The main difference? You know where you’re going when you work on a project whereas the end result of a forensic investigation is a mystery. Particularly if you follow-the-evidence.

A project is all the work you do one time. Whether it’s designing a bridge, building a garden, or creating a web page, every project produces an outcome and every project has a beginning and an end. (Ref. 1)

It’s a one-time job that has a definite starting point, end point, a clearly defined scope of work, a budget, and is multi-task in nature. (Ref. 2)

The Project Management Institute puts it still another way, “A temporary endeavor undertaken to create a unique product or service”. (Ref. 3)

For example, engineers apply science and mathematics in the use of materials to design and construct a project useful to people. Materials like steel, concrete, wood, plastic, water, soil and rock for a bridge.

When something goes wrong during the project or afterwards engineers carry out a forensic investigation to determine the cause. This would include personal injury accidents. (Ref. 4)

Projects and forensic investigations both involve carrying out a number of tasks. However, where the tasks forming a project are well known at the start, those for a for a forensic investigation are only approximately known.

These tasks are identified accurately in a “Work Breakdown Structure (WBS)” for a project. A WBS is a simple list of tasks. A similar list can be prepared for a forensic investigation but is approximate particularly for a difficult investigation.

Similar issues exist when estimating costs. They are (very) approximately known at the start of a project, (a little) better known in the middle and (accurately) accurately known at the end. Factor in the parenthetic expressions for a forensic investigation.

I thought to comment on these similarities and differences when I realized a WBS would be useful in forensic investigation. Then it struck me I must be careful comparing a project to a forensic investigation lest the latter take on a commercial ring. There’s nothing commercial about determining the cause of a failure or accident to facilitate dispute resolution even when it involves a commercial building.

References

1. Verzuh, Eric, The Fast Forward MBA in Project Management, Wiley and Sons 1999
2. Lewis, James P., Project Planning, Scheduling & Control, 3rd edition McGraw Hill 2001
3. Meredith, Jack R. and Mantel, Jr., Samuel J., Project Management, a Managerial Approach 4th edition Wiley and Sons 2000
4. What is forensic engineering? Posted September 28, 2021 and November 20, 2012

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, April 30, 2022. ejorden@eastlink.ca)   

I see that Discovery is the theme for the Atlantic Provinces Trial Lawyers Association (APTLA) conference this June 10th and 11th in St. Andrews, NB. Specifically, The Art and Science of Discovery Examinations.

I don’t see much in the conference on mistakes expert witnesses make and how to avoid them. Yet there are a lot of them and I’m certain this will get attention at the conference. To be fair, nor have I seen a detailed outline of what the speakers plan to cover.

One source I studied identifies 220 mistakes based on research of the literature. A further 158 were suggested by trial lawyers, jury consultants and well known experts who were canvassed – 378 mistakes in total! On reading this material, I know I could add a few based on what I’ve seen over the years. I’m certain my colleagues in forensic work could as well. How about an expert taking a file on contingency?

A review of guidelines on expert report writing is certain to highlight more mistakes. There’s a lot of dos and don’ts. I didn’t want to get into overkill with more detailed research; a total of 378 mistakes is enough.

I see in the literature that the 220 mistakes can be partly categorized as follows with a few example mistakes taken from the many. Some mistakes are common, others are quite surprising to me and I’m sure to others:

1. The Expert CV 2 example mistakes out of a total of 23 a) Mistake: Inaccuracies on a CV like misleading information b) Mistake: Listing past cases with results on your CV
2. Web Pages 2 example mistakes out of 19 a) Mistake: Having inconsistent Web CV and paper CV b) Mistake: Listing innumerable areas of expertise
3. Researching, Investigating, Forming and Expressing Opinions 3 mistakes out of 24 a) Mistake: Accepting rush cases that do not permit you to follow your standard protocol b) Mistake: Failing to document your work c) Mistake: Not corroborating facts provided by counsel
4. Report Writing 4 mistakes of 32 a) Mistake: Letting counsel help write your report by sharing a draft with him/her b) Mistake: Basing the report on insufficient data c) Mistake: Using vague terms in the report d) Mistake: Allowing your word processing software to track the changes that you make to your report
5. Depositions 3 mistakes of 31 a) Mistake: Taking notes at the deposition b) Mistake: Answering questions regarding a document you do not have in front of you c) Mistake: Being afraid to say “I don’t know”
6. Direct Testimony 2 example mistakes out of 18 a) Mistake: Using terms that the judge and jurors do not understand b) Mistake: Getting outside your true area of expertise
7. Cross Examination 2 example mistakes out of a total of 23 a) Mistake: Not advocating for your opinion b) Mistake: Giving new opinions on cross examination without careful reflection

There are more categories in the literature about the 220 mistakes but this is enough to illustrate the problem.

The 158 mistakes were presented differently, but with a little effort I’m sure they could be categorized in a similar way.

I believe APTLA are doing Yeoman service for their members in “…taking a deep dive into Discoveries” during the conference. I believe that the first promise during the dive to “…show you how to prepare your client” for Discovery would benefit from knowing about the 378 mistakes experts make.

I’ve dedicated my blog over the past 10 years to enlightening civil litigation lawyers, insurance claims managers and property owner to the nature and methods of forensic work. Drawing attention to the mistakes experts make is in tune with that resolve.

Postscript

I thought on completing this blog that it would be helpful to study the 378 mistakes and identify those I’ve seen in Canada. Perhaps get my colleagues Down East to chip in what they’ve seen. The sources I checked are to U.S. publications and while helpful do not necessarily reflect completely on the situation in Canada.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, April 25, 2022. ejorden@eastlink.ca)