“An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 1)  And, I might add, turn rebutting the report prior to discovery into a cakewalk.

Today, with the greatly increased emphasis on the expert’s report – see blog posted May 1, technical evidence is presented and responded to quickly and clearly by all parties unencumbered by the discovery process.

Today, you must retain an expert who has two basic skills, in addition to the motherhood requirements of appropriate education and experience:

• Skilled investigating the cause of the engineering failure or accident
• Skilled in presenting investigative findings in a well-written report

The chances that your expert will be cross-examined is getting close to almost negligible, and, if they are, it will be easier – if they have a well-written report.

“Guidelines” on writing reports have been around a long time.  There’s always a chapter on writing reports in the books on forensic engineering, science, and expert witnessing.  I’ve read a few of these books and, generally, I’m not impressed with the report writing sections.  Not even those published by our learned associations. (Ref. 2, 3)

They differ in how they guide, for one thing.  Many would not meet the requirements of civil procedure rules in eastern Canada, like Rule 55 in Nova Scotia.

And, almost without exception, there is no comment on the sorting, synthesizing, and analysing of the data from a forensic investigation, the drawing of well-supported conclusions, and the formation of an opinion.  Unquestionably, as important a task as collecting the data.  There are some but they are few. (Ref. 4, 5)

Your expert must be able to present the findings of their forensic investigation in a well-written report.  That’s not always being done.  Yet, it’s critical today.  There’s help.

Three experienced trial lawyers in the U.S. – James Mangraviti, and his co-authors, Steve Babitsky and Nadine Donovan, have addressed this problem in great depth.  Their quite massive 560 page, 11.25″ x 9.0″ x 1.25″ text goes into considerable detail on all aspects of expert report writing. (Ref. 1)

How to Write an Expert Witness Report was published this winter, 2014.  It includes many well developed check lists, typical well-written reports for common forensic investigations, and executive summaries.  One long summary for the entire book and one at the start of each of the 14 chapters.  I find the check lists and executive summaries particularly valuable.  Also the 20 pages of “Advice from the Trenches” – comments on drafting expert reports by different experts throughout the U.S.

You can see the book’s contents at www.seak.com  It is similar to another they published in 2002, Writing and Defending Your Expert Report, but much more comprehensive. (Ref. 6)

The recent text is based on the authors’ experiences as trial lawyers, review of discovery and trial transcripts, the response to their earlier book, and suggestions from specialists in many fields.

I’ve used their older text for years and the check lists and summaries there and now use the new one.  I actually recommended some time ago to readers of my blog to give a copy of the older text to their experts.  I now recommend giving the updated book.

Mangraviti et al’s text takes the guidelines on how to write an expert report – and a rebuttal report, for that matter, to a whole new level.  There is no excuse for anything less than a well-written report going to counsel and the justice system on the cause of a failure or accident.  In view of the increased emphasis on the expert’s report, it’s imperative that guidelines like these be followed if the truth of a matter is to come out.

References

1. Mangraviti, James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc., Falmouth, MA 2014
2. Lewis, Gary L. ed, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003
3. ASCE, Guidelines for Failure Investigation, 1989
4. Toulmin, Stephen E., The Uses of Argument, Cambridge University Press, 2003
5. Noon, Randall, Introduction to Forensic Engineering, CRC Press, Inc., Boca Raton, Florida, 1992
6. Babitsky, Steven, and Mangraviti, James J., Writing and Defending Your Expert Report, SEAK, Inc., Falmouth, MA 2002

The way in which experts are used in civil litigation is changing, at least the main emphasis of their role in the civil litigation process.  And these changes are good for counsel and the justice system.

The role of experts in the civil litigation process has been identified in detail in previous postings. (Ref. 1)

Emphasis today

The emphasis today is on (1) the presentation of findings in oral and written reports after a forensic investigation is complete, rather than on testimony in discovery or at trial.  And I believe there will be increased emphasis on (2) oral reports – certainly for smaller cases, rather than on written reports.

How experts can be retained

In Canada and the U.S., experts can be retained in one of two basic ways:

• Consulting expert
• Testifying expert

Comments by some lawyers I have worked with suggest these two types of arrangement are understood in eastern Canada.

