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

Management should be easy

Managing the cost of civil litigation should be easy when it involves technical issues.  But that doesn’t necessarily mean that it will be inexpensive.  Nor that you will know at the start exactly what the final cost will be.

What it does mean is that there is a simple process that can be followed.  A process to keep you and the client informed at different stages of litigation of the costs-to-date and the estimated total costs.  And keep you and the client informed with an increasingly accurate assessment of final costs.  There is a process for managing the financial realities of civil litigation (Ref. 1).

Why must cost be managed?

The cost of civil litigation must be managed in some way because:

1. Civil litigation can be expensive (Ref. 1)
2. Accurately estimating the cost of civil litigation is difficult (Ref. 16, 17)
3. Clients generally don’t understand the financial realities of litigation (Ref. 1)

If you can measure something you can manage it.  Put another way, originally, ‘What gets measured, gets done’ (Ref. 2).

If you are measuring something on a regular basis you can manage and control it.  If you take the measure of the costs of civil litigation – estimate, up-date, and evaluate the costs, periodically, for example, at the different stages of litigation, you can manage and control the costs.

Managing and controlling costs means ensuring you input the most up-to-date costs into your periodic re-assessment of the merits of continuing an action.

Categories of cost in civil litigation

Fortunately, what could be easier than noting three main categories of cost in civil litigation involving technical issues?:

1. Legal costs
2. Cost of the role of the expert at the different stages of an action, and,
3. The cost of the forensic engineering investigation

Key stages in cost estimating

Stages in civil litigation

Then obtaining estimates of these costs and updates at the following key stages of civil litigation as recommended in practical handbooks of civil litigation (Ref. 1):

1. Initial preparation and pleadings,
2. Preparation and completion of discovery,
3. Preparation and completion of ADR (Alternate Dispute Resolution)
4. Long-range preparation for trial, and,
5. Short-range preparation for trial.

I added Item #3 on ADR to the recommendations in legal handbooks because new technical data might arise in discovery that would merit an update of estimated costs.  Also, because the vast majority of cases do not proceed to trial (Ref. 1).

You as counsel would estimate your legal fees at these successive key stages and add them to the other two categories of fees.

You would work with the expert in estimating the second category of costs, the role of the expert at the different stages of civil litigation (Ref. 3 to 14).

The professional engineer would estimate the third category, the cost of the forensic engineering investigation.

Stages in forensic engineering investigation

Updated cost estimates can be given for the forensic engineering investigation at the following stages of an investigation:

(Ideally, much of the engineering investigative work would be complete by key stage #2 in the above, Preparation and Completion of Discovery.  In fact, in a perfect world, civil litigation wouldn’t be entertained at all in a case with technical issues until a forensic engineering investigation had been completed, the cause of an engineering failure or an accident determined, and the technical merits of the case assessed):

1. Visual assessment of the site and preliminary planning of the investigation
2. Field investigations – often after documenting damage to the structure, also after determining site conditions
3. Research
4. Follow-up investigations
5. Data analysis

Counsel would take these updated investigative costs from the professional engineer, add them to the legal costs, and to the cost of the role of the expert in litigation, to obtain total, updated, civil litigation costs, and the client advised.

Then do this again at key stages of the engineering investigation and at key stages of the civil litigation process.  The merits of the case would be reviewed on each occasion and the client updated so that he or she could make a decision on whether or not to continue the action.

The estimating of forensic engineering investigative costs assumes a full scale investigation – same as counsel is encouraged in legal handbooks to assume a full scale trial when estimating costs (Ref. 1).

Reporting costs to the client

It’s important when counsel is reporting costs-to-date plus estimated future costs to express these costs as a percentage of the cost of the failed structure and/or the likely award.  Do this for estimated costs that err on the high side.  This percentage can be quite enlightening with regards to the wisdom of continuing the action.

Few clients realize how much it costs to become involved in litigation (Ref. 1).  Nor how difficult it is for counsel and the expert to estimate total costs (Ref. 16, 17).  Some cases and engineering investigations become very complicated.  A stepped approach to managing costs and frequent updates helps the client deal with the uncertainty.

The approach is not unlike the cost control procedures in the field of project management – constant re-evaluation and updating based on new data (Ref. 15).

It’s difficult to accurately estimate the cost of forensic engineering investigation because of the unknowns (Ref. 16, 17).  Counsel should help the client to understand, however, that the difficulty estimating costs decreases as technical data becomes available during key stages, and the accuracy of the cost estimate increases.

Counsel must ask for these updated cost estimates at key stages because it takes time to update the scope of a forensic engineering investigation and update a cost estimate, but, it’s worth it.

Summary

To summarize, as part of your on-going assessment of the merits of a claim or of a defense,

1. Obtain the very approximate forensic engineering investigative costs from the engineer at the start of an action,
2. Confer with the professional engineer and together determine the cost of the expert’s role at each stage in the civil litigation process,
3. Add your legal costs to the engineering investigative costs and to the costs of the expert’s role in the civil litigation process to obtain a total cost,
4. Brief your client at the start of an action on the estimated total costs and the legal and technical merits of the action, including comments on the difficulty estimating costs by you and the expert.
5. Then do this again – estimating total costs – at key stages of the engineering investigation and at key stages of the civil litigation process, review the merits of the case again, and update the client at each stage, and, finally,
6. Express the estimated total costs at each stage as a percentage of the expected award, which can be enlightening.

It sounds easy managing the cost of civil litigation, and it is easy – a well identified step by step process – and counsel and clients can benefit from that process.

Counsel does need to be alert though considering that many of you handle many files.  I’ve heard “…hundreds of files…” by one senior lawyer, “…lots…” by another, and “…dozens…” by a young lawyer.  So, be careful and pay attention to individual cases and manage the cost of civil litigation as easily as it can be done.

***

The cost of civil litigation and the scope of forensic engineering investigation

Before a professional engineer can actually estimate costs, the scope of a forensic investigation must be planned, based on an initial hypothesis of the cause of the failure or accident.  This planning takes time and involves identifying:

1. The methods of investigation,
2. The tasks associated with each method,
3. The people, expertise, and skills needed to carry out the tasks
4. The supplies and equipment needed by the people, and
5. The time to carry out the tasks

Only after the scope of an investigation is developed, and updated at key stages, can the cost of a forensic engineering investigation be estimated.  This takes time, estimating, but if done properly the client knows approximately where he’s at cost-wise and where he might be going at any particular stage.

