When you rely on an expert’s initial hypothesis during the merit assessment stage you rely on a well-founded hypothesis.  In fact, it’s more than a hypothesis – a guess – it’s an initial oral report based on the evidence. (Refs 1 and 2)

The evidence is

• Your briefing on the claim, accident, failure, dispute
• The expert’s experience
• Published data on the causes of failures and accidents in the built and natural environments

You telephoning and briefing an expert on a situation triggers his thoughts of past experiences and also modes of failure as published in the literature for different structures.  He’ll tell you, orally, what he thinks about cause, and it’ll be more than just a guess.

Tell me the issue is foundation subsidence on filled ground and I’ll tell you it’s likely inadequate materials testing and inspection during construction (experience) or inadequate geotechnical investigation (experience plus published research).

Brief me about a slip and fall accident on a wet floor in a dry sauna and I’ll tell you where the water came from (experience).

Tell me a site is still contaminated after an environmental assessment and remediation and I’ll identify three possible causes, one more likely than the other two (experience) .

Other experts in different branches of engineering and applied science can do the same.

There’s some interesting and helpful information in the following on where initial oral reports come from.

1. Your briefing You’ll describe the situation to the expert and report what you know about the claim, dispute, failure or personal injury.  This based on what you have learned from the parties involved, or your understanding if you are one of the parties or represent one.  Your briefing would include the technical issues as you might understand and perceive them.  Also what you believe must be investigated.

The expert will ask questions based on what he’s hearing.  He’ll ensure the Who? What? Where? When? Why? and How? of the situation are answered.  He’ll note technical issues that he might see at this early stage and comment on yours. The expert will sift through your briefing for hard and soft evidence.

Hard evidence might be the size and character of cracks in a damaged wall, the reported findings of an environment assessment of a contaminated site, the rainfall recorded the day of the flood, video of a property taken from a drone or the floor covering in the room where the slip and fall occurred.

Soft evidence might be what the real estate agent told you before you bought the property about how the high, steep slope down to the sea was really stable – only to have a landslide undermine your house later.

In a sense, I took a briefing from news reports a few days ago – quite soft evidence – on the appearance of sink holes in ground near Vancouver and the need to evacuate 14 homes from a subdivision.  Out of interest, based on my experience as an engineering expert, I hypothesized on what was wrong at the subdivision.

One conclusion: The ground should not have been built on in the first place.  Another conclusion: It was built on but something went wrong during the geotechnical investigation and/or the acceptance and implementation of the investigation’s findings.(Ref. 3)

2. The expert’s experience Our experience is grounded in our professional discipline and will include our successes and failures. (Ref. 4).

For example, disciplines like civil, mechanical, electrical and industrial engineering.  Civil engineering has in turn branched off to structural, foundation, geotechnical and environmental engineering.

My discipline and consulting practice has evolved to focus on civil engineering and the civil engineering branches except structural.  I have also practised as a generalist engineer overseeing an investigation and retaining specialists like structural, mechanical and electrical engineers. (Ref. 5)

For example, I investigated the cause of a power tool accident knowing full well at the start that I would likely retain experts in the design and manufacture of the tool.  As it turned out, a video taken of the re-enactment of the accident indicated the likely cause of the accident.

In another problem, I called on a structural engineer to guide my investigation of the stability of a concrete block wall and also the floor beams in the building.  These were elements in the environmental assessment and remediation of a contaminated site, one of my areas of practice.

Experiences like these guide me in advising you during the merit assessment stage. Ask me about problems like these and I should be able to help you.

Tell me it was a concrete block wall that collapsed and I’m sure I can tell you why.  Tell me the size of the cracks in a wall and the component material and I’ll tell you the likely cause of the cracks.  If a structure subsided I’ll tell you the likely cause with great certainty.

If you come to me during the merit assessment stage about the cause of a traffic accident I’m not going to say anything.  I’m going to refer you to one of three specialists in this work depending on the location of the accident.

In the last four or five years right up to the last three or four months I’ve got very suspicious of the quality of Phase II ESAs (Environmental Site Assessments) in the Atlantic provinces.  My suspicions are based on peer reviews I’ve done and experience with a drilling company and comments by the owner.  If your merit assessment involves a problem in the environment my initial oral report will draw attention to the Phase II ESA if one was carried out.

If your problem has anything to do with earthworks, foundations, the subsoils, surface and ground water, flooding, the terrain in general, I’ve got a wealth of experience to call on including education and practice as a land surveyor.  My experience was gained in Atlantic Canada, offshore NS, out west, up north and overseas.

It’s the same with experts in disciplines like mechanical, electrical and industrial engineering.  After a few years the experience is in our gut.  It just comes out during your briefing.  It’s hard to suppress it.

It comes out with considerable confidence too because we know there is a lot of published information that can be reviewed during a merit assessment..

3. Published data The principal modes of failure of buildings and civil, mechanical, electrical and environmental engineering structures and their components have been studied at length and published. (Refs 6, 7 and 8)  Some of the published material is fairly general and leads us in the right direction but doesn’t tell us what’s at the end of the trip. (Ref. 9)  Some other is quite specific and gives us a good idea where to look for the cause of the problem.

Fairly General  Researchers in the US and Europe reviewed the causes of hundreds of structural failures – that’s 100s, plural – and categorized the primary causes as follows:

• Human failure
• Design failure
• Material failure
• Extreme or unforeseen conditions or environments
• Combinations of the above

When professional engineers were at fault (human failure) the causes of failure could be classified as follows:

• 36%…Insufficient knowledge on the part of the engineer
• 16%…Under estimation of influence
• 14%…Ignorance, carelessness, negligence
• 13%…Forgetfulness, error
•   9%…Relying on others without sufficient control
•   7%…Objectively unknown situation
•   1%…Imprecise definition of responsibilities
•   1%…Choice of bad quality
•   3%…Other

When the percentage distribution of the failures were summarized the US and European research found that almost half were due to errors in the planning and design of a structure and a third occurred during construction:

• 43%…Planning and design
• 36%…Construction
• 16%…Use and maintenance
•   7%…Others and multiple factors

For example, I reviewed research a few years ago that found many, possibly most, foundation failures were due to inadequate geotechnical investigation of the ground and foundation soils.  In the above classification, that would be human error – the professional engineer – and the 36% with insufficient knowledge category.