Based on my experience in this part of Canada, these two methods of retaining an expert can be broken down further:

1. Consulting expert and technical advisor to counsel
2. Investigating expert: – Oral report
3. Investigating expert: – Written report
4. Testifying expert; ADR, discovery, trial
5. Consulting expert to the judge

The break down reflects and accommodates the changes taking place.

Why the changes in emphasis are good

These changes are good for counsel and the justice system, and the cost effective settling of disputes.  This is because:

• Counsel will take cases with greater confidence in their client’s position
• Counsel will be able to monitor costs more easily
• Experts will be retained for their skill presenting their investigative findings in well written reports – not just for their skill investigating the cause of a failure or accident
• A more cost effective level of forensic investigation will be carried out
• The technical findings will go forward more readily, unencumbered by the direct and cross-examination process

What’s causing these changes?

These changes in how experts are used is being driven by:

• Civil procedure rule changes such as Rule 55 in Nova Scotia
• Recognition that the majority of cases involve claims that are small rather than large – fortunately, we don’t have catastrophic engineering failures and terrible accidents very often
• Recognition that the thoroughness – and hence cost, of forensic investigations is not greatly different regardless the value of the claim.  Small claim or large, we must go through fairly standard investigative steps
• The fact that the great majority of cases are settled out of court – I’ve seen reported as many as 95% to 97%, and this certain to go higher in light of the rule changes, and,

Comments on how experts can be retained

Following are a few comments on how experts are being retained today for the good of the justice system:

1. Consulting expert

Counsel might initially retain an expert for a general discussion of the case and the technical issues as initially perceived by each.

Such a discussion could be quite brief and based on counsel’s description of the incident.  Or of greater length depending on where counsel is at in the civil litigation process. (Ref. 1)

Lengthier discussion would be based on some investigation by an expert.  The investigative tasks would depend to some extent on the role assigned the expert. (Ref. 1)  At the very least, an expert would read a few documents and visit the site.

The very early emphasis in such discussions should be to provide counsel with technical information to help him or her assess whether or not to take the case. (Ref. 2)

Also, some emphasis on the expert’s early thought on the direction a forensic investigation might lead, with respect to the cause of a failure or accident.  Sometimes we have an idea early on – a hypothesis as to cause, that would be checked later during a forensic investigation.

It’s often possible in these discussions to outline the approximate nature of a forensic investigation of the problem.

Very approximate costs to investigate the cause of a failure or accident might be suggested based on the expert’s experience with other cases.  At the very least, advice could be given on whether it’s likely to be an expensive or an inexpensive investigation or somewhere in between.

If counsel takes the case, the expert could provide some guidance on preparing a statement of claim or defense. (Ref. 1)  This involvement is important.  I’ve seen cases where, based on the technical issues, the wrong party was named in one instance and responsible parties were not named in two others.  I was retained some time after these actions were started – years after in one case.

The next two ways of retaining an expert must be evaluated carefully, particularly, in going from an oral report to a written report.  “An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 3)  And, I might add, turn rebutting the report before discovery into a cakewalk.

An argument can be made, and serious consideration given, for peer review of a written report. (Ref. 4)  This is standard practice in some engineering and scientific fields.

2. Investigating expert: Oral report

Based on the results of the initial discussions, counsel may instruct a consulting expert to begin investigating the cause of the failure or accident.  To begin the forensic engineering investigative process. (Ref. 1)

The objective would be to gather some data to support an oral report of findings to counsel.

An oral report allows for additional discussion of the case.  It also gives counsel data on which to base a decision to carry out a complete forensic investigation.  And some data on which to base a decision to commission a written report.

There is emphasis at this stage on some data.  This is because the expert would report to counsel as soon as relevant and meaningful data had been collected.  He would not necessarily wait until the end of a complete forensic investigation.

The expert’s work at this point is very likely to be characterized by preliminary investigative work.  Also possibly by a factual reporting of data with little or no interpretative reporting.  This type of reporting is used often enough in some fields, e.g., geotechnical engineering.

Some of the necessary preliminary work might be identified in discussion during the Consulting Expert stage.  For certain, the expert would recognize when he had some useful data justifying interrupting the investigation and reporting to counsel.

But it’s also possible the investigation will have been completed before significant data became available.  Or this was considered the most expedient way – to complete the forensic investigation and gather all data before reporting.

Even if the investigation was completed, only an oral report would be given at this stage as required by counsel.

