It’s good for the judicial process and the injured party if you let us know if you’ve worked with experts in the past.  We catch on soon enough.  Get it out in the open at the start.  It’s also good for managing the cost of civil litigation.

Simply say, “I haven’t needed an expert before but do on this case”.  We all got to learn so it’s okay.

We can help you understand what’s involved in forensic investigation, what we need to do to be Rule 55 compliant (Nova Scotia) and how to manage costs.  Help you understand the investigative process that we must adhere to – our profession’s guidelines – in the same way experts are expected to have some understanding of the judicial process.

I’ve been blogging to that end for 5.5 years – to help you understand – and it’s paying off if reader feedback is any indication.  Still, some of you are a hard sell and cases go south for want of understanding.

I chide you about this because it’s important to get it out on the table.  I can help bring you along in this new relationship as you would me in understanding the civil litigation process.

I thought to suggest this after reflecting on some embarrassing exchanges over the years – another just recently – and not just with younger counsel.  One senior partner in a firm didn’t know that expert’s reports are sent via email today.  You could hear his silence over the phone.  Another estimated the total cost of a forensic engineering investigation at less than the invoiced cost of preliminary work.  Still another didn’t know that experts invoice on completion of individual stages in a forensic investigation, not for several stages in advance.

Don’t wing it.  Get it out there if you are relatively new to this.  You will learn how to work with an expert and control the cost of your case better.

I was retained to investigate the cause of an accident involving the plaintiff using one of his tools.  People have been killed using this type of tool, it’s that dangerous.  The plaintiff believed there was a defect in the tool.  Graphic photographs of his injuries would certainly lead you to believe that – an initial hypothesis.

I was asked to peer review a report by another engineer and to examine the tool for wear sufficient to cause the accident.

The other engineer reported test-using the tool but, as evident in his report, not during a re-enactment of the accident.  He found a few things wrong with the tool but nothing to suggest it was defective.

I was surprised that the engineer did not re-enact the accident considering his stated years of experience investigating accidents.

I reviewed the report, researched howhis  the tool operated and examined the exterior.

I video taped the plaintiff re-enacting the accident and recorded his explanation of how he was injured.  I had him do this three times just to be sure and video taped his demonstration from different angles.

Evidence from the video and the interview was quite revealing as to cause but questions arose when this evidence was considered in light of evidence from the graphic pictures of the plaintiff’s injuries.

I retained a tool repairman to dismantle the tool and visually examine the interior surfaces for wear and defects.  He found nothing.

At this point in my investigation:

• The nature of the injuries depicted in the pictures suggested one cause
• The re-enactment suggested a different cause
• The tool operated properly according to the repairman, supporting the different cause

The tie-breaker – justifying modifying the initial hypothesis on cause – were comments by the plaintiff during his interview on how he was using the tool coupled with how the tool operated.  Turns out he was using the tool in the most dangerous way, but one of several ways it could be used.  Also turns out that the material he said he was using didn’t exist as he described, except as a special order.  A similar, readily available material suited to the job he was doing could explain the contradiction raised by the graphic pictures.

To summarize the tie-breaking bullets:

• The plaintiff said that he was using the tool in the most dangerous way, supporting the different cause noted above
• The material he probably was using could explain a contradiction in the graphic injury pictures, also supporting the different cause

Based on the evidence, I modified my initial hypothesis that a defect caused the accident to believing that the plaintiff caused the accident by his actions when using the tool in the most dangerous way.

***

A spoiler?  As noted above, the plaintiff reported using the tool in the most dangerous way.  But, on being retained, I was given the tool rigged to be used in one of the safest ways.  This might have spoiled my modified hypothesis, but didn’t – the tool had passed through at least four sets of hands by the time I got it.

My client decided against further forensic investigation.

***

Design, manufacture/construction and maintenance/repair are three main stages in development and use of an item in the built environment, like a tool.  My investigation covered maintenance/repair when assessing if the tool in this incident was defective.

Retaining experts in design and manufacture to examine the tool would be a stage in a forensic investigation like this.  However, taking this step would not be justified considering the strength of the modified hypothesis and the cost of experts in design and manufacture.