The actual scope and cost of a forensic investigation comes into better focus as each stage is reached and passed.

The estimating of forensic engineering investigative costs assumes a full scale investigation – same as counsel is encouraged in legal handbooks to assume a full scale trial when estimating costs.

And an assumed full scale forensic engineering investigation that responds to the justice system’s requirement for a thorough and reliable investigation that leads to an objective opinion as to cause.  (Ref. 4, 18 to 21).

 References

1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed. 2004, pg. 14, Thomson Carlswell
2. Personal communication, Osmond, NSLS, Jack, Owner, Affinity Contracting and Environmental Ltd., Halifax and Ball, P.Eng., Ken, Former manager, Imperial Oil Refinery Ltd. (“What gets measured, gets done”)
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process with an Appendix on costs, published July 15, 2013
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
15. Project Management Institute, A Guide to the Project Management Body of Knowledge, Most recent edition, Newtown Square, Pennsylvania, USA
16. Difficulty estimating the cost of forensic engineering investigation, posted July 23, 2013
17. Why the difficulty estimating the costs of forensic engineering investigation?, posted September 1, 2013
18. Civil procedure Rule 55, Nova Scotia
19. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, New York, 1989
20. ASCE, Guidelines for Forensic Engineering Practice, New York, 2003
21. ASCE, Guide to Investigation of Structural Failures, New York, 1986

Bibliography

1. Bent, James A. and Humphreys, Kenneth K., Editors, Effective Project Management Through Applied Cost and Schedule Control, Marcel Dekker, Inc., New York, 1996

Update

This item is an update of a recently published item on managing the cost of civil litigation.  The update basically involved expanding the section above, ‘Why must cost be managed?‘.  The section is expanded by adding and explaining an important managerial concept, and it’s application to civil litigation, that, ‘If you can measure something you can manage it’, or, put another way, ‘What gets measured, gets done’.

Easy management

Managing the cost of civil litigation should be easy when it involves technical issues.  But that doesn’t necessarily mean that it will be inexpensive.  Nor that you will know at the start exactly what the final cost will be.

What it does mean is that there is a simple process that can be followed.  A process to keep you and the client informed at different stages of litigation of the costs-to-date and the estimated total costs.  And keep you and the client informed with an increasingly accurate assessment of final costs.  There is a process for managing the financial realities of civil litigation (Ref. 1).

Why must cost be managed?

The cost of civil litigation must be managed in some way because:

1. Civil litigation can be expensive (Ref. 1)
2. Accurately estimating the cost of civil litigation is difficult (Ref. 15, 16)
3. Clients generally don’t understand the financial realities of litigation (Ref. 1)

Categories of cost in civil litigation

Fortunately, what could be easier than noting three main categories of cost in civil litigation involving technical issues?:

1. Legal costs
2. Cost of the role of the expert at the different stages of an action, and,
3. The cost of the forensic engineering investigation

Key stages in cost estimating

Stages in civil litigation

Then obtaining estimates of these costs and updates at the following key stages of civil litigation as recommended in practical handbooks of civil litigation (Ref. 1):

1. Initial preparation and pleadings,
2. Preparation and completion of discovery,
3. Preparation and completion of ADR (Alternate Dispute Resolution)
4. Long-range preparation for trial, and,
5. Short-range preparation for trial.

I added Item #3 on ADR to the recommendations in legal handbooks because new technical data might arise in discovery that would merit an update of estimated costs.  Also, because the vast majority of cases do not proceed to trial (Ref. 1).

You as counsel would estimate your legal fees at these successive key stages and add them to the other two categories of fees.

You would work with the expert in estimating the second category of costs, the role of the expert at the different stages of civil litigation (Ref. 2 to 13).

The professional engineer would estimate the third category, the cost of the forensic engineering investigation.

Stages in forensic engineering investigation

Updated cost estimates can be given for the forensic engineering investigation at the following stages of an investigation:

(Ideally, much of the engineering investigative work would be complete by key stage #2 in the above, Preparation and Completion of Discovery.  In fact, in a perfect world, civil litigation wouldn’t be entertained at all in a case with technical issues until a forensic engineering investigation had been completed, the cause of a failure or accident known, and the technical merits of the case assessed):

1. Visual assessment of the site and preliminary planning of the investigation
2. Field investigations – often after documenting damage to the structure, also after determining site conditions
3. Research
4. Follow-up investigations
5. Data analysis

Counsel would take these updated investigative costs from the professional engineer, add them to the legal costs and to the cost of the role of the expert to obtain total updated civil litigation costs, and the client advised.

Then do this again at key stages of the engineering investigation and at key stages of the civil litigation process.  The merits of the case would be reviewed on each occasion and the client updated so that he or she could make a decision on whether or not to continue the action.

Reporting costs to client

It’s important when counsel is reporting costs-to-date plus estimated future costs to express these costs as a percentage of the cost of the failed structure and/or the likely award.  Do this for estimated costs that err on the high side.  This percentage can be quite enlightening with regards to the wisdom of continuing the action.

Few clients realize how much it costs to become involved in litigation (Ref. 1).  Nor how difficult it is for counsel and the expert to estimate total costs (Ref. 15, 16).  Some cases and engineering investigations become very complicated.  A stepped approach to managing costs and frequent updates helps the client deal with the uncertainty.

The approach is not unlike the cost control procedures in the field of project management – constant re-evaluation and updating based on new data (Ref. 14).

It’s difficult to accurately estimate the cost of forensic engineering investigation because of the unknowns (Ref. 15, 16).  Counsel should help the client to understand, however, that the difficulty decreases as technical data becomes available during key stages and the accuracy of the cost estimate increases.

Counsel must ask for these updated cost estimates at key stages because it takes time to update the scope of a forensic investigation and update a cost estimate, but, it’s worth it.