Another example; if you’re got an earthworks failure, like on a highway or in an industrial park, I would look through the 11 different stages of the life cycle of a structure.  Based on my experience I would quickly focus on the materials testing and inspection during the construction stage.  In the above, that would be material failure and the 14% ignorance, carelessness, negligence category.

In a sense, yet another example; it doesn’t help when you’re hypothesizing on cause to know the following but important fact: The National Research Council (NRC) have found that the most complex structure in the built environment is a basement and it’s foundations – not the most glamourous structure just the most complex and rife with potential problems. (Ref. 10)

I can imagine dozens of possible problems down in the basement.  Where do you start looking for a cause?  If no go-to-answer, based on your briefing and experience, it’s important to get this out at the merit assessment stage – in spite of the aggravation.

Quite Specific The American Society of Civil Engineers (ASCE) published a book that categorizes 209 causes of component failure in buildings. (Ref.7)  It’s interesting that the basement was not looked at in detail by the researcher and editor, David H. Nicastro.  I can imagine he didn’t know where to start considering that there are 100s of ways a basement can fail..

The ASCE categorization is a detailed source of information for an expert hypothesizing cause.  To get an idea of this resource, take a look at the blog I posted July 10, 2014 entitled “How many ways can a building fail and possibly result in civil litigation or an insurance claim”. (Ref. 6)  If you’re up for it, take a look at the ASCE publication itself (Ref. 7)

Following are two examples from my blog on how an expert might use the book:  The examples are 2 of 209 ways a building can fail:

The item in red is one of the 209 ways selected from the alphabetical list down the pages of the book.  The items in blue are column headings across the pages.    They note the distress in the building when the failure occurs, the materials affected, and one or more typical case histories.

Example #1, A client’s structure experiences:

• Differential foundation settlement – the way in which his structure failed, the technical cause.
• The distress to the structure is manifested as unwanted movement and distortion.
• The materials and systems affected by this movement are the structural systems and foundations.
• A case history in Nicastro’s book is the differential settlement of the temporary foundation support of a bridge deck during construction.

Example #2, A client’s structure experiences:

• Corrosion – the way in which a component failed, the technical cause.
• The corrosive distress to the structure manifests itself as an unsightly appearance
• Affecting the component’s materials, the metals.
• Case histories in the book include a steel masonry shelf, and reinforcing steel in a concrete wall façade.  Both corroded with the infiltration of rain water.

Brief Summary

This is the kind of published data – 

• exhaustive categorizing of failures, like 209 for a building 
  
• good evidence on the primary causes of failure
• the percentage distribution during the life cycle of a structure, and
• the percentage distribution of errors professional engineers make –

that allows an expert,

• based on your briefing and his experience,
  

to orally report during the merit assessment stage on the cause of a failure or accident or the basis of a claim.  It’s a preliminary oral report, that’s for sure, but more than a hypothesis, a guess.  The expert’s initial oral report comes from good evidence.- your briefing, his experience and published data.

References

1. Merriam-Webster dictionary, on-line, February 2019
2. Cost management of expert services. Posted January 31, 2019
3. What’s wrong with this (sink hole) picture near Vancouver? Posted February 20, 2019
4. Petroski, Henry, To Engineer is Human; The Role of Failure in Successful Design, Random House, New York, April 1992
5. American Society of Civil Engineers (ASCE) Guidelines on Forensic Engineering Practice
6. How many ways can a building fail, and possibly result in civil litigation or an insurance claim? Posted July 10, 2014
7. Nicastro, David H., ed., Failure Mechanisms in Building Construction, ASCE Press, American Society of Civil Engineers, Reston, Virginia 1997 (Readily available by interlibrary loan from Memorial University, Newfoundland)
8. Janney, Jack R., ed., Guide to Investigation of Structural Failures, American Society of Civil Engineers (ASCE) 1979 and 1986
9. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com
10. Swinton, Michael C. and Kesik, Ted, Performace Guidelines for Basement Envelope Systems and Materials, National Research Council of Canada Research Report 199, pp 185 October 2005

I was surprised at the news last week about the evacuation of 14 homes in Sechelt, on the Sunshine Coast near Vancouver because of sink holes and unstable ground.

How a party engages a forensic expert affects how well costs are managed.  The best way is easy.  It involves starting early and reporting often.  It also involves learning about the forensic investigative process the same as experts are expected to learn about the judicial process.  Do this and you and your expert will understand one another.  Frequent reporting is essential to effective cost management..

The following summarizes the best way to manage costs:

• Engage an expert early,
• on a simple fee basis,
• with frequent oral reporting
• on the evidence-to-date,
• the cost-to-date,
• the estimated-cost-to-complete, and,
• if required, a written report.

You’ll go through some tasks several times until you’re done.  It’s easy, and cost management proceeds nicely when you follow this routine. The process is commented on as follows:

1. Engaging an expert early can be as simple as talking with one at the merit assessment stage.  You can’t benefit from an expert’s knowledge until you talk with an expert, and the sooner the better.  If nothing else, brief him on the issue and get his off-the-record thoughts.  Most experts don’t mind giving a bit of time to something like this.

Perhaps engage him more formally to read some documents and/or visit the site.  Do this if the two of you perceive technical issues that could impact the dispute or forensic work and would need to be investigated.

