few days ago in Moncton, New Brunswick.  We were there for a regular meeting with an agenda that included identifying training courses for the national meeting in Halifax in August, also for a talk by Ed. Goodfellow on drugs and driving.  Ed is Chairman of CATAIR for the Atlantic Region.

CATAIR arranges courses for its members on the reconstruction of traffic accidents.  New courses are sought or developed, or existing courses refined for reconstruction involving high-tech car accidents.  There is a learning curve associated with the refined methods.

I also believe time must pass and data collected to optimize the accuracy of the methods.  The methods are somewhat empirical – based on testing and experience   They rely for their increasing accuracy on test data from investigations – data that is still coming in.  The test data is used to refine the methods.

Some of the technology on new cars is quite advanced so the data for refining accident reconstruction methods must be limited to some extent, like that for airbags and seat belts at the start.

I can’t help but wonder about the increasingly complex disputes and claims that are surely resulting as cars add more sensors.  And the questions that might be raised about the accuracy of the expert’s methods.

Bibliography

1. Reade, M. W. (Mike) and Becker, T. L. (Tony), Fundamentals of Pedestrian/Cyclist Traffic Crash Reconstruction, Institute of Police Technology and Management (IPTM), Jacksonville, FL 2016
2. Civil litigation, forensic engineering and motor vehicle accident reconstruction.  Published September 22, 2015
3. Is your traffic accident investigator well trained, experienced and “accredited”?  Published February 23, 2016
4. “Seeing is believing” at a meeting of traffic accident investigators.  Published March 4, 2016
5. If you  can measure it you can manage it, even if it’s a real mess like a car or truck accident.  Published June 23,, 2016
6. Forensic assessment of traffic accidents.  Published October 26, 2016

I was struck recently by the different ways experts engage with the parties to a dispute or those needing a forensic investigation.  I counted eight (8) different ways in comments by experts I consulted.  Some good and conforming to well regarded project management practices, others not so much.  How an expert is engaged affects how well costs are managed.

(See a list in the Appendix of the different parties that could be involved in a dispute or forensic investigation)

Seeing how it’s done now drove home the need for principles governing the cost management of dispute resolution and forensic investigation involving experts.  I’m identifying these principles and will post them later.

Early last month I sent a draft of the principles to experts and practitioners in different fields and asked them to review it.  These people included colleagues in engineering, traffic accident investigators, several civil litigation lawyers, a town planner and a published author.  I got good comments and suggestions and I’m incorporating these where relevant.

The reviewers’ comments indicated several ways experts engage with the parties to a dispute.  I’ve listed these below.  The methods vary from project management techniques, as characterized by frequent reporting of cost-to-date and estimated cost-to-complete, to methods that risk the expert being perceived as agreeing to a fixed price for his services. There’s not a lot of order to the following list and I’m sure it’s not exhaustive – it’s just an indication of how experts engage with clients in Atlantic Canada::

1. Fee basis after the retaining party briefs the expert, the expert reads the documents and then estimates the cost of the forensic investigation.  Frequent updates on current costs and estimated cost-to-complete.
2. Fee basis.  No reporting.  No cost estimate.
3. Engage for the budget set by the retaining party, after learning the budget and the party’s theory of the case.
4. Fee basis if the client has taken the case on a fee basis.  Declines the commission if the client has taken the case on a contingency basis.
5. Fee basis and frequent oral reporting to the party on the findings at successive stages of the forensic investigation, and after being instructed by the party to carry out each stage of the investigation.
6. Fee basis after all investigation is complete and all damage repair and remediation is done and all costs accurately known.
7. Fee basis for preliminary investigation like reading documents and a visual examination of the failure or accident site sufficient to estimate costs for subsequent stages.  Then do successive stages as directed by the retaining party.
8. Fee basis plus frequent reporting of current and estimated future costs.

This list begs the question:

• Why the parties to a dispute or forensic investigation don’t engage with an expert early,
• on a simple fee basis,
• with frequent reporting of the evidence-found-to-date,
• the cost-to-date, and
• the estimated cost-to-complete?

If how an expert is engaged affects the cost of dispute resolution and forensic work then the bulleted procedure is effective – engage an expert early and get frequent oral reports on everything.  And engage an expert only as long as required by the judicial process and the needs of the party.

Appendix

Parties to a dispute or a forensic investigation can include one or more of the following::

1. Advocates and civil litigation lawyers
2. Insurance company representatives
3. Claims managers and consultants
4. Insurance adjusters
5. Owners of damaged property
6. Builders and contractors
7. People injured in accidents in the built and natural environments