My investigation several years after the incident cost money.  It would have cost less, as would the civil litigation in general, if I could have interviewed the plaintiff several days after the incident, or after my client took the case, and video taped him re-enacting the accident.  I’m certain the evidence from such simple tasks would have cast the merit of the case and the worth of the file in a quite different light.

Case take-aways

My take-away from this case is to get my iPhone out of my back pocket and video tape a re-enactment of an accident ASAP and have the victim describe it.  It might be rough – iPhone forensic video – but this quick and dirty stuff can pay dividends in a forensic engineering investigation.

My client’s take-away? Possibly an old saw – retain an expert early preferably during the merit assessment stage or a few days afterwards and save money on civil litigation.

Sinkholes, like the one that undermined the house in Falmouth, Nova Scotia last week, are a serious issue for subdivision and lot developers.  As reported in the newspapers, the risk of sinkholes forming in an area can be known from published maps. (Refs 1, 2)  And the cavities in the ground associated with sinkholes can be found – before construction.

Sinkholes start their life as roofed-over cavities at some depth in the limestone, gypsum and salt deposits beneath an area.  The cavities get bigger and the roof gets thinner as rock like this dissolves in the ground water.  In a sense, the cavities “migrate” to the ground surface and eventually break through as sinkholes.  The fairly precise size, location and depth of cavities can be determined beforehand.

The technology for locating cavities in rock is well developed and has been around a long time.  It’s called ground penetrating radar, GPR for short, and it’s well known to experienced geotechnical engineers.  I used GPR years ago to locate cavities beneath an airport runway on South Andros Island in the Bahamas.  The same technique is used for locating unmarked graves.

It sounds technical but all it involves is sending radio waves into the ground and analysing what is reflected back.  There’s nothing too exciting in the data that comes from uniform soil or intact rock.  But lots of excitement in the data from a cavity, a well-recognized anomaly to the GPR operator – and a potential sinkhole beneath a building. The remote sensing, non-intrusive technique is not unlike CAT scans and MRIs in medicine.

The type of potential sinkhole I was looking for at the airport is called a banana hole. So named because banana plants grow in the sinkholes once the cavities break through the surface.  A banana hole/sinkhole can be seen in the runway by an inbound pilot but not the roofed-over cavity just before it breaks through the surface.

Geo engineers investigate the adequacy of the foundation soil and rock conditions beneath a site where someone wants to build something – like a house, for example, or a bridge, dam, or airport runway.  The conditions would not be adequate if there was a cavity beneath the building site.

GPR would not normally be used on a building site in the Atlantic provinces, nor in Canada for that matter.  But it certainly should if deposits of limestone, gypsum and salt are noted when the engineer checks the published geology of the site – an important and standard task in a geo investigation.  These types of rock with their inherent risk are not so common but they do exist as noted in the news report on the Falmouth sinkhole.

If there’s a risk and the technology is available to quantify it, and it’s not used, then it seems to me it’s a potentially litigious matter.

References

1. Falmouth: Sinkhole wrecks family’s house, pg. 1, The Chronicle Herald, Halifax, Tuesday, September 5, 2017
2. Geological conditions: Sinkholes not unusual in N.S.: Scientists, pg. 1, The Chronicle Herald, Halifax, Wednesday, September 6, 2017

The following blogs – and good reference material in some – will help you manage the cost of civil litigation involving experts.  Careful management is necessary because most cases are small or medium sized not big – “less affluent, not affluent” to reflect comment by The Advocates Society, Ontario. (Ref. 1)  Yet lawyers must still prepare before going to trial (Ref. 2) and experts must investigate before giving an opinion – regardless the size of the case.  Proper preparation and investigation can be expensive.

These blogs describe things you can do to keep tabs on costs.  Some ideas echo the principles followed in the well-developed field of project management.  Several suggestions, like the following, stood out as I reviewed my postings of the past five years:

• Retain an expert early
• Retain one according to your needs – by one count, 10 different ways
• Confer with s/he often
• Work together to identify the key technical issues that must be investigated

There are a number of helpful suggestions in the following list in addition to the bulleted ones above.  The chronological list also gives some idea of how my insight has developed over the years.