Summary

To summarize, as part of your on-going assessment of the merits of a claim or of a defense,

1. Obtain the very approximate engineering investigative costs at the start of an action,
2. Add the engineering costs to your legal costs and to the costs of the expert’s role in the civil litigation process, and, finally,
3. Brief your client on the estimated total costs and the legal and technical merits of the action, including comments on the difficulty estimating costs by you and the expert.

Then do this again at key stages of the engineering investigation, and at key stages of the civil litigation process, review the merits of the case, and update the client at these key stages.  Express the estimated costs as a percentage of the expected award.  This can be very enlightening with respect to the wisdom of continuing the action.

It sounds easy managing the cost of civil litigation, and it is easy – a well identified step by step process – and counsel and clients can benefit from that process.

Counsel does need to be alert though considering that many of you handle many files.  I’ve heard “…hundreds of files…” by one senior lawyer, “…lots…” by another, and “…dozens…” by a young lawyer.  So, be careful and pay attention to individual cases and manage the cost of civil litigation as easily as it can be done.

***

The cost of civil litigation and the scope of forensic engineering investigation

Before a professional engineer can actually estimate costs, the scope of a forensic investigation must be planned, based on an initial hypothesis of the cause of the failure or accident.  This planning takes time and involves identifying:

1. The methods of investigation,
2. The tasks associated with each method,
3. The people, expertise, and skills needed to carry out the tasks
4. The supplies and equipment needed by the people, and
5. The time to carry out the tasks, initially, then revising the scope and time at key stages of an investigation.

Only after the scope of an investigation is developed, and updated at key stages, can the cost of a forensic engineering investigation be estimated.  This takes time, estimating, but if done properly the client knows approximately where he’s at cost-wise and where he might be going at any particular stage.

The actual scope and cost of a forensic investigation comes into better focus as each stage is reached and passed.

The estimating of forensic engineering investigative costs assumes a full scale investigation – same as counsel is encouraged in legal handbooks to assume a full scale trial when estimating costs.

And an assumed full scale forensic engineering investigation that responds to the justice system’s requirement for a thorough and reliable investigation that leads to an objective opinion as to cause.  (Ref. 3, 17 to 20).

 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, published, August 28, 2012
3. Steps in the forensic engineering investigative process with an Appendix on costs, published July 15, 2013
4. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
5. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
6. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
8. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
9. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
10. The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR), published November 16, 2012
11. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
12. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
13. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
14. Project Management Institute, A Guide to the Project Management Body of Knowledge, Most recent edition, Newtown Square, Pennsylvania, USA
15. Difficulty estimating the cost of forensic engineering investigation, posted July 23, 2013
16. Why the difficulty estimating the costs of forensic engineering investigation?, posted September 1, 2013
17. Civil procedure Rule 55, Nova Scotia
18. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, New York, 1989
19. ASCE, Guidelines for Forensic Engineering Practice, New York, 2003
20. ASCE, Guide to Investigation of Structural Failures, New York, 1986

Bibliography

1. Bent, James A. and Humphreys, Kenneth K., Editors, Effective Project Management Through Applied Cost and Schedule Control, Marcel Dekker, Inc., New York, 1996

Why indeed?

You’re the expert and should know how to accurately estimate the cost of your work, you say.  But we don’t know in every instance, and for every investigation and task.  We know a lot in our respective fields but we don’t know it all.  There are just too many unknowns.

Similar, would be counsel’s difficulty estimating the cost of the role of the expert at the different stages of the civil litigation process (Ref. 3 and 5 to 14).  These costs are quite separate from the cost of the steps in the forensic engineering investigative process.

Summary of reasons for the difficulty estimating costs

Accurately estimating the cost of forensic engineering investigation is difficult because:

1. Identifying all the investigative tasks at the start of the process is difficult, occasionally impossible:

• The tasks that must be completed in the standard investigative process. (Ref. 4)  Sometimes all of them.  Sometimes we find we can skip some.
• The unknown follow-up investigations that must be carried out

2. The unknown magnitude and complexity of some of these investigations and tasks

3. The possibility of changed conditions.  For example, in the office, an unknown research question or, in the field, changed foundation soil conditions.

4. Some tasks depend on the data from previous tasks and we don’t know the nature of that data until we gather it.

5. Some investigations and tasks are carried out well in the future when circumstances may have changed.

Detailed explanation of the reasons for the difficulty estimating costs 

The following is a detailed explanation of why we have difficulty accurately estimating the cost of each task in a forensic engineering investigation.  I have included some examples in the following.  There are other examples in the Appendix.

The main reasons are in a bulleted list.  I elaborate a little on the list in accompanying text.

The explanation is based on my engineering experience investigating the cause of failures in the built and natural environments, and the cause of accidents resulting in property damage, personal injury, and/or death.  My experience is in Atlantic Canada, northern and western Canada, the Caribbean, and overseas in Australia and the U.K.

Previous blogs described the different steps in a forensic engineering investigation (Ref. 4) and the degree of difficulty estimating their cost (Ref. 15).

The main sections in the following, 1., 2., 3…, are the main tasks in a forensic engineering investigation.  The sub-sections, 2.1, 2.2, 2.3…, are a breakdown of these tasks.

1. Document review

Easy

It’s easy to accurately estimate the cost of this initial task because:

• You have the documents in front of you
• For a simple reading, you count the pages, calculate time based on your reading rate, and multiply by the appropriate fee to get a quite accurate estimate of cost
• Actually studying the documents, abstracting data, and making notes adds difficulty to the estimating but it’s still relatively easy

Estimating the cost of this initial step in the process is easy because you have the documents in front of you – they have been given to you by counsel.

For a simple reading you can count the pages and estimate time according to your reading rate.  Then apply the appropriate fee to get an estimated cost.

Actually studying the documents – as compared to a simple reading – abstracting data, and making notes would add a level of difficulty to accurately estimating costs.  Still, this step is relatively easy.

For example, I recently read the documents on an accident.  They consisted of the lengthy transcripts of the testimony of the three parties involved.  I read them to get a feel for the situation preparatory to a possible site visit.  Two transcripts were easy to read.  One was difficult which reduced the accuracy of my cost estimate a little – a difficulty I did not know about at the start, but still the estimating was fairly easy.  