Engage early: You really don’t want to take a case or pay out on a policy if the technical issues don’t support the position of the parties involved, or the parties can’t afford the cost of an investigation.  Experts sometimes see embarrassing situations when we’re engaged late.

(You can engage an expert in about eight different ways.  All the way from getting one to briefly give some factual data without analyzing it to retaining an expert to peer review and analyse the work and written report of another expert you retained earlier. (Ref. 1))

An expert can give a preliminary estimate of the cost to investigate the issues based on other forensic work he’s done – a rough order of magnitude of costs if nothing else.

During your initial briefing and talk with an expert you might also get a feel for the evidence that could be found during an investigation and where it might lead..

In a sense, at the merit assessment stage you’ll get your first oral report on

• the evidence-to-date – the experts initial thoughts on this,
• the cost-to-date – the expert’s charges for reading some documents, and
• the estimated-cost-to-complete – the expert’s preliminary estimate of cost to investigate the issue.

before you’ve even decided to get involved in the issue.

While this is going on, you will gain some understanding of the dispute resolution and forensic engineering investigative processes.  There’s more information in the references on the nature of forensic engineering (Ref.2), the steps in the forensic engineering process (Ref. 3) and the difficulty estimating the cost of forensic investigation (Ref. 4).

At the end of the day, engaging an expert early will enable you to engage with him or her only as long as required by the judicial process and the needs of the parties involved in an issue.  And this decision will be based on good evidence.

2. Engaging an expert on a fee basis is the most effective way of managing the cost of dispute resolution and forensic work.  This is because it’s very difficult to estimate the total cost of this work at the merit assessment stage and should not form the basis for retaining an expert. (Ref. 4) The difficulty estimating costs is handled with frequent oral reporting on cost.

Nor should you pay too much attention to dollar-differences between the hourly fees of the experts you might consider engaging.  The fees of experts in Atlantic Canada are similar as they are elsewhere in Canada and in the New England states. (Ref. 5)  The qualifications and experience of the expert are far more important.

3. Get frequent oral reports on everything found at each stage of the dispute resolution or forensic investigation.  There are many stages in these processes and many opportunities to review evidence and cost. (Refs 3 and 6)

Get your expert’s thoughts

• after you brief him at the merit assessment stage,
• then again after he reads some of the documentation,
• after he takes a look at the site,
• studies all of the documentation,
• does some work at the site
• does some laboratory testing,
• after he does some research,
• after he … well, etc., etc.

and on and on for as many of the stages of a forensic investigation or dispute resolution justified by the evidence..

You’ll talk a lot but you’ll manage the cost of the issue well, based on the evidence-found-to-date, the cost-to-date and the estimated-cost-to-complete the investigative process.  When these line up with the requirements of the judicial process and your party’s interests you’ll bring the forensic investigation to a close based on hard evidence – lots of data plus costs.

4. Evidence-to-date

An expert is collecting hard and soft evidence all the time.  He’s

• carrying out standard investigative tasks,
• following leads,
• journalizing and thinking-on-paper,
• developing a time-line of tasks carried out, why he did them and the data and evidence he got, and,
• ever alert to promising side-lines to the time-line,
• analysing the data and evidence,
• drawing tentative conclusions,
• tweaking his hypothesis as to cause and
• inching closer all the time to formulation of an opinion as to cause or the way forward in a dispute.

You can get the expert’s thoughts and the evidence-to-date at many and minute stages of an investigation.

As well, it may not be well known but the probable cause of quite a few different types of failure and accident in the built environment have been identified and published.   Tell an engineering expert what happened and the damage and, based on published material and experience, we can tell you possible causes. (Ref. 7 for example)

5. Cost-to-date

Experts book their time and expenses daily.  You can get cost-to-date whenever you like and as often as you like.

You can get costs at each stage and task of the forensic investigation and dispute resolution, and each stage of the judicial process.  The expert may not have updated evidence at all stages but he’ll have updated costs and expenses on a daily basis.

6. Estimated-cost-to-complete .

You can also get increasingly accurate estimated-cost-to-complete the forensic work whenever you like and as often as you like.

It’s well understood in project and cost management that the further along you are in a process the more accurate the estimated-final-cost.  This is because the more stages of a project or investigation you complete the more information you have for estimating cost and the more accurate the estimate.

7. Get a written report, if required

At this stage of the process, you’ll have lots of information on which to base a decision about getting a written report.  The sooner you decide the easier it is for the expert to estimate the cost of a written report, and the lower the cost .

Leave it for a year and the expert has gone onto other cases and disputes.  He must come back to your file and review the evidence and everything that took place during the investigation before he can plan and write the report.

I solve this problem to some extent by keeping a detailed time-line on What i did, Why I did it, and The data and evidence I got.

***

There is a very simple and effective procedure for managing the cost of dispute resolution and forensic expert services.  The simple, stepped procedure is easy to follow and not high tech by any stretch.  Some of us are engaged in it now and we like it, and our clients do too.

It starts by

• engaging an expert early,
• going through the simple steps as itemized and commented on in this blog, and
• frequent oral reporting.

It ends when you decide, based on good evidence and the cost-to-date, that the requirements of the judicial process and the parties involved have been met.

The procedure is based on well developed, decades old project management methods..  These methods can be applied to dispute resolution and expert services as shown in this blog.

References

1. How to retain an expert in a cost effective way. Posted November 30, 2018
2. What is forensic engineering? Posted November 30, 2012
3. Steps in the forensic engineering investigative process with an appendix on costs.  Posted July 15, 2013
4. Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2013
5. An expert’s fees and forensic engineering investigation.  Posted July 5, 2016
6. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
7. How many ways can a building fail, and possibly result in civil litigation or an insurance claim?  Posted July 10, 2014

I can’t help but wonder what’s in store for the parties involved in high-tech, sensor-dense, autonomous car accidents.  Compound my wonder with new drivers whose training did not include winter road conditions.  Car dashboards are pretty with all those control lights but I wonder if they instill overconfidence.