The list of blogs gives the title in bold and the date I posted it so it’ll be easy to locate on this site, the one you’re on – www.ericjorden.com/blog   I’ve reviewed each recently and added a comment on some of the ways each posting can help you – read my comments if nothing else:  There’s something for everyone in the following list.

1. “Technical” visual site assessments: Valuable, low cost, forensic method.  Posted September 4, 2012 … A good read on the cost effectiveness of a simple visual assessment by an expert of the scene of a failure or accident.  Have this done before detailed investigation is begun – ideally when you assess the merit of the case and the worth of the file.  It’ll save money.  The blog includes examples from my practice, some of which show the value of this inexpensive method before an advocate actually decides to take a case.  I know of one case that such an assessment would have saved the luckless client many 1,000s of dollars (I was retained late in the case to peer review the forensic investigation).
2. Steps in the forensic engineering investigative process with an Appendix on costs.  Posted July 15, 2013 … A detailed outline of the tasks in forensic work with brief comment on the difficulty estimating cost taken from a previous blog.  A must-read for non-technical people who must confer with experts.
3. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2013 … Another must-read.  Examples taken from my files illustrate the difficulty.
4. (Fairly easy) Estimating the investigative cost of a catastrophic engineering failure.  Posted August 13, 2013 … The pictures of this failure are amazing!  Also my concluding remark considering the magnitude of the failure shown in the pictures: “So, estimating the cost of investigating the cause of a catastrophic failure is not always difficult.  And, if you don’t mind, estimating the cost of investigating a simple failure is not always easy.” 
5. Managing the cost of civil litigation.  Posted September 19, 2013 … Outlines a detailed, stepped process for managing costs.  Based on principles from the well-developed field of project management.  The process is characterized by frequent updates on cost-to-date and estimated cost-to-complete, for both legal and expert involvement in a case.
6. How to manage the cost of civil litigation.  Posted October 4, 2013 … A good read with lots of ideas.  An update of a previous blog that expanded the section, “Why must cost be managed?”  Contains a list of helpful references.
7. Reducing the cost of forensic investigation – it’s being done now by default not by plan.  Posted September 14, 2014.  You may see your actions reflected in this blog.  An insightful read.
8. Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2013 … A must read.  A good, detailed review of what engineering experts are up against when attempting to estimate the cost of the different tasks in a forensic engineering investigation.
9. “If you measure it you can manage it” – and do thorough forensic engineering and cost effective civil litigation.  Posted June 18, 2015 … A real good, short read and helpful in cost management.
10. “Expensive” experts are not so expensive compared to the cost of key technical issues going undetected.  Posted December 8, 2015 … Contains good advice from noted and respected authorities in the legal profession.  Also lessons learned from a few cases I’m familiar with.
11. Peer review costs can be controlled.  Posted January 22, 2016 … A good read on managing the cost of civil litigation costs by how you retain an expert.  See at least 10 ways if you count retaining an expert at the case merit-assessment stage or as a testifying expert.
12. Cost control in civil litigation.  Posted September 8, 2016 … Some blunt comment on managing costs in a suggestion to APTLA (the Atlantic Provinces Trial Lawyers’ Association) to hold a conference or include a session on managing the costs of civil litigation involving experts)
13. Keynote speaker on cost control in civil litigation.  Posted September 22, 2016 … A follow up suggestion to APTLA on how to organize a conference on cost management of civil litigation involving experts that would include keynote speakers from both the legal and expert communities.
14. Managing the cost of civil litigation when experts are involved.  Posted March 19, 2017 … Explains a low cost method of doing this – basically, counsel and expert meeting very early in the case and talking about the technical issues.  If possible, investigating one or two technical issues certainly results in less expensive civil litigation than investigating several.  Examples from my files of cases that went well, and one case – not so much.
15. Conference call on a “drone flight” reduces the cost of civil litigation.  Posted May 18, 2017. (Also see a blog posted March 31, 2017) … I’m getting a lot of cost effective evidence with unusual investigative techniques.  For example, with aerial video and photography from a low flying drone.  Also learning the source of water at a slip and fall accident site by taking a cold shower at the site.  And measuring the skid resistance of a floor with a piece of pig’s belly.  Advocates and experts must be receptive to non-textbook tricks in the interest of managing the cost of civil litigation.
16. “A rose by any other name…”; Primers for lawyers.  Posted December 19. 2016 … An insightful blog inspired by a lawyer’s comment at an APTLA conference last November. (Ref. 2)  He was right on the money.  A lawyer must prepare before going into court and an expert must investigate before giving an opinion – and this can be expensive.  A good blog on a client’s need to know.
17. An expert’s fees and forensic engineering.  Posted July 5, 2016 … An indication of the average hourly billing rates for professional engineers in the Atlantic provinces for different levels of experience and responsibility.  Rates not too much different than lawyer’s fees.  Knowing these helps in managing the cost of civil litigation.