2. Visual assessment

A visual assessment can involve the following three main tasks:

2.1 Visit and visually assess site

Fairly easy

Accurately estimating the cost of this task is fairly easy because:

• You know the location of the failure or accident site and the time to get there
• All you’re going to do is walk around the site – kick the tires in a sense, poke around a bit, and pick up general impressions and make notes on future tasks
• While a catastrophic failure adds difficulty, you can still schedule a few hours initially and estimate costs for this time – and schedule a more detailed, follow-up visit and visual assessment if necessary

Estimating the cost of this task is fairly easy because you know where the site is located and the time to get there.  You also know you are simply walking around and looking – picking up visual impressions, making notes on what you’re seeing, and identifying future tasks.  There is some difficulty because you don’t always know what you’re going to see, particularly with a catastrophic failure.

2.2 Photograph and videotape site

Fairly easy

Estimating the cost of this task is fairly easy because:

• The general intent of the photographs is to refresh the memory of what was seen
• Simple distance and middle-distance photographs/video achieve the purpose
• While labelling the photographs adds difficulty – it actually adds the difficulty to the easy photographing, it doesn’t take so much from the fairly easy cost estimating of this task

This task is also fairly easy to estimate particularly when the type of photograph/video is distant and middle distant, rather than a lot of close-ups, and the intent of the photographs is to refresh the memory of what was seen.

There’s difficulty, however, when labelling the photographs, putting captions on them.  These must be carefully and accurately worded in a forensic investigation and that takes time – the picture may become an important document at a later date.

2.3 Interview witnesses

Difficult

Accurately estimating the cost of this task is difficult because:

• You don’t know how many witnesses there will be
• Nor the amount of time needed to locate the witnesses
• Or the duration of the interviews

The difficulty estimating the cost of this task is real easy to understand.  It’s difficult because you don’t know how many witnesses there will be, the difficulty locating them, and the duration of the interviews.

3. Field investigations

Any number of different field investigations might be carried out depending on what failed and how – inadequate performance of a structure, a damaged but still serviceable structure, or complete collapse of a structure, or the type of accident that occurred.  The following investigations are an almost certain requirement:

3.1 Describe the failure or accident

Fairly easy

Estimating the cost of this task is fairly easy because:

• The documents usually contain a description that you can simply read
• Confirming the description in the field and taking a few measurements doesn’t greatly affect the difficulty of estimating the cost of this task

The documents usually contain a description, so, you would just read the existing description.  This means estimating the cost of this investigation would be fairly easy.  However, the description must be confirmed in the field and add detail by examining the failed structure further.  Some measurements might be taken.

3.2 Survey and document damage to the structure

Fairly difficult

Accurately estimating the cost of this investigation is fairly difficult because:

• It often involves taking a lot of measurements and carefully plotting the data
• This takes time and you don’t know what you got on your hands until you get into it

It is fairly difficult to estimate the cost of this investigation because it often involves a lot of measuring then plotting the data.  This takes time and you don’t know what you’ve got on your hands until you get into it.

Carefully plotting the data is often quite important in a foundation failure where the structure is damaged but hasn’t collapsed completely.

For example, the plot can quantify and characterize the magnitude and location of the damage, particularly if the latter is only slight.  The plot sometimes can actually give an indication of the cause of the failure.

3.3 Determine how the structure was built

Easy to difficult

The effort in estimating the cost of this task can be quite variable, from easy to difficult, because:

• The estimating depends on the availability of construction or as-built drawings – easy to estimate if available, difficult if not
• It also depends on the age of the structure – difficult because of the unlikely availability of drawings for old structures, a little easier if drawings exist for an old structure
• And, if drawings are available, whether or not the new or old structure was erected according to the drawings

Estimating the cost of this task is easy, if there are construction or as-built drawings available.  You gather the drawings together and have them readily available for reference during the analysis of the cause of the failure.

The estimating gets difficult if there are no drawings or if the structure is old.  It’s also difficult if the structure is said to be constructed one way and turns out to be different.

For example, – this is quite an example – I investigated the construction of a structure one time that was said to be uniformly supported on a concrete floor slab.  It was also said to have been temporarily supported on concrete columns on a five foot grid during underpinning work.  The cost estimate here would seem to be for a simple confirmation of what was said to be case.

Problems started as soon as a precise elevation survey found the supposedly level structure was sloping and off level by one foot from one end to the other.  Turns out – well along in the forensic engineering investigation, that it had been built that way.

Then it was found that the columns were separated at random distances of two to seven feet rather than on a five foot grid.  And that some of the columns were steel jack-posts, and that some of these were supported on rotting timber.

Finally, it was found that the ‘temporary’ columns were actually the permanent support of the structure, and that it was not a uniformly supported concrete floor slab – information that guided the original cost estimate.

Needless to say, my cost estimate to investigate construction of this structure was very inaccurate.

3.4 Determine the site conditions

Very difficult

Estimating the cost of this investigation is very difficult because:

• At best, you only have the most general understanding of what you might find – what you are investigating.  That is because most of it – the most important part of it, lies below the ground surface out of sight

Estimating this cost is very difficult because site conditions include, in addition to the surface terrain, which you can see, the nature and condition of the underlying soils, rocks, and groundwater, which you can’t see.

How do you estimate the cost of investigating something the nature of which you can’t see?  Except to know a little in the most general way based on published information.

4. Laboratory investigations

Very difficult

It’s very difficult to estimate the cost of these investigations because:

• Laboratory testing – the number and the kinds of tests, is very dependant on the findings of previous investigations
• You don’t know the different kinds of materials you will be testing, the type of tests you will be doing, and the physical properties in which you will be interested

These investigations are very difficult to estimate costs for because they depend on the findings – the evidence from your previous investigations, particularly materials from the damaged structure and the terrain beyond.

5. Research

Research can involve a lot of investigative work the nature of much of which just wouldn’t be known until other investigations are completed.  Hence estimating research costs at the start of a forensic engineering investigation is generally difficult.

A lot of the unknown investigative work would fall under the catch-all task of desk studies.  The need to research the codes and the standard of care in connection with an engineering failure or an accident is an almost certain requirement.