The oral report, in addition to facilitating additional discussion of the case, also allows counsel to assess if it’s in the client’s interest to incur the cost of completing the forensic investigation and preparing a written report.

3. Investigating expert: Written report

Counsel could retain the consultant to prepare a written report on the forensic investigation according to the requirements of civil procedure rules governing experts.  The report would describe the forensic investigation in detail, the data gathered, the analysis carried out, the conclusions and the reasoning leading to these, and the opinion on cause stated.

The forensic investigation would be completed before preparing a written report if this was not done for the oral report stage.

The report would likely be distributed to all parties to the action.  This would in turn generate a number of questions on the report by the different parties to be answered by the expert.  It could also result in a rebuttal report which might need to be responded to by the expert as well.

4. Testifying expert

In the unlikely event that the action goes to discovery and trial a consulting expert might be required to testify on his investigation and subsequently be cross-examined on his testimony and report.

In some areas of Canada and the U.S., a testifying expert is retained in addition to an investigating expert.  The testifying expert would present the investigating expert’s work and findings at discovery and trial.  Testifying is a skill some investigating experts have and some don`t, hence the need.  I can imagine this would be for larger cases.  Forensic engineering investigation in eastern Canada is characterized by many smaller cases.

5. Consulting expert to the judge

The judge might retain an expert independent of counsel.  This is done occasionally in eastern Canada.  I understand it`s quite prevalent in the U.K.  I believe this is likely to occur less frequently with fewer cases going to trial.  Also because of the change in emphasis in how experts are retained.  And the fact that particularly well-written expert reports will derive from the changes.

References

1. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts. Posted November 20, 2013 http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/

2. The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012 http://www.ericjorden.com/blog/2012/06/26/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case/

3. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report,  SEAK Inc., Falmouth, Mass. 2014

4. Peer review in forensic engineering and civil litigation. Posted November 26, 2013 http://www.ericjorden.com/blog/2013/11/26/peer-review-in-forensic-engineering-and-civil-litigation/

…as exclaimed by counsel – a “wordsmith”, in referring to the practice of law.  We were on site where I was taking a briefing on a problem as experienced by the property owner.

To which I might have added in referring to the practice of engineering, “Numbers! Numbers! Numbers!

The exchange reminded me of a paper I read a few years ago entitled, “The Fundamental Differences Between Science and Law”.  It was written by Robert A. Bohrer, both a professor and a practitioner of law.

The paper appeared in the book, “Expert Witnessing: Explaining and Understanding Science” (Ref. 1).  It’s a very good read, one of the better texts on forensic work that I’ve seen.  You’re certain to find it interesting

The book was written for “…scientists, engineers, physicians, judges, litigators and those who work in contact with the courts”.  It was in response to the “…notorious communication problems between science and the courts” as recognized by both. The book contains papers from 14 noted authors from all walks of life in science, applied science, and law.

In his paper, Professor Bohrer attempts to describe the difficulty of incorporating science into legal decision making.  He does this by describing the three basic differences between the world of science and the world of law:

• Science is digital, replicable/general, and objective/universal;
• Law is analogical, unpredictable/particular, and normative/contingent.

I won’t attempt to précis the paper but “digital” resonates with me – like in “numbers”.   Engineers measure and quantify things with numbers and use numerical methods to analyse the cause of failures and accidents.

If you can measure it you can manage it. (Ref. 2)  And you can measure most things in some way or another.  Including cost control in civil litigation. (Ref. 3)

At its most basic an engineer might simply “take the measure” of something with an experienced eye – and a tape measure would be nowhere in sight.  But not often because we like to measure and test things.

The importance of measurement in science and engineering is echoed in a number of papers in the book.  One on epidemiology recognizes that, “The concepts of measurement and uncertainty, of error and of chance are fundamental to science”.

“Objective” in the differences above also jumps out at me, as required of experts by Nova Scotia civil procedure Rule 55.  The word does conjure up the idea of measuring and testing (Ref. 4) but also more abstract concepts best described by words and wordsmiths.  As such, it’s perhaps a tiny bridge over the communication problems between science and the courts.

