I’ve thought for a while that well written forensic engineering reports are going to take on a greater importance in light of Rule 55 in Nova Scotia and possibly similar rules in other jurisdictions.  And counsel can help get these well written reports by “cross-examining” draft copies (see following).

Not that such reports weren’t important before.  Then, however, counsel had an opportunity in direct and cross-examination to discover the evidence and go through the reasoning if it wasn’t well presented in reports.  But discoveries cost more than well written reports.  And while the cost of reports are difficult to estimate (Ref. 1), the cost of discoveries are more difficult.

I’ve thought recently, after posting a blog on the steps in forensic engineering investigation (Ref. 2), that it should be fairly easy to produce a well written report.  At least to produce the data and evidence gathered during the investigation, minus the analysis and interpretation, and the reasoning to an opinion.

A good report can simply consist of describing what took place chronologically during each step in the forensic engineering investigation.  This would also echo the stepped civil litigation process.  To some extent we think in a sequential, stepped way as well.

Factual reporting

It might even be of interest and advantageous to counsel to request a “factual” report initially – essentially stop the chronological reporting short of the analytical steps.  I’m quite certain I’ve read of this approach being taken occasionally in civil cases in the U.S.  In engineering, it is definitely an approach taken often enough in some disciplines.  For example, the separate “factual” and “interpretative” reports that are requested on the geotechnical engineering investigation of foundation soil conditions at new construction sites.

I know I outlined an approach along these lines as a means of reporting to counsel several years ago when setting up my website (Ref. 3).  I was echoing what I saw and read of being done in forensic engineering at the time.  I noted then three different ways of reporting:

• Verbal summary report
• Written summary report (I would omit the views and opinions today)
• Detailed written report

The results from the easily identifiable steps in forensic engineering investigation – except perhaps for the occurence and nature of the unknown, follow-up investigations, can be reported for each step in a simple, factual format:

• Task
• Purpose of task
• Data/Evidence gathered

You went to the site after reading the documents.  Why did you go to the site?  What did you learn?  You cut the concrete sample apart in the laboratory.  Why did you cut the sample apart; what was the purpose?  What did you learn?

Simple declarative sentences, simple words, and short paragraphs manage this type of basically factual reporting.

When there are a number of different investigations making up the whole this simple, factual format communicates effectively.

Interpretative, analytical reporting

Reporting does get more demanding – and separates the quite literate expert from the boys, when some analysis of the evidence is carried out at each step and tentative conclusions drawn.  And then interpreting, explaining, and presenting the analysis in non-technical terms so that judge, jury, and counsel can understand.  Reporting gets far more demanding when all the data must be pulled together, analysed, and an opinion formulated, and explaining the reasoning underlying the opinion.

Simple declarative sentences, simple words, and short paragraphs can pretty well manage this type of analytical, easily defended reporting as well, if the forensic engineer knows how to write.

Unfortunately, not all experienced engineers know how to write, and there is not a lot of good material and guidelines out there specifically for forensic engineers – we like to examine and measure things, take stuff apart, analyse data, and talk in jargon.

Fortunately, there is a resource for encouraging forensic engineers to take an interest in presenting their data and analyses well.  And counsel can help.  There is a text, “Writing and defending your expert report; the step-by-step guide with models” – 404 pages long, that addresses the topic (Ref. 4).  There is considerable emphasis in the book on producing a report that can be defended under cross-examination at discovery and trial – in the U.S. adversarial system.  I figure if a report can stand up to the U.S. system it is likely to be fairly well written.  Counsel can help by “cross-examining” their expert’s report before accepting them.

References

1. The cost of forensic engineering investigation, posted November 1, 2012
2. Steps in the forensic engineering investigative process, poste October 26, 2012
3. www.ericjorden.com/guidelines
4. Babitsky, Esq., Steven and Mangraviti, Jr., Esq., James J., Writing and defending your expert report; the step-by-step guide with models, SEAK Inc, Falmouth, Massachusetts, 2002