5.1 Desk studies and leg work

Difficult

It’s difficult to estimate the cost of these studies because:

• You just don’t know what the unknown studies are until you are well along in the forensic investigation, or, if you do know certain standard studies will arise, you might not know their particular magnitude or complexity

The cost of these studies is difficult to estimate because in some cases you just don’t know what they are until you are well along in a forensic engineering investigation.  Or if you know that a certain study will follow from previous investigations – certain standard follow-up studies, you may not know the magnitude or complexity of the particular study.

For example, I found during one case that I had to investigate the shrinkage and fluid properties of a construction material used in the underpinning of a structure.  This involved literature and internet searches – desk studies, and interviewing suppliers of the material – leg work.  I did not know there was such a material at the start of the forensic investigation.

5.2 Identify codes

Fairly difficult

It’s difficult to estimate the cost to identify codes and guidelines because:

• While we know or suspect the existence of certain standard codes, we can’t assume we know about all the relevant guidelines, which are different from codes

Estimating the cost to identify and study the applicable codes and guidelines is fairly difficult, particularly guidelines.  Codes we know about; they’re usually issued by national and provincial bodies and large organizations.  Useful guidelines are less well known and can vary for different components of a structure, therefore difficult to estimate costs to identify.

5.3 Identify standard of care

Fairly difficult to very difficult

To summarize, estimating the cost to assess the standard of care can be difficult because:

• You don’t know at the start of an investigation if the industry involved in development of the structure or component that failed is well defined or not, how many parties comprise the industry, and how many interviews are needed to be satisfied about average practice
• If you do know – like the design and construction of conventional buildings, it might almost be fairly easy

The difficulty in estimating the cost to identify the standard of care is closely related to how well defined the industry is that developed the structure, or the component that failed or didn’t perform as required, and how many parties comprise the industry.

Assessing the standard of care involves gaining a very good understanding of the industry, the parties comprising the industry, and how they interact and work together.  Difficult sometimes, easy other times.

For example, sometimes it’s fairly easy to estimate costs as in the case of the design and construction industry.

Then once you know the industry, identifying the standard of care involves interviewing representatives of the different parties involved in the industry and in development of the structure or component that failed, as to their work practices.  You interview until you feel satisfied you understand the average practice (Ref. 16) for each party and from that the average practice for the industry as a whole – the standard of care.

Sometimes it’s difficult to estimate costs as in a poorly defined industry.  How such an industry works only comes into focus after you interview a number of representatives of different parties that seem to have a role in the industry.

For example, I assessed the standard of care in one case earlier this year.  I soon learned that the industry was poorly defined resulting in the difficulty outlined above.  At one point, I identified 11 parties comprising this industry.  In addition, there were a number of codes and guidelines to be assessed as to their relevancy.

Interviewing one to three representatives of each party resulted in 15 to 20 interviews and e-mail enquiries in an effort to be satisfied I understood how the industry worked and its average practice.  It’s very difficult to accurately estimate the cost to assess the standard of care in a situation like this.

6. Follow-up investigations 

Impossible

It’s impossible to estimate the cost of follow-up investigations because:

• The nature and the number of follow-up investigations is just not known at the start of a forensic engineering investigation.  For that matter, whether or not there will even be a need for such investigations

It’s impossible to estimate the cost of follow-up investigations because we don’t know what they are – what evidence we may need to follow, until we are well into the forensic engineering investigation.

7. Data analysis and forming an opinion 

Very difficult

To summarize, it is very difficult to estimate the cost of this task because:

• You don’t know at the start of a forensic investigation how much data you will have to analyse
• Nor do you know it’s nature – the kind of data, and its complexity
• Or the amount of reasoning, crosschecking, and corroboration required
• Nor even if another visit to the site is necessary
• At the start of an investigation, you just don’t know how many hours, days, possibly even weeks will be required for the analysis

The cost of this task is very difficult to estimate because you just don’t know at the start of a forensic engineering investigation how much data you’ve got to study, it’s nature, and it’s complexity.  Nor how much reasoning, cross checking, and corroboration you’ve got to do.

Sometimes at this late stage of an investigation it may be necessary to go back to the site and check one thing or another.  Depending on the nature of the failure or accident the data analysis could take hours, days, maybe even weeks.

8. Repair and remediation 

Difficult

It’s difficult to estimate the cost of repair and remediation because:

• You don’t know the cause of the failure at the start of a forensic engineering investigation when you’re estimating costs
• Fixing the unknown cause is part of the cost of repair and remediation

You can’t fix something until you know what’s wrong with it and why making it difficult to accurately estimate costs at the start of an investigation.  This is particularly the case for a foundation failure where the unknown cause often lies below the ground surface.  You can’t see and don’t know what’s below the ground surface at the cost estimating stage at the start of a forensic investigation.

9. Report

Difficult

It’s difficult to accurately estimate the cost of a forensic report because:

• While it can be a bit mechanical – fairly easy, writing a simple report, it can be difficult if there is a lot of data to gather together, tabulate, and analyse
• Estimating the cost of a report can be particularly difficult if there is a lot of data to actually plot, drawings to produce, and graphics to include and label with accurately worded captions
• Involved analysis can be difficult to describe in simple terms
• The data from unexpected follow-up investigations needs to be reported and analysed
• Unexpected evidence (‘follow the evidence’) must be reported and analysed

It’s difficult but not impossible to estimate the cost of writing a report on the forensic investigation, before the investigation has been carried out.

The report describes what has been done, gathers together from the file and reports the data, describes the analysis of the data, notes the conclusions, and states the opinion.  To some extent it’s a bit mechanical.

It gets difficult to estimate costs when there is a lot of data to tabulate, plot, and describe in a report.  This can reduce the accuracy of the cost estimate.

Describing an involved and difficult analysis in easily understood terms can be time consuming – an involved analysis not anticipated at the start and allowed for in the cost estimate.

Unknown follow up investigations, and evidence that leads off in unexpected directions, can also add to the estimated cost of writing a forensic report.

                                       ***

The foregoing assessment of difficulty was taken from a posting to this blog site on July 15, 2013 entitled, “Steps in the forensic engineering investigative process with an Appendix on costs”.