References 

1. Meyer, Carl, ed, Expert Witnessing: Explaining and Understanding Science, CRC Press LLC 1999
2. Personal communication, Osmond, Jack, Affinity Contracting, Halifax
3. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013 http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/
4. Using SOAP notes in forensic engineering investigation.  Posted February 6, 2014

I see making SOAP notes (Subjective Objective Assessment Plan) as a way for all of us, regardless of our field of practice, including law, to organize our notes on an investigation.  We would record our notes in the following format at each stage of an investigation.  I believe we would carry out more thorough, objective, and reliable investigations as a result, and communicate more effectively with others:

• Gather, sort, and categorize subjective(S) and objective(O) information and data on an issue.
• Next, analyse, assess(A), and interpret the evidence implicit in the data and relevant to the issue.
• Then develop a plan(P) based on the assessment to address the issue.
• Finally, document what you did in the manner you did it – the SOAP outline, for reliable communication to others.  Including yourself at a later stage in an investigation.

In the health care fields, where it first developed in the ’70s, this style of documentation is used to standardize entries made in clinical records.  This format is followed to facilitate improved communication among all those involved in caring for a patient or client and to display the data, assessment, problems, and plans in an organized way.

The process is followed in medicine – both human and veterinary, pharmacy, nursing, counselling, therapy, athletic training, etc.  In fact, it’s written into the standard of practice for pharmacists.  And I’m sure in other fields as well.  The SOAP process is sufficiently widely adopted that templates can now be purchased.

It can be applied in all fields of applied science, including forensic engineering.  I`m certain it can be applied in the practice of law.

I thought of this process – rather excitedly, I must admit, and it’s relevance to forensic engineering investigation when a vet friend for whom I was doing some engineering work mentioned it as we discussed his problem.  That triggered a memory of one of my daughters mentioning it years ago when she was first introduced to the process in vet school in the late `80s..

I quickly realized I do this in engineering investigation, make and document this kind of assessment, but it doesn’t carry a label like this – SOAP.  I guess we in engineering just get on with doing it and don’t bother with too many labels and acronyms.  Gather data, sort it as to subjective and objective, assess the data, formulate a hypothesis (a diagnosis in medicine), then plan an investigation to test the hypothesis (a treatment to – in a sense, test the diagnosis).

An important element is that SOAP notes are made during each stage of a person’s treatment.  The standardized process improves communication and reduces  misunderstanding between the different specialties involved at the different stages.

Also, as treatment progresses the data becomes more objective, more quantitative, and more in the nature of test results.  There is less focus on the Subjective part of a note.

Applied to forensic engineering SOAP notes might develop like this:

1. Gather subjective data together and write the Subjective Part (S)

This is information that counsel and the client report directly to the expert in a briefing.  It is largely narrative and qualitative in nature, and not necessarily factual in an engineering sense.  It should include the history of the problem or failure – set out in a comprehensive timeline, and details about the damage experienced by the property owner or accident victim.  The history is an important part of the subjective part of a SOAP note.

In sorting information for this part of the note you would carefully identify all data that is subjective in nature.  Separate out any that might happen to be objective and include in the next part.   

2. Gather objective data together and write the Objective Part (O)

This part of a SOAP note is more quantitative in nature,  It consists, in the early stages of a forensic investigation, of notes on data gleaned from documents provided by counsel.  Also the forensic engineer’s observations during a visual examination of the failure or accident site.

During later stages of an investigation this part would include notes on field and laboratory test results and what was found during follow-up investigations.

3. Carry out and record the Assessment (A)

All data would be analysed at this point and the likely cause – or revised hypothesis during a later stage of an investigation, is identified and recorded in this part of a note.  How the cause was arrived at would also be noted – the reasoning that led to an identification of the cause.

Other possible causes arising from the assessment could be listed too, from most likely to least likely.

The assessment may also identify additional tests and investigations that should be done.  These would also be recorded in the assessment part of a SOAP note.

4. Write a Plan (P)

In forensic engineering – from the beginning and during each stage, this part would record notes on the investigation(s) that would be carried out to confirm, modify, or refute the most likely hypothesis of the cause of a failure or accident.

In medicine, notes would be made on the treatment plan for the most likely diagnosis of the patient’s condition.

Regardless the field of practice, the plan might be revised several times from the beginning through the various stages of an investigation and notes made about a plan at each stage.  SOAP notes made of the subjective(S) and objective(O) data gathered at each stage, the assessment(A) carried out, and the revised plan(P) noted.

