I updated the Principles after being contacted by a Toronto firm about a slip and fall accident. The question came up about being retained on contingency. The contact said they do this when the injured party may have a claim but no money to pursue their rights. He also thought the claim would settle within a year. I told him I couldn’t do this.

The chap was pleasant but I thought later, after he remarked he was acting for a partner in the firm, that he may have been a more junior member of the firm and just didn’t know: Experts don’t take cases on contingency, and slip and fall cases typically take more than a year to settle.

Common law requires that experts: (Ref. 1)

1. Be independent from the parties that retain them
2. Provide objective, unbiased opinion evidence in relation only to matters within their expertise, and,
3. Avoid assuming the role of advocate for the parties that retain them

These requirements are the same in all issues involving dispute resolution and claim settlement. The great majority of experts know that they serve the process, as found in a pilot study of 152 Canadian experts, not the party who retained them. (Ref. 2)

The requirements also mean that an expert must engage on a fee basis not on a contingency basis.

But, to be absolutely sure that there wasn’t another school of thought out there on experts and contingency I contacted the head of another Toronto law firm. I haven’t been answered – slammed would be more correct – as quickly as in this case: “Absolutely not!”.

After all this, I thought, I better update the Principles to be sure it’s clear when managing cost that experts are not retained on a contingency basis.

You can read the updated Principles at http://www.ericjorden.com/blog/2019/07/30/principles-governing-the-cost-control-of-dispute-resolution-and-claim-settlement-involving-experts/ as originally posted on July 30, 2019.

References

1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
2. Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018

Appendix

1. Jorden, Eric E., Consulting professional engineer; forensic engineer, Geotechnology Ltd., Halifax, Principles Governing the Cost Control of Dispute Resolution and Claim Settlement Involving Experts, presented at the Expert Witness Forum East, Toronto, February, 2018

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada September 23, 2020. ejorden@eastlink.ca)   

There’s an argument for getting on site and doing a visual assessment before COVID-19 returns. There is talk of a second wave. I thought this when I was thinking of getting up to New Brunswick to visit friends before I get COVID-19-stayed in Halifax for the winter.

There’s no question about the value of virtual site assessments as I noted recently. (Refs 1, 2) Studying emailed documents and photographs of a site and getting a lot of data without leaving the office. Including the cause of a slip and fall accident that stared me in the face recently. (Ref. 1)

But, the worth of an on-scene visual assessment has been well understood for decades – if it can be done safely. Pre, second-wave COVID-19 would be safe. (Ref. 3)

Getting on site would give us:

• additional photographs to those in the documents,
• aerial video – pre-planned with a virtual drone flight (Ref. 4),
• accurate measurements,
• re-enactment of a slip and fall accident, if that’s the issue,
• a forensic engineer calibrated to the site (Ref. 5), and,
• more hard data for continued virtual site assessment back in the office.

In many cases, a forensic investigation unfolding in this conventional way – document study then an on-site visual assessment – often points to the cause of a problem and those responsible. And often, as well, to how an insurance claim might unfold or whether a civil case should be filed. Additional intrusive investigation at the scene is sometimes needed but not always.

So, what are we waiting for? If a second COVID-19 wave is in the wings ready to wash over us, and we quickly visit friends in the Atlantic bubble to get ahead of it, why aren’t we quickly doing an on-site visual assessment?

References

1. What can you get from a virtual visual examination of an accident scene? Posted August 28, 2020 2.
2. COVID-19 and forensic engineering investigation. Posted May 7, 2020
3. COVID-19 and an initial forensic task a.k.a a visual site assessment, sans social distancing. Posted June 1, 2020
4. It’s here, cost effective, efficient aerial video for forensic investigation! Posted October 8, 2019
5. Can you “calibrate” a forensic expert? Posted June 23, 2020