References

1. What is forensic engineering?, published, November 20, 2012
2. Writing forensic engineering reports, published, November 6, 2012
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process with an Appendix on costs, published July 15, 2013
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
15. Difficulty estimating the cost of forensic engineering investigation, published July 23 2013
16. ASFE, Expert: A guide to forensic engineering and service as an expert witness, Association of Soil and Foundation Engineers 1985

Bibliography

We have our standard investigative protocols for guidance when estimating costs but we know we may end up skipping tasks or adding follow-up tasks.

Some examples

For example, in an alleged major flooding problem I skipped from an oral briefing of the problem to a visual assessment on site to an oral report on my findings, that brought an expensive case by others to a quick close.

We also know that a standard task in a forensic investigation may take on a quite unsuspecting magnitude and/or complexity.

For example, assessing the standard of care to do with a matter in the built environment can be fairly straightforward – you identify the usually few parties involved – the designers and construction people, and interview them.

But what happens if you gradually learn that a certain industry is poorly defined and there are maybe a dozen or so parties involved in the task for which the standard of care is being assessed and you must interview two or three from each party to get an average?  Then estimating the cost of doing this is difficult, particularly at the start when you didn’t know the industry was poorly defined and made up of so many parties.

We also know that the evidence – if we follow it – a follow-up investigation – may take us down an unknown path to an unknown task.

For example, I found myself in one case needing to determine the physical properties of a quite different construction material, one used infrequently in Atlantic Canada.  But as it turned out a material extremely relevant to the cause of a construction problem.  This was a cost I had no idea I would have to incur on behalf of the client, the plaintiff in this particular case.

Do we jeopardize the appearance of our objectivity when we are retained and confer directly with a litigant rather than with their counsel?

Sometimes counsel recommends that their client get an expert to investigate their problem, then get back to them with a report.  Other times the litigant does this first then retains a lawyer.

How do we stay at arm’s length from the person with the problem in a situation like this and be seen to be objective?

What does this do to our need as forensic engineers “to be objective and be seen to be objective”?

I had this situation develop a while ago when I was retained by a property owner with a problem who subsequently retained counsel.  It was difficult to stay at arm’s length particularly in view of the plaintiff’s well informed technical background compared to counsel’s.

I was reminded of this situation again last week when a litigant telephoned with a serious enough problem.  The quite technical litigant described their problem well.  They also referenced their lawyer, a senior person in the town who does not advertise themselves as practicing civil litigation.

What’s going to happen if I take this case?  The inclination will be to confer with the technical litigant and much less so with the quite possibly very non-technical counsel.

Experts in the U.S. are being advised by organizations like Expert Communications and SEAK, Inc. not to take cases like this. (Ref. 1, 2) There is too much risk to the perceived objectivity of the forensic engineer according to these groups.  If we appear to be biased in the one instance, what does that do to our credibility for evermore?

Atlantic Canada is not the U.S. – civil litigation is different in the U.S., but I think we’ve got to be careful up here, nevertheless, and take steps to ensure we work closely with counsel as forensic engineers even though we might be initially retained by the litigant.

I have in the past, and would in the future, report directly to counsel and copy all material to the litigant.  I would explain to the litigant that this is the best procedure and in his interests.  An advantage is the ongoing opportunity to explain and keep counsel up to speed on technical matters.

I’ve had the experience of two cases where counsel thought they understood their case technically, and declined my briefing, and each case went badly for the plaintiff, and indications were – from the judge, no less, that they shouldn’t have.

It’s particularly important, in the interests of being seen to be as objective as possible, to have the accounts go through counsel.  This also enables counsel to carry out ongoing assessments of the merits of the case, including legal and forensic engineering investigative costs as a percent of estimated damages. (Ref. 3)

We need to guard the appearance of our objectivity with a vengeance, for the benefit of the litigant, ourselves, and counsel.  But it’s not always easy when the litigant seeks and retains the forensic engineer directly.

References

1. Expert Communication, Dallas, Texas www.expertcommunications.com http://tinyurl.com/m2sn8sh
2. SEAK, Inc, Falmouth, MA www.seak.com
3. Stockwood, Q.C., David, Civil Litigation, 5th ed., 2004 Thomson Carswell, Toronto

How do you express “the degree of certainty with which the expert holds the opinion” as required by some civil procedure rules in Atlantic Canada? (Ref. 1)  For example, Rule 55 in Nova Scotia.  Do you know?

What did the draftees of rules like this have in mind?

How do you indicate if the degree of certainty is high or low, or somewhere in between?  How do you indicate that it’s just over 50% or close to 95% or somewhere in between?

Most definitions of “degree” in different dictionaries include words like “steps”, “stages”, “grade”, “classifications”.  These words suggest to me something that can be measured, or at least the attributes of different levels of classification identified.

What words should we use if we use words?  If we use numbers, how do we measure “degree” of certainty?

Would the court expect an engineer or some other applied scientific expert to quantify the degree of certainty?  Engineers like to measure things and to some extent, the courts, judges, juries, counsel, the public, know and expect this.  How do you measure the degree of certainty?

It’s been said, if you can measure something you can manage it. (Ref. 2)  How do you measure the degree of certainty and manage to achieve an acceptable certainty when forming your opinion?

If we could measure it we could manage it and ensure it’s over 50%, say, or close to 95%, and assure the court that our opinion is correct.

Could you quantify degree of certainty by reporting that you carried out a certain number of studies of equal validity and more than half of those lead to your opinion?  Would that be quantification?

Is it necessary to quantify the degree of certainty, as engineers would like to do?  Or is it sufficient in Atlantic Canada to express an opinion in an expert report as follows, as recommended by one organization in the U.S. (Ref. 3):

It is my opinion “based upon a reasonable degree of (engineering, medical, legal, accounting, jewelry appraisal, or other field) certainty that …”

When I first read this recommendation I e-mailed the first author, Steven Babitsky, a former personal injury trial attorney, and was told this means “more likely or more probable than not and is legally sufficient”. (Ref. 4)  Is he saying “beyond a reasonable doubt”?  If this gets us just over the line, 50+%, what about all the other classifications of certainty between 50+% and 95%?