Sources

I Googled “SOAP notes” to learn about this style of documentation and then considered based on my experience how the process is inherent in forensic engineering investigation.

New way of taking forensic photographs 

We know in forensic engineering that a good picture is worth a lot.  For that reason we take many photographs and videos during our investigations.  And we’re alert to new ways of taking pictures of a failure or accident site.

(See interesting pictures below, if you wish to jump ahead in this short item, but come back and read the posting).

We also study existing aerial photographs when the ground in the vicinity of a failure or accident might figure in the cause.  It’s called ‘terrain analysis’ in engineering and it’s very useful.  We look at the topographic maps made from these photographs as well.

But aerial and satellite photographs are taken from 1000s of feet in the air and detail is lacking for the smaller, more compact sites typical of most failures and accidents.  This is also pretty well the case when you hire a small plane or helicopter and take photographs from the air.  You can get pictures from a lower altitude this way but there are restrictions on how low a plane can fly over a built-up area.

I’ve attempted to overcome this by taking photographs from the bucket of a boom truck hired for the purpose.  For example, I did this during my investigation of the John Morris Rankin fatal car accident.  I’ve also taken photographs of sites from the upper floors and roofs of nearby buildings and from the buckets of backhoes and excavators raised – with me in it, for the purpose.  But these photographs are oblique rather than at times preferably vertical, and also quite low level.  Pictures from a little greater altitude would be nice.

Imagine my interest when I chanced to meet a chap last fall in a park who was flying and taking aerial photographs with a small helicopter about one and a half to two feet in size.  It was a model, multi-rotor helicopter, a ‘quadcopter’ operated and flown remotely from the ground.  A quadcopter has four rotors.  These aircraft also come with six or eight rotors.  The more rotors the greater the stability of the ‘copter.

The quadcopter was fitted with two cameras for taking oblique and vertical photographs, 100, 200, and, I understand, up to a 1000 feet above a site.  Robert Guertin, the operator, is a professional photographer perfecting this technique.  He’s in Dartmouth, Nova Scotia.

One type of camera is the GoPro that is readily available in camera shops in Atlantic Canada.  There are other cameras that give even higher quality photographs.

A few days later, the grandson of a friend – a retired forensic engineer, got in touch to tell me about his hobby of taking pictures – from the air, from a hexcopter, a six rotor helicopter.  Zack Keating works in film and television in Toronto.  He’s also a photographer and presently in Dartmouth.

Twice in a few days I’m introduced to a new technique for taking photographs during forensic investigations.

The Chronicle Herald also reported recently that the RCMP have bought five of the multi-rotor aircraft, “drones” as described in the press, for their surveillance work.  These ‘copters cost in excess of $30,000 a piece and, I understand, require two people to operate remotely.  Robert and Zack are flying aircraft costing closer to $2,000 to $3,000.

I’ve examined several photographs taken by these chaps and I’m quite impressed by the detail and resolution.  I presently believe the pictures from these less expensive aircraft will be quite useful for forensic engineering investigations.  I’m carrying out field trials with these multi-rotor helicopters now and will report later on what I learn.

Figs 1 to 5 in the Appendix contain aerial photographs by Robert.  Figs 1 to 3 and Figs 4 and 5 are sequences of pictures progressing from distant shots to close-up views.  I envisage these types of pictures being quite useful in forensic engineering investigations.  Fig. 6 is a photograph by Zack of a hexcopter in flight.

Appendix

Fig. 1: Oblique aerial view of a duck pond in a park in Dartmouth, Nova Scotia.

Fig. 2: Vertical aerial view of an island in the duck pond.

Fig. 3: Vertical aerial close-up of a short portion of  the shore line of the island in Fig. 2.  This part of the shore line is about 2/3 up from the ‘bottom’ end of the island on the left shore.  The boulders both on-shore and submerged are quite clear.

Fig. 4: Oblique aerial view of residential area in Eastern Canada.

Fig. 5: Near vertical aerial view of residential property in the residential area in Fig. 4.  Note the operator on the deck controlling the hexcopter.  Also the 2′ x 2′ square landing pad on the deck.

Fig 6: Hexcopter in low level flight

Peer review is needed

We need peer review in forensic engineering to further ensure that the most thorough investigation is carried out and the most thorough, reliable, and objective technical evidence, opinions, and explanations are provided the justice system.  The court and counsel would learn from the knowledge and experience of more than one expert who would in a sense contribute to a single opinion on the technical issues (Ref. 1).