(Autonomous cars – cars that drive themselves.  You just sit there and monitor the sensors)

How bad is it?  A friend drives a five year old Honda Accord that has sensors to indicate how close he is to an object when backing up.  We tested and the sensor incorrectly indicated he was about twice as far from my car as measured – 0.5 metres compared to an actual 0.25 metres.

Those sensors from a lower-tech age are quite simple.  What about others designed to keep you from drifting over the line and into the next lane?  The sensing cameras work well when you can see the lines but what about when the lines are covered with snow or dirt?  What about that distracting, warning Ping! Ping! when you’re trying to avoid potholes or drive just off the noisy track worn in the pavement over the years?

What about those braking sensors when you get too close to the car in front?  I’m scared to think what happens when they malfunction..

We’re in high-tech transition and accidents will happen like they did when air bags and seat belts first came out.  They’re reliable now but they weren’t at the start.  I wonder about the reliability of the sensors on today’s high-tech cars..

I thought these questions during a recent meeting of CATAIR, the Canadian Association of Technical Accident Investigators and Reconstructionists.  CATAIR is an association of serving and former police officers, consulting professional engineers and others who figure out how motor vehicle accidents happen.

We got together a few days ago in Moncton, New Brunswick.  We were there for a regular meeting with an agenda that included identifying training courses for the national meeting in Halifax in August, also for a talk by Ed. Goodfellow on drugs and driving.  Ed is Chairman of CATAIR for the Atlantic Region.

CATAIR arranges courses for its members on the reconstruction of traffic accidents.  New courses are sought or developed, or existing courses refined for reconstruction involving high-tech car accidents.  There is a learning curve associated with the refined methods.

I also believe time must pass and data collected to optimize the accuracy of the methods.  The methods are somewhat empirical – based on testing and experience   They rely for their increasing accuracy on test data from investigations – data that is still coming in.  The test data is used to refine the methods.

Some of the technology on new cars is quite advanced so the data for refining accident reconstruction methods must be limited to some extent, like that for airbags and seat belts at the start.

I can’t help but wonder about the increasingly complex disputes and claims that are surely resulting as cars add more sensors.  And the questions that might be raised about the accuracy of the expert’s methods.

Bibliography

1. Reade, M. W. (Mike) and Becker, T. L. (Tony), Fundamentals of Pedestrian/Cyclist Traffic Crash Reconstruction, Institute of Police Technology and Management (IPTM), Jacksonville, FL 2016
2. Civil litigation, forensic engineering and motor vehicle accident reconstruction.  Published September 22, 2015
3. Is your traffic accident investigator well trained, experienced and “accredited”?  Published February 23, 2016
4. “Seeing is believing” at a meeting of traffic accident investigators.  Published March 4, 2016
5. If you  can measure it you can manage it, even if it’s a real mess like a car or truck accident.  Published June 23,, 2016
6. Forensic assessment of traffic accidents.  Published October 26, 2016

I was struck recently by the different ways experts engage with the parties to a dispute or those needing a forensic investigation.  I counted eight (8) different ways in comments by experts I consulted.  Some good and conforming to well regarded project management practices, others not so much.  How an expert is engaged affects how well costs are managed.

(See a list in the Appendix of the different parties that could be involved in a dispute or forensic investigation)

Seeing how it’s done now drove home the need for principles governing the cost management of dispute resolution and forensic investigation involving experts.  I’m identifying these principles and will post them later.

Early last month I sent a draft of the principles to experts and practitioners in different fields and asked them to review it.  These people included colleagues in engineering, traffic accident investigators, several civil litigation lawyers, a town planner and a published author.  I got good comments and suggestions and I’m incorporating these where relevant.

The reviewers’ comments indicated several ways experts engage with the parties to a dispute.  I’ve listed these below.  The methods vary from project management techniques, as characterized by frequent reporting of cost-to-date and estimated cost-to-complete, to methods that risk the expert being perceived as agreeing to a fixed price for his services. There’s not a lot of order to the following list and I’m sure it’s not exhaustive – it’s just an indication of how experts engage with clients in Atlantic Canada::

1. Fee basis after the retaining party briefs the expert, the expert reads the documents and then estimates the cost of the forensic investigation.  Frequent updates on current costs and estimated cost-to-complete.
2. Fee basis.  No reporting.  No cost estimate.
3. Engage for the budget set by the retaining party, after learning the budget and the party’s theory of the case.
4. Fee basis if the client has taken the case on a fee basis.  Declines the commission if the client has taken the case on a contingency basis.
5. Fee basis and frequent oral reporting to the party on the findings at successive stages of the forensic investigation, and after being instructed by the party to carry out each stage of the investigation.
6. Fee basis after all investigation is complete and all damage repair and remediation is done and all costs accurately known.
7. Fee basis for preliminary investigation like reading documents and a visual examination of the failure or accident site sufficient to estimate costs for subsequent stages.  Then do successive stages as directed by the retaining party.
8. Fee basis plus frequent reporting of current and estimated future costs.

This list begs the question:

• Why the parties to a dispute or forensic investigation don’t engage with an expert early,
• on a simple fee basis,
• with frequent reporting of the evidence-found-to-date,
• the cost-to-date, and
• the estimated cost-to-complete?

If how an expert is engaged affects the cost of dispute resolution and forensic work then the bulleted procedure is effective – engage an expert early and get frequent oral reports on everything.  And engage an expert only as long as required by the judicial process and the needs of the party.