Are these words as suggested in the U.S. sufficient for the requirements of civil procedure rules like Rule 55 in Nova Scotia?  Are they a sufficient statement of  “the degree of certainty” as required by our courts?

What do you think?  How do we express the degree of certainty to the court?

Do we use words to express the degree of certainty?  If so, what might those different words be to indicate different degrees, steps, stages, classifications, etc. of certainty?  Or do we measure and quantify, and, if so, how do we do this?

References

1. Civil Procedure Rules, The courts of Nova Scotia, Contents of Expert’s Report, Rule 55.04 (2) (c)
2. Osborne, Jack, Personal communication
3. Babitsky, Steven, and Mangraviti, Jr., James J., Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, SEAK, Inc., Falmouth, Mass., 2002
4. Babitsky, Steven, personal e-mail communication, August 19, 2009

I was struck recently by the similarity between investigative journalism and a forensic engineer investigating the standard of practice existing when a structure was designed and constructed.  Also the similarity in the relief felt by both the journalists and the forensic engineer when the investigations are complete.

This occurred to me last Saturday when I read the report in the Globe and Mail about the Globe’s exhaustive, 18 month investigation of the Ford family. (Ref. 1)  I was also checking and reviewing guidelines on the weekend for researching the standard of care existing at the time a failed structure was originally designed and constructed.  This is a forensic engineering method of investigation.

The Globe reported how carefully and thoroughly they carried out their investigations – as they must do, and the efforts to which they went to corroborate their findings.  I can imagine the reporters being sent out “just one more time” to do one more interview, to follow up more lead, to get one more corroboration, and how relieved they were when the results of their investigation were finally published.  “Phew, let’s get onto something else now”

It’s not too much different when a forensic engineer must identify the standard of practice guiding the design and construction engineers for the structure that failed some years after it was built.  Or the structure where a person had an accident years later.

We interview architects, professional engineers and specifiers practicing in the area at the time to determine the standards they follow.  We also identify guidelines and codes existing then and the sources of these, and assess how representative the sources are of the industry.

If there is wide variance in what we find, we speak with more architects, professional engineers and specifiers, identify more guidelines and codes, and assess more sources until we feel satisfied we know what the average is. (Ref. 2, 3, and 4)

Sometimes it takes a lot of e-mails and telephone calls before we get satisfactory corroboration and know the average practice.  I had a Eureka..!! moment three days ago when a source of industry guidelines in Canada in a matter I was investigating was confirmed considerably as widely followed.  Until then I was getting a good understanding of practice in the industry at the time but the ‘average’ wasn’t clear.  Needless to say, I was relieved to see a light at the end of the tunnel like the journalists must have been relieved to see the results of their investigation finally published.

References

1. The Globe and Mail, Saturday, May 25, 2013
2. Association of Soil and Foundation Engineering (ASFE), Expert: A guide to forensic engineering and service as an expert witness, 1985
3. Ratay, Robert T., Forensic structural engineering handbook, Chap. 7, Standard of Care, McGraw Hill, 2000
4. American Society of Civil Engineers (ASCE), Lewis, Gary L, ed., Guidelines for forensic engineering practice, 2003

(This item is an update of a posting on much the same topic on August 21, 2012.  I elaborate some of the themes developed previously – notably the need for better report writing and the resources available to encourage this.  I also suggest that there is an argument for adding skillful report writing to the attributes of a qualified expert engineer)

The need for better expert report writing

Expert’s reports can be written better and there are resources available to encourage this.  The need for better reports will be driven in part by civil procedure rules such as Rule 55 in Nova Scotia, Canada.

Requirements of the rules

These rules require an objective presentation of opinion to the court and a statement of the certainty with which these opinions are held.  Also required is a clear explanation of the reasoning leading to the opinion.  And by inference, demonstration that a sufficiently thorough forensic investigation has been carried out to support an acceptable degree of certainty in the opinion.

Expert engineers in eastern Canada often report on the causes of failure in the built and natural environments – why things fall down or don’t work properly, and the causes of industrial and traffic accidents – why people get hurt.

Skillful report writing a key attribute of a qualified expert engineer

The need for well written reports will give counsel and the courts another attribute by which to evaluate the qualifications of an expert professional engineer.

In fact, an argument could be made for adding report writing to the five widely accepted key attributes of an expert engineer (Ref. 1):

1. Education
2. Training
3. Experience
4. Skill
5. Knowledge
6. Report writing

Some would say that a qualification in report writing is implicit in the basic five attributes but I don’t think so.  Engineers are basically educated and trained to examine, measure and test, and to analyse the data obtained – tasks that are quite quantitative in nature, not literary.

We report our analyses but the reports are often in the form of drawings or number-dense compositions.  Nor are we required often enough to report our reasoning – how we arrived at the numbers.  That’s not report writing to the standard required in an expert’s forensic report.

Rule 55 limits discovery of experts and, by implication, places great emphasis on the expert’s report and, by inference, the standard to which the report must be prepared.

Engineers report easily and well to other engineers but often enough don’t report well to counsel and the court.  For example, our leaps of faith from raw data to opinion are easily understood by other engineers but not so much by counsel and the court.

“The need has skyrocketed for experts with specialized knowledge who can skillfully explain their knowledge (italics mine) and provide relevant opinions.  Experts play a significant role in investigating failures and presenting their findings in court (almost always today in a report).  In addition, plaintiffs, defendants, counsel, judges, and juries are being asked more and more to believe and rely upon opinions of the experts, a phenomenon known as “expert credito”. (Ref. 1)

Rule 55 (Nova Scotia) will promote better report writing and forensic engineering investigation

When I first prepared a report two years ago according to the requirements of Rule 55 I was struck by the potential for this rule to promote better expert report writing,  And, by extension, better, more thorough forensic engineering investigation.  You can’t write a good report unless you’ve carried out a thorough investigation.

Reason for poorly written expert reports  

I have been troubled by the poor composition, unsupported statements, and leaps of faith in drawing conclusions – some that would scare a tightrope walker, that I’ve seen in some experts’ reports.