It’s needed.  I’ve read four poorly written ‘expert’ reports in the last while based on inadequate investigation and reasoning – really, very little investigation in most cases, and no reasoning in all cases.

It’s easy to include a simple form of peer review in forensic engineering

It would be easy to include a simple form of the peer review process in the investigation of a failure or accident in the built environment.  As easy as getting an independent expert to simply read the report of the investigating expert.

From that simple start, gradually move to a more comprehensive process over time.  I’m not quite sure at this stage of my thinking how a comprehensive peer review process would work in forensic engineering, but it would evolve because of the need for it.

Peer review will come in time because of civil procedure rules

The adoption of the peer review process will be driven in part by the increased emphasis on preparation of a report for the justice system – and less emphasis on discovery – arising from civil procedure rules such as Rule 55 in Nova Scotia.

The rule spells out the requirements of the expert.  They are exacting with respect to the expert being thorough, reliable, and objective, and reporting his evidence and reasoning, and also stating what other conclusions might have been drawn from his evidence.

The peer review process would seem to be essential to further ensure that such a requirement is met and the justice system and counsel are properly served.  Professional engineering associations essentially set these same requirements for those practicing in the forensic geotechnical, foundation, and structural engineering fields (Ref. 2 to 5).

The peer review process in science – the source for peer review in engineering

In science, peer review is the process by which an author or researcher’s scholarly work is checked by a group of experts in the same field – his peers, people of similar qualifications, experience, and competence, to make sure it meets the necessary standards before it is published or accepted (Ref. 6).  It constitutes a form of self-regulation by qualified members of a profession within the relevant field (Ref. 7).

Put another way, peer review is specifically geared to catch any potential biases of the primary examiner (the forensic engineer), to promote the examiner’s heightened diligence (promote thorough forensic investigation) to pursue each important clue (follow the evidence) and to recognize the clinical significance as it surfaces (objectively accept the findings) (Ref. 1). (my parenthetic additions)

In science, publishers and editors of journals have identified independent experts in different fields who are assigned to review submitted papers on the author’s research.  The independent experts and the author may be known to one another or they may not.  Or only the one may know of the other.

Peer review has been practised a very long time in science and is essential to obtaining good science.  Forensic engineering must receive the same rigid peer review before going to the judge, jury, and counsel to further ensure they get good forensic engineering..

Peer review in forensic engineering

In forensic engineering, at least during initial implementation of the peer review process, the independent expert, or experts, would be a consulting professional engineer – a peer, retained to review the investigation and report by another engineer.  Both engineers would be retained by the same party involved in the action but ideally from separate firms.

The independent expert’s job would be to check that the forensic investigation was carried out according to the standard of care existing at the time.  Also, as stated above in the introduction to this item, to check and further ensure that “the most thorough investigation is carried out and the most thorough, reliable, and objective technical evidence, opinions, and explanations are provided the justice system” in a well written report, a report that would also be reviewed by the independent expert.

This checking of an engineering expert’s work by his or her peer would be easy to implement and would constitute a simple form of peer review.  It’s recommended now in geotechnical, foundation, and structural engineering (Ref. 2 to 5).

The final report by the investigating engineering expert would be his report alone because he would have corrected any agreed deficiencies noted by his peer.

References

1. The Forensic Panel, Google
2. Lewis, Gary L. ed., Guidelines for Forensic Engineering Practice, ASCE, the Association of Civil Engineers, Virginia, 2003
3. ASCE, Guidelines for Failure Investigation, Virginia, 1989
4. Ratay, Robert T., Forensic Structural Engineering Handbook, McGraw Hill, New York, 2000
5. ASFE, Association of Soil and Foundation Engineers, A Guide to Forensic Engineering and Service as an Expert Witness, 1985
6. Merriam-Webster Dictionary, 2013
7. Wikipedia, Google

What comes first in a case with technical issues?  Filing a claim for damages or conferring with an expert?  Identifying the parties responsible or conferring with an expert. Discovering the parties involved or conferring with an expert?

I’ve been retained as an expert before a claim has been filed and in other cases many years afterwards, and at all stages in between.  In one case, 11 years after a claim was initiated – a claim that was subsequently resolved four months after a simple forensic engineering investigation was carried out.  Why not years earlier and save a lot of money and aggravation?