Appendix

Parties to a dispute or a forensic investigation can include one or more of the following::

1. Advocates and civil litigation lawyers
2. Insurance company representatives
3. Claims managers and consultants
4. Insurance adjusters
5. Owners of damaged property
6. Builders and contractors
7. People injured in accidents in the built and natural environments

You can consult with an expert in five (5) different ways, from least expensive to most expensive, according to the technical needs of an insurance claim or civil litigation.

If you include peer review of your expert’s work or that of another party’s expert – good insurance – you can consult with an expert in nine (9) different ways. (Refs 1, 2)

The first way – a preliminary factual oral expert’s report – is the best way to start and involves very little of the expert’s time.  I gave a preliminary report recently based on 1.5 hours of my time.  You can upgrade later if justified by the evidence.  A preliminary report is based on:

• a client briefing,
• a document review and
• a virtual visual site assessment or walk-over survey.

Judiciously selecting the best way is one key to managing the cost of claim adjustment or civil litigation.  You still got to manage your costs as distinct from the expert’s costs. (Ref. 3)

These different methods are described below.  And there’s a nice, five-item list at the end to help you see how easily the different methods follow on one another.

You must think about how and when you retain an expert because most failures in the built environment are small or medium-sized, not catastrophic and newsworthy – and not affluent either. (Ref 4)

Yet, regardless of case or claim size, most failures and injuries require a thorough engineering investigation consistent with how the expert is retained and what s/he is asked to do.  You can always start small and expand the investigation as.the evidence comes in, if this seems justified.

Peer review of the expert’s work, regardless of how she’s retained, is not so necessary, not one of the basic ways, but it is good insurance – and cost effective for that reason alone. (Ref. 1)  It’s done in science as a matter of course – a forensic investigation is carried out to the same standard of care.

***

In the past, experts have been retained in one of two ways:

1. Consulting expert
2. Testifying expert

Today and in the future – almost without exception – experts will serve as consulting experts in the resolution of disputes rather than testifying experts.  This is because of changes in civil procedure rules governing experts.  The changes are designed to expedite resolution of disputes and reduce the number of cases going to trial.

(I attended Expert Witness Forum East in Toronto in February, 2019 and gave an invited talk on the principles governing cost control involving experts. (Ref. 3) I learned that 98% of cases in one area of dispute were settled out of court.  I can’t remember the area but know it wasn’t engineering and science.  Nevertheless the great majority in these fields, percentages in the mid-90s, are also settled out of court)

The consulting expert will submit one or the other of the following two basic reports according to a client’s instruction.  Ideally, these reports would be submitted at several stages throughout an engineering investigation, starting at the preliminary assessment stage, to keep the client informed as to what the evidence is finding and the cost to date:

1. Oral consulting expert’s report
2. Written consulting expert’s report

The oral report can also be presented in one of two ways:

1. Factual oral consulting expert’s report
2. Interpretative oral consulting expert’s report

A factual report gathers together all the data from the office, field, and laboratory investigations and submits the raw data to the client – without analysis and interpretation.

It’s used now in the science and engineering fields.  For example, in the geotechnical investigation of ground and foundation conditions at a proposed construction site.  I was introduced to this type of reporting while practicing in Australia and England for several years.  It’s used a lot over there.

An interpretative report analyses the raw data, draws conclusions and formulates an opinion on the cause of the failure or accident.  The report can be quite comprehensive, particularly in a complicated case.

The cost of a factual oral report is easier to estimate and control.  The cost of an interpretative oral report is more difficult.  Sometimes very difficult because you don’t know what you’re going to find at the site of an engineering failure or accident if you follow-the-evidence. (Ref. 5)

A factual oral consulting expert’s report to a client could be quite inexpensive compared to a written report to the requirements of civil procedure rules governing experts.  A peer review of the factual oral report could also be relatively inexpensive.  The peer might discuss the facts with the expert – orally – and the investigation supporting these.

For example, I gave a factual oral consulting report on a power tool accident.  I did this after I videotaped the victim reenacting the accident and after the tool was examined for wear but before investigating the adequacy of the design and manufacture of the tool.  Counsel decided against further investigation based on my factual oral report.

Other examples: A colleague who reconstructs traffic accidents said he frequently gives oral reports on his findings.

Similarly, an interpretative oral consulting expert’s report could be relatively inexpensive with or without a peer review compared to a written report.  More expensive, of course, because of the interpretative element, but still less than a written report.

The written report can also be presented in one of two ways:

1. Factual written consulting expert’s report
2. Interpretative written consulting expert’s report

The relative costs of these two ways of writing a report on a forensic engineering investigation are apparent – less for factual and more for interpretative, and a little more still for peer review of either.

A summary of sorts

So, the cost of retaining an expert increases from least expensive – a preliminary factual oral consulting expert’s report without peer review, to most – an interpretative written consulting expert’s report with peer review.

It’s no surprise that an interpretative written expert’s report is one of the most expensive if it’s remembered that “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. 6)

And, I might add, turn questioning and rebutting the report, before discovery, into a cakewalk, a tsunami, if the report is distributed to all parties.

How you retain an expert – there are five (5) different ways – is one key to reducing the cost of all insurance claims and civil cases, affluent and less affluent alike.  You can’t lose, if you manage your own costs properly, as I’m sure you do, with so many cost effective ways to retain an expert.

And, like I said above, possibly the best way of all: Briefly talking with an expert at the insurance claim or case merit assessment stage.  Retaining an expert at this stage, for a few dollars, would be like a preliminary factual oral consulting expert’s report.  This is the most cost effective way of all and the best return on money spent on an expert; possibly even better than peer review.  You can always do additional engineering investigation, if justified by the evidence.