 References

1. The Advocates Society, Toronto, Ontario, Principles governing advocates communicating with testifying experts, June, 2014.  Posted June 11, 2015
2. Pizzo, Ron, Pink Larkin, and his comment “…lot of preparation beforehand – a lawyer just doesn’t walk into court”.  APTLA conference, It’s all wrongful: Death, Dismissal, Conviction & More, Halifax, November 4, 2016

I was impressed a few months ago by the unexpected evidence I got from video of a site taken from a drone.  Impressed to the extent that I flew another site a few days ago, but this time looking for the “unexpected” evidence.  The experience confirmed the importance of filming the site of a forensic investigation from a low flying drone.

A few months ago I videotaped a compact site – couple of 100 feet square – for record purposes.  I did this for 35 minutes from several 10s of feet. On looking at the video I saw a feature of interest relevant to the problem I was investigating.  It was not evident when I walked across the site in an earlier visit.

Talking with the property owner later I learned that the feature seen in the video marked a characteristic of the ground that was very important to understanding the problem I was investigating.

A few days ago, I video taped a long, narrow site – 1,500 ft. x 200 ft. – from an altitude of several 100s of feet as well as 10s of feet.  This time, however, I looked for a feature in the video that I had seen on the ground at one end of the long site.  It was relevant to the problem I was investigating.  I found it, then studied the video for the occurrence of the feature elsewhere along the length of the site and noted these locations. This was sort of the reverse of the situation at the compact site.

Put another way, a few months ago I identified a feature of interest in a video, and had it confirmed on the ground.  A few days ago I identified a feature of interest on the ground and had its location elsewhere on the site confirmed with a video.

***

This process is called terrain analysis in engineering:

• You identify the different features at the ground surface appearing in aerial photographs,
• note the characteristics of the subsurface implied by the shape and look of each of the different features,
• then assess how these subsurface characteristics relate to one another and to the problem you’re investigating.

For example, how does the strength of the subsurface soils relate to the foundation failure of a building, bridge or highway?  Or the subsurface drainage characteristics relate to the location of fuel oil spilled on the ground some time in the past?

I’ve done terrain analysis for years using aerial photography often taken from 6,000 feet – a long way up.  It has been useful – but not at all, at all like the detail you get from low level drone photography.

***

The drone videotaping at the compact and long sites was similar.  Take orientation video from the four sides of the site from a high altitude then close up video of different features at a low altitude.

I’ll study the video of the long site in greater detail then select optimum places on the ground – representative and cost effective – for collecting subsurface data and solving the problem I’m investigating.  The data won’t really be “unexpected”.  I’ll get what I expect to get – the depth to the water table, and water and soil samples for testing.

The unexpected evidence a few months ago reminded me about the value of aerial photography in forensic engineering investigation, and the greater value today of low level, drone photography.  I was also reminded to be on guard against the tyranny of the obvious, to expect the unexpected in forensic work.

I blogged for different reasons the past five years (see Ref. 1 for a good read) including simply liking to write, expressing myself that way.  I also belong to a group that could be characterized as a story-writing and -telling group.  Chronicling a forensic investigation is telling the story of the investigation – a good and simple way of explaining it to the judicial system.

But I’ve realized even more lately that striving to blog well, write well, partly out of respect for my readers, trains me in another way:  To think and analyse on paper, formulate an opinion then present it in a well-written expert’s report.  And it’s so effective when you get to the word processor stage after the cursive writing stage.

I’m in the middle of analysing data now on two cases and formulating opinions.  It will go on for a good few days yet as I turn the data over in my head and squeeze the truth of each matter out on paper – also as more data comes in from follow-up investigations.