I’ve been retained in a number of cases, either a few weeks before discovery, a few weeks before ADR, or a few weeks before trial.- long after the die has been cast with respect to case strategy.  And without the benefit of informed comment on the technical issues.  I was consulted in one case a few weeks before trial, and the claimant did not even know the precise location of the structure alleged to have caused the damage – on one side of a hill or the other in a case where location was important!

It’s easy for me to imagine that some claims have been filed by counsel without benefit of some initial forensic investigation and comment by a technical expert – and the wrong parties named in the action.

I’m sure similar comments could be made and examples given about early and late involvement of a technical expert in defending against a claim.

Is there any question about the answer to the question, “What comes first in civil litigation …?”  Or should at least come close to being first.

I’ve also, wisely, been consulted by the owner of a structure that failed somewhat  catastrophically, after the owner had retained counsel, and after Notice of Claim had been filed – but, fortuitously, before counsel developed case strategy.  A close call that one.

I’ve also been retained very early by property owners with a problem, saw that they should confer with a civil litigation lawyer, and been able to refer them to suitably qualified people.

“Expert witnesses play an important role in modern litigation.  The choice of an expert may have a crucial bearing on the outcome of a case.  An expert can make or break a case and should be chosen carefully and early.”  (Ref. 1)

(David Stockwood’s practical handbook on civil litigation went to five editions – the latest in 2004, suggesting he was onto something with his guidelines for civil litigation lawyers.  I’ll bet he was planning a sixth edition when he passed away prematurely)

Technical experts should be involved early if for no other reason so they don’t have to play ‘catch-up’ later, which can be expensive.  Also, so counsel is not caught out on a limb, which could be embarrassing.  Involved possibly as early as counsel’s initial assessment as to whether or not to take a case, for certain before a statement of claim or defence is filed.  (Ref. 2 to 7)

Assessing the merits of a claim should involve early input from an expert when there is the slightest chance that technical issues are involved along with the legal issues.  Experts know about technical issues.

For example, a forensic engineering investigation:

• determines the cause of a problem or an engineering failure in the built environment, or the cause of an accident,
• provides evidence that establishes the technical facts
• identifies the technical issues arising from the cause of a failure or accident on which a claim for damages is based, or a defense mounted.

Knowing cause, and the strength of the technical evidence and the importance of the technical issues – all determined for the most part by the expert, counsel can reliably assess the merits of a case and whether or not to proceed.

Most important in an assessment of merit is knowing who is responsible for the damages and who to name in an action and this frequently derives from knowing the cause of the failure or accident.

And no assessment of the merit of a claim involving legal and technical issues would be complete – would in fact be lacking terribly, without an initial assessment of legal and forensic engineering investigative costs.  (Ref. 1, 3, and 8 to 10)

Who better qualified to assess technical costs than the technical expert?  And, wisely, to be given the opportunity to do this as early as possible in the action.

For certain, there are situations where a claim or defense might be filed before a technical expert is consulted – sometimes the technical issues may seem minor, but not years after the fact.

It seems prudent for counsel to err on the side of caution and retain an expert early, like the legal handbooks and forensic engineering guidelines recommend.  (Ref. 1, and 11 to 13)  It’s easier to defend (to the client) having been prudent than not.

References

1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed. 2004, pg. 14, Thomson Carlswell
2. Steps in the civil litigation process, posted, August 28, 2012
3. Steps in the forensic engineering investigative process with an Appendix on costs, posted July 15, 2013
4. The role of a professional engineer in counsel’s decision to take a case, posted June 26, 2012
5. The role of a professional engineer assisting counsel prepare a Notice of Claim, posted July 26, 2012
6. The role of a professional engineer assisting counsel prepare a Statement of Claim, posted September 11, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Defence, posted September 26, 2012
8. How to manage the cost of civil litigation, posted October 4, 2013
9. Difficulty estimating the cost of forensic engineering investigation, posted July 23, 2013
10. Why the difficulty estimating the cost of forensic engineering investigation?, posted September 1, 2013
11. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, New York, 1989
12. ASCE, Guidelines for Forensic Engineering Practice, New York, 2003
13. ASCE, Guide to Investigation of Structural Failures, New York, 1986