Here’s how the different ways of retaining an expert appear in a list, from least expensive to most expensive:

1. Preliminary factual oral consulting expert’s report (at the insurance claim or case merit assessment stage aided and abetted by a virtual visual site assessment and walk-over survey)
2. Factual oral consulting expert’s report
3. Interpretative oral consulting expert’s report
4. Factual written consulting expert’s report
5. Interpretative written consulting expert’s report

A bit repetitious but I think helpful in deciding how to retain an expert in a cost effective way.

I did not include testifying expert in this blog because this role for an expert is much less likely in future – a few percent at most across all areas of dispute.

References

1. Eureka! Peer review is good case insurance. Posted November 16, 2018
2. How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system. Posted May 1, 2014
3. Principles governing the cost control of dispute resolution and claim settlement involving experts. Posted November 30, 2018
4. Principles Governing Communications with Testifying Experts, The Advocates Society, Ontario, June, 2014
5. Reducing the cost of forensic investigation – it’s being done now by default not by plan. Posted September 22, 2014
6. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report, Preface, Page xiii, SEAK Inc., Falmouth, Mass. 2014

Bibliography

1. Peer review in forensic engineering and civil litigation. Posted November 26, 2013
2. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada November 30, 2018 ejorden@eastlink.ca)

(Updated March 19, 2021)   

Peer review of an expert’s work is good case insurance against a summary  investigation, a careless analysis of the data, invalid conclusions and/or a poorly formulated opinion on cause.  And if all’s good, then it’s good insurance against delay in resolving the dispute and taking up the court or tribunal’s time.

And if a forensic investigation was omitted then peer review and identification of the technical issues is good insurance if the review finds you’re out on a limb – it’s nice to know where you’re at if you’ve got to backtrack.

(Summary as in “done quickly in a way that does not follow the normal process” – not thorough. Ref. 1)

By definition: Peer review is a process by which work (such as a scientific or engineering study, investigation or report) is checked by one or more experts in the same field to make sure it meets the necessary standards before it is published or relied on. (after Ref. 1) It can be as simple as getting an independent expert to simply read the report of the investigating expert.

Also by definition: Insurance is a means of guaranteeing protection against loss.  For example, “The peer review is your insurance against the loss arising from a summary forensic investigation or no investigation at all.”. (after Ref. 1)

I reflect on the above when I learn of failures and accidents in the built and natural environments that are well beyond the case merit assessment stage without benefit of an expert’s insight.  Not even a reading of the documents and a walk-over survey of the site – relatively quick and inexpensive forensic engineering tasks..

I had the Eureka! moment recently when I was following up on the status of a case after consulting with an advocate on the need for an expert to look into the matter.  Initially we discussed the circumstances of the problem and confirmed I was qualified to investigate it.  I was remiss at the time in not inquiring about the stage of the civil litigation.  I was surprised during my follow-up to learn that the case was in discovery.

Oh boy, what to do this late in the game?  I found myself typing my last sentence in an  e-mail suggesting peer review –  it just came out of the blue, the Eureka! moment – “Peer review is good case insurance”.

I know about peer review in forensic engineering but never thought of it as insurance.

***

By way of refreshing your understanding of peer review in forensic investigation you might read one or more of the blogs listed below in the references that I posted in the past.  They’re all quite informative, if I do say so myself, particularly Ref. 4 on peer review costs.  If nothing else, that one could save you money in litigation involving experts.  My blogs are also well referenced to the engineering and scientific literature on peer review so lots of good reading there too.

References

1. Merriam-Webster dictionary, November 10, 2018
2. Peer review in civil litigation and civil litigation. Posted November 26, 2013
3. Peer reviewing an expert’s report ensures the justice system gets what it needs. Posted January 15, 2016
4. Peer review costs can be controlled. Posted January 22, 2016
5. Peer review pays off – 17 years later. Posted May 5, 2018

(There’s take-away insight in this item for Advocates at the case merit assessment stage, particularly in Appendices 1 and 2.  The simple data there plus conferring with a forensic engineer can help you assess the technical merit of a case)

***

Right away, three engineers had similar thoughts about the cause of the Morandi bridge collapse August 14 in Genoa, Italy :  My friend, Paul Gunson, Adelaide, Australia, in an email a few days ago, friend, Reg Crick, Halifax, during a chat, and me. (Ref. 1)  Paul drove under the bridge in 2009.

Take your pick of causes from a survey of these people:

• Water,
• QC,
• Maintenance,
• Water

If that’s not enough, I’ll tell you a little secret below about how designers tweak – some might skimp-on – the factor of safety.  (Actually, it’s good engineering not skimping but you need an informed public to understand that)

(QC as in Quality Control during construction and Water as in Lots of Water)

Paul did some research and found that the Morandi bridge and one other showed serious rusting of the steel reinforcing – too much water and too little maintenance  The concrete cover was spalling in some areas and exposing the steel to the weather.  There were also reports of concrete that was way below the specified strength – too little QC.

I did quite a lot of quality control of concrete and earthworks in the past and Paul’s findings resonate with me.  Quality control and maintenance are not very glamorous and often get the short end of the stick.

In a blog several years ago, I added quality control and maintenance to a list that I saw of the stages in the life cycle of a building or civil engineering work – to increase the total to 11.  There’s no questions they are stages where failure can occur.  Ignore them at your peril. (Ref. 2)

Almost the first thing Reg said when we chatted about the bridge in Italy, “Get rid of the water!! (Stupid!!)”.  Reg didn’t say “Stupid!!” but that was the tone. (Ref. 3)  He was referring to proper drainage of the water from the bridge deck that isn’t provided for during bridge design.  Drainage design isn’t very glamorous.

Reg noted another mutual friend Bill Waugh, who designed dozens of bridges in Nova Scotia and Jamaica before he passed away, despaired at the inattention to deck drainage during bridge design.  Water rusts exposed structural steel..  There’s an element of maintenance in this as well; keeping deck drains – when they are present – clear of debris so the water can drain.

