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