No surprise given that we engineers and scientists like to measure things, crunch numbers and analyse data.  We are not wordsmiths by nature.  But this doesn’t relieve us of the responsibility to communicate our findings in simple English and to do it effectively.

Not to fault the technical expert too much.  We are not educated and trained to communicate with lay people.  We practice for several decades communicating for the most part with other technical types – no simple English skills needed – jargon only spoken here.  Finally, we are retained in later years for our extensive technical knowledge and experience and presented as experts to the courts – only to find we can’t write and speak simple English to civil litigation lawyers, judges, and juries.

Nor is the civil litigation lawyer – the wordsmith in the process – relieved of a responsibility to confirm that the expert they retain can present their findings skillfully in well written, laymen’s terms.  Confirm that the expert can write so judges and juries can understand.

The role of the expert in the judicial system is to interpret and explain technical material.  One role of counsel is ensuring that he or she understands the report before it goes forward.  Counsel is like a gate keeper.

Being technical is neither an excuse nor the justification for poor writing.  The inability to write well is a career-limiting short-coming (see Ref. 2) – and a potential embarrassment to lawyers, judges, and juries, not to mention the engineer and the scientist.

My experience leading to these views on the state of expert report writing

My experience leading to these views has been with engineering and legal firms ranging in size from sole practicioners to 50 to 75 staff.  Firms located in eastern and western Canada, and overseas in Australia, the U.K., and the Caribbean.

However, my colleague, Gary Bartlett, P.Eng. noted that he experienced a culture in much larger organizations – 200+ staff, that encouraged and required good writing skills, and they achieved this (Ref. 2).  Gary was an electrical engineer with the Canadian air force – air crew, for about 12 years then with the aerospace industry for at least another 25 years.  He still writes reports for the industry.

So, while there is a problem out there, the character and extent of it varies.  It behooves the lawyer in selecting an expert to learn a little something about where his expert is coming from with respect to his skill writing a report.

Resources for expert report writers

CDs and books

I was prompted to write this item on receiving a newsletter from Expert Communications, Dallas, Texas, a few days ago. (Ref. 3)  This firm provides expert witness training tools and other services to experts.

The newsletter announced the availability of a CD on report writing entitled, Expert Report Writing: Effective and Defensible.  The CD is an hour-long teleseminar of a discussion between Rosalie Hamiliton of Expert Communications and Steven Babitsky, president of SEAK, Inc.  SEAK also provides services to experts. (Ref. 4)

Steven Babitsky is formerly a trial attorney and a co-author of Writing and Defending Your Expert Report.  This book is one of the best I’ve read and studied on the subject.  Every expert should be given a copy by their retaining counsel.

Rosalie advised in an e-mail that If you have Steven’s book you don’t need the CD, although they do complement one another to some extent.  But, she says, if you don’t have time to read a book and actually like to get your education via oral and video presentations, then the CD will provide insight into this important topic of report writing.

Critical thinking course

Talking about oral presentations, one of the most valuable experiences I’ve had in recent years, with respect to my practice in forensic engineerng investigation and the accompanying report writing, was to take a course in critical thinking.

This was an intensive, year-long, two, 1.5 hour lectures a week course given by Professor Chris MacDonald at Saint Mary’s University in Halifax (Chris is now at Ryerson University in Toronto). (Ref. 5)  There was considerable emphasis in the course on looking critically at the basis of statements made to us and that we make; What’s the statement founded on?  What are you saying and basing your statement on?  These are critical questions for an expert to keep in mind when writing a report.

The importance of instruction in critical thinking can be gathered from the fact that hundreds of first year students in the liberal arts programs at Saint Mary’s and other universities are required or encouraged to take a course like this.  The course was given by three different professors the year I took it.  My class had about 200 students.

It’s interesting that many universities require first year arts students to take a course in critical thinking.  But don’t require this of first year engineering students.  A serious omission in my opinion.

Experts, regardless of how experienced, well known, and long in the tooth they might be would benefit from a course like this – and their expert reports would be better for it.

But, like reading books, not everyone can take time out to take courses at a university.  I’m beginning to think that on-line sources like The Great Courses can help solve that problem. (Ref. 6)

This firm offers several hundred courses on DVD and CD on a range of topics including critical thinking, reasoning, and writing.  The presentations are good and reasonably priced.  You receive a synopsis of the course with the DVD if you still want to do some reading.  A transcript of the lectures can also be purchased.  Some of the courses are interactive.  I have three of their courses on reasoning and writing and will buy two more for $79 in the next two weeks.

Arguing and report writing

Gaining some understanding of Toulmin logic would also benefit those of us writing expert reports.  I see it as a practical logic as opposed to a formal logic.  Toulmin advocates – analogous with existing practice in law – a procedural rather than a formal notion of validity.  He outlines a way that assertions and opinions can be rationally justified.

His text, The Uses of Argument, is a hard read because of the terminology and style of writing in vogue in the U.K. in the 1950s when he first published his ideas. (Ref. 7)  But, fortunately, you can go on-line and view graphical representations of his ideas which I thought were quite good.  There are also courses and lectures on his methods in simple English.  The illustrations will remind experts in writing their reports of the importance of ensuring their statements are well founded.

There’s no shortage of resources on writing better expert reports

There’s no shortage of guidance and no excuse for not writing better expert reports.  This will be driven by the high standards required by civil procedure rules like Rule 55 in Nova Scotia.  Rules like this will result in the writing of better expert reports and the carrying out of more thorough forensic engineering investigations.

References

1. American Society of Civil Engineers, Guidelines for Forensic Engineering Practice, 2003, Chapter 2, Qualifications of Forensic Engineers
2. Personal communication. Gary Bartlett, P.Eng., VP Engineering, (ret’d), IMP Aerospace, Halifax, Nova Scotia, Canada
3. Expert Communications, Dallas, Texas www.expertcommunications.com
4. SEAK, Inc., United States www.seak.com
5. MacDonald, C., The power of critical thinking, Canadian edition
6. The Great Courses www.thegreatcourses.com
7. Toulmin, Stephen E., The uses of argument, updated edition, 2003, Cambridge
8. Howard, V. A. and Barton, J. H., Thinking on Paper, William Morrow and Company, 1986