I wondered when I first saw the bridge failure why successive spans of the bridge went down after the first one?  Was that continuous span of bridge deck over successive piers designed to such a low factor of safety – in the interest of looking slender and pretty – that a span relied on adjacent spans for some of it’s support?  And when one span goes down, like dominoes many go down?  But in hindsight I realized that proper design of bridges like this one might in fact rely on adjacent spans, but perhaps too much.

A tweaking engineering design secret: In engineering design the factor of safety is reduced – confidently whittled away – with increasing successful design and construction, and no failures.  Until the pendulum swings too far, failure occurs, the pendulum swings back.and the factor of safety is put back up.  This really does happen in design. (Ref. 4, pages 100, 101. A very good read)

(The factor of safety is a number got from dividing the weight you want to support safely into the greater weight that will break the thing providing the support – cause it to fail)

If you want to know more about when and where failure occurs and who is responsible – a broader picture – see Appendices 1 and 2 below.

It’ll be a while before we know why the bridge in Italy failed but the smart money is going down on over confidence during design and poor deck drainage and maintenance.  And no way can I leave out poor QC during construction.  Any takers?

***

There’s food for thought for Advocates in this item.  Buildings, civil engineering works and infrastructure fail in many ways, and some of these are an easy first pick for a forensic engineering expert at the merit assessment stage.  And failure doesn’t have to mean total collapse of a building, – or a bridge like in Italy – but simply that it doesn’t work right.  The bridge probably didn’t work right for years, like in poor deck drainage.

Poor design, construction and maintenance can also injure people, for example, in slip and fall accidents on floors with low skid resistance.

What’s the take-away for Advocates?  You’ve learned that when a failure occurs in the built environment or a person is injured experienced engineers are suspicious of what took place at certain stages in the development of a structure.  Our suspicions are backed up by independent and detailed studies by researchers in the U.S. and Europe of 100s of failures.

Taken together – our experience as engineers and these studies – we have a good idea where to look for cause.  If you don’t consult an expert at the merit assessment stage you risk technical failure of your case.  

References

1. Personal communication, Paul Gunson, Adelaide, Australia, 2018
2. Stages in the “life” of a structure helps communication between counsel, insurance claims managers and engineering expert. Posted July 2, 2015 (See update Appendix 1)
3. Personal communication, Reg Crick, Halifax 2018
4. Petroski, Henry, To Engineer is Human: The Role of Failure in Successive Design, Vintage Books, New York April 1992,
5. International engineering magazine publishes information on foundation engineering in eastern Canada – and also information useful to counsel on the causes of failure.  Posted January 4, 2013  (See Appendix 2)

Appendix 1

(The following was taken from Reference 2 above and updated)

You might be interested in the updated list below of the stages in the “life” of a structure in the built environment.  Structures include earthworks and waterworks – a reshaping of the natural environment – as well as buildings and bridges.

I came across the basic list while reading the latest, 2012 edition of Guidelines for Forensic Engineering Practice.  I added the stages in italics to those in the Guidelines.  The list is a useful breakdown of the aging of a structure.

The Guidelines were published by the American Society of Civil Engineers (ASCE).  Civil engineering includes structural engineering and geotechnical engineering.

I see the list providing context and facilitating communication between counsel, insurance claims managers and consultants, and an engineering expert.  Failures and personal injury accidents can occur pretty well any time during the life of a structure.

Principles governing communication between counsel and expert have been developed recently by The Ontario Advocates’ Society. (Ref. 2)  The following list of stages in the life of a structure will further help counsel and an engineering expert talk to one another when a failure or personal injury accident occurs:

1. Conceptualizing
2. Planning
3. Designing
4. Constructing
5. Quality control (during construction)
6. Operating
7. Maintaining
8. Renovating
9. Re-configuring
10. Decommissioning
11. Demolishing

ASCE say that, “Failure can be defined as an unacceptable difference between an actual condition or performance and the intended or reasonably anticipated condition or performance.”  This can occur during any stage in the life of a structure.

Furthermore, “Failure need not involve a complete or even partial collapse.  It may involve a less catastrophic deficiency or performance problem, such as unacceptable deformation, cracking, water- or weather-resistance, or other such phenomena.”

It’s not difficult to imagine that failure can occur at any stage.  Nor that personal injury accidents can occur at any stage.

Communication is easier for both counsel and client and counsel and engineering expert if we all have an idea of a structure’s “life” and the stages it goes through as it ages  The list above can help us.

Appendix 2

(The following was taken from Reference 5 above)

An article entitled “The expert witness and professional ethics” reports on the categorizing and classifying of the causes of structural failure as determined by researchers in the U.S. and Europe.  This research reviewed the causes of hundreds of failures.  Based on the research the primary causes of failure were categorized as follows:

• Human failure
• Design failure
• Material failure
• Extreme or unforeseen conditions or environments
• Combinations of the above

When professional engineers were at fault (human failure) the causes of failure could be classified as follows:

• 36%…Insufficient knowledge on the part of the engineer
• 16%…Under estimation of influence
• 14%…Ignorance, carelessness, negligence
• 13%…Forgetfulness, error
•   9%…Relying on others without sufficient control
•   7%…Objectively unknown situation
•   1%…Imprecise definition of responsibilities
•   1%…Choice of bad quality
•   3%…Other

When the percentage distribution of the failures were summarized the research found that almost half were due to errors in the planning and design of a structure and a third occurred during construction:

• 43%…Planning and design
• 36%…Construction
• 16%…Use and maintenance
•   7%…Others and multiple factors

I reviewed research a few years ago that found many, possibly most, foundation failures were due to inadequate geotechnical investigation of the foundation soils.

This type of information based on what appears to be quite exhaustive research is valuable to a forensic engineer in forming an initial hypothesis of failure at the beginning of an investigation.

The information is also valuable to Counsel in assessing whether or not to take a case or gaining an appreciation of where a forensic investigation may be leading based on initial oral reports by the professional engineer investigating the cause of the failure.

I was struck by the news report a few days ago about the man getting a face transplant, particularly the five years the surgeons and medical docs planned such a daunting operation. (Ref. 1) It reminded me about a case I had a while ago, albeit less difficult by comparison, and months of planning not years.  Nevertheless, I had that daunting feeling too.

Maurice Desjardins’ face was damaged by a bullet during a hunting accident.  He couldn’t close his mouth property and had holes in his face for a nose, and breathed through another hole in his windpipe.  Surgeons tried rebuilding his face with conventional plastic surgery over the years without much luck.

Then Dr. Daniel Borsuk came along, “un magician du visage” (a magician of the face), in his mid 30s and full of youthful piss and vinegar, and after five years of planning – Success.

Dr. Borsuk plus 8 other surgeons, 5 anaesthesiologists and 100 other medical, nursing and support staff performed two operations at the same time that had to end within minutes of each other.  The one operation removed the face of the brain-dead donor and the other transplanted the face before it died.

The operating rooms were so busy looking in news reports that it seemed no one moved unless they all did.  It reminded me of my smallish kitchen when five friends are in it each preparing a different course for dinner.  When one has to move to get something from the cupboard; we all have to move.

So, why am I telling you this?  How does a face transplant relate to forensic engineering?  It relates because some forensic investigations also take a lot of planning to know where you’re going.  Not years but sometimes many months and that can be scary because time is money in civil litigation.

The news report made me think of a case I’ve got that contains six different investigation, design and construction specialties.  They are as diverse as lifting a structure off its foundations and setting it aside to chasing an elusive material across a site, quite literally.

Where do I start in dealing with such a problem?  And how do I estimate the cost of the different specialties to guide the way forward when not a lot of experience exists in the area, certainly not all under one roof.  And for the one specialty, the magnitude of the problem is not known until you start chasing it.  How do you estimate the cost of something like that?

I’m getting on top of this case as the months go by, fortunately not years but still long and difficult. I had that daunting feeling when I started and was reminded of it when I saw the news report.

I thought of another case involving repair of the old foundations of a structure founded on sloping, filled ground that is still subsiding and shifting after about 40 years – not a sinkhole like in oxford, N.S. but almost equally challenging in the uncertainly that had to be confronted.  The main problem was repairing the foundation and supporting the structure safely while accommodating future ground movement and conforming to the standard of care.

Fortunately I remembered a case report from years ago about providing jacking points in the support for a structure underlain by compressible foundation soils.  I also conferred with a friend in Australia, Paul Gunson, who dealt with a similar problem beneath a railway line. (Ref. 2) Paul’s innovative solution included grout and rubber blocks for foundations.  The way forward was clearer.  Still, lots of non-textbook problems to solve and solutions to implement.

Two or three other engineering cases come to mind as i write.  It’s interesting, that the difficult, many month-long ones concern the ground and Mother nature, unknown, unforgiving quantities that don’t lend themselves to neat, quick and easy textbook solutions.  I’ve known about the tricky ground for decades and the planning that is necessary.

For certain, “the magician of the face” knew about tricky plastic surgery and that he was operating at the cutting edge of face transplanting when he started planning years ago.  A friend of mine, a retired ear, nose and throat surgeon, told about repairing a throat one time damaged by a chainsaw – a suicide attempt – and another repair, a windpipe pierced by a 2″ diameter stick.  Where do you start?

It’s a good thing that engineers and surgeons like to have a problem to fix and one to look forward to.

References

1. Canadian Broadcasting Corporation, CBC,  and other news’ reports, week of September 9, 2018
2. Personal communication, Paul Gunson, professional engineer, Adelaide, Australia, July 18, 2018

C’mon, really? It’s true, as I found out a few days ago during a meeting in Moncton.  I was told about a small drone fitted with a camera that could take vertical, aerial photographs above the site of an engineering failure, a slip and fall accident or a traffic accident and do this within Transport Canada’s regulations.  For that matter, the site of any personal injury.

I was at a meeting of CATAIR, the Canadian Association of Technical Accident Investigators and Reconstructionists.

Transport Canada’s strict regulations considers any drone weighing less than 250 grams a toy.  The Zerotech Dobby Pocket Selfie drone weighs 219 grams fitted with a battery and a 4K HD camera and costs about $350 Cdn – just a toy.  For a look-see and demonstration, Google ZEROTECH Dobby Pocket Selfie Drone FPV With 4K HD Camera  

I can imagine carrying one of these around – almost in your pocket – during a visual assessment of a site like we carry a carpenter’s tape now.  Maybe they’ll be standard issue in the future in the tool kit of forensic engineers, civil litigation lawyers, claims managers and others concerned with a site that has a problem.

The kid’s toy Dobby drone doesn’t take good quality aerial video, which I rely on during my forensic investigations – it’s not fitted with a gimbal –  but it does take inexpensive vertical photographs quickly.  These would be photographs a little like those we engineers used to take of a site from the raised bucket of an excavator or a boom truck.

(A gimbal is a device that keeps a camera level and minimizes vibration.  The basic device has been known for centuries – but it’s not on the toy Dobby because it increases the weight and cost)

Frame grabs of single photographs of the ground from good quality aerial video are easy to get like those from a toy drone but aerial video takes more time to organize and process and is more expensive.

I plan to compare the quality of vertical photographs taken with a toy drone of a site I’m investigating now to that of a frame grab from an aerial video.  I’ll wait till the leaves fall from the tree-covered site so we can see the ground better.  I’ll let you know how they compare..