There’s a lot implied in the words forensic engineering and a lot of writing is involved at some stages:

• Investigate the cause of a failure or accident
• Examine and observe
• Measure and test
• Analyse and assess
• Draw conclusions
• Formulate opinions
• Present reliable evidence to counsel and the court or tribunal in simple, non-technical English in well-written, experts’ reports

Reaping the benefits of writing/blogging is not unique to me nor is it new.  Journalizing in some form as a means of working things out – e.g., your thoughts – drafting a talk or preliminary report, noting an item to remember – has been around a long time.  I carry a journal with me most times to capture a thought along the way (I don’t like to dictate to my cell phone because of security issues)

It’s just that it’s not so very technical-sounding – thinking on paper – even though it has an important role in the different stages of forensic investigation.  I like to think, “I knew that!”, the benefits, but the penny did drop and make a louder noise recently.  I thought I must tell you this.

References:

1. Why do I blog on forensic engineering investigation? Posted July 22, 2016.

Monitoring the clean-up of a fuel oil spill in 2000 paid off early this year.  The pay-back was the recent opening of a file at the Nova Scotia DOE based on records I kept that confirmed the residential property had been cleaned up.  I was retained at the time to ensure the remediation conformed to good engineering practice – peer review.

(By contrast, the benefit from peer review in civil litigation – quality control of the thoroughness and objectivity of the forensic investigation – is immediate, rather than years later. Refs 1, 2 and 3)

A DOE file on a residential property is normally opened after fuel oil spills and closed on receipt of a report that the property has been cleaned up.  It was missing in DOE’s files as the property owner – my client 17 years ago – learned in anticipation of selling his property.  Buyers and sellers both want assurance that a property is clean and that comes from DOE’s files.

My client asked and I confirmed that I had a copy in my files of the final report by the engineering firm who did the remediation plus all my field notes and photographs taken during my work.

Why the usual file was missing 17 years later is not so important to my story – except to draw attention to the worth of peer review.

The story began in early 1999 when my client smelled oil in his home.  Investigation by a consulting engineering firm at his neighbour’s property uphill found that a 200 gallon furnace oil tank had leaked an unknown quantity of fuel oil.

The firm supervised the remediation of the property.  This involved locating and excavating the contaminated soil and removing it from the property.  Some soil was also excavated from my client’s property.

My client, a retired professional engineer, wasn’t so happy with the firm’s recommendations for remediating his property.  At his request, the insurance company retained another consulting engineering firm to do an independent assessment – in a sense, the start of the peer review process.  This was done and their assessment was accepted.  The second firm then went on to direct remediation of my client’s property.

My client was still uneasy because of the two sets of consulting firms and clean up operations on adjoining residential properties.  He retained me to monitor everything that took place on his property.

Remediation of fuel oil spills is fairly simple in most cases in the Atlantic provinces relying as it does on the scientific method and basic engineering.  It just looks difficult because it’s messy.  Remediation involves:

• Learning the location of the oil or where it might have drained,
• Sampling and testing the soil and ground water for oil at those locations,
• Removing soil that has too much oil by acceptable standards, and,
• Replacing the contaminated soil with clean soil.

Possible locations are identified by:

• Characterizing the drainage pathways of the subsurface soil – the medium that the oil will flow across and through – often, simply contouring the surface of the ground, and,
• Also determining how foundations are constructed on a site that might be affected by soil that has too much oil.

An analogy: Spill water on your house floor, and in mopping it up you look where some of it has drained because you know the floor is almost level, but not quite – the character of floors.  And you clean it up because the floor might be damaged by the water if it’s not.

***

Peer review is checking that something has been done to an acceptable standard.  We often associate it with review of a report – check that it’s well written and that the data has been analysed according to scientific principles.  It can involve confirming that the forensic investigation was carried out to an acceptable standard and the data is reliable.  Peer review can also mean checking that something is being done properly as it’s being done – the situation at my client’s properly.

“Hot tubbing” might be thought of as a form of mutual peer review – experts from different parties in a civil litigation case gather round in a meeting and review each other’s report.  It’s increasingly accepted as a case-expediting and cost management technique. (Ref. 4)

In my case in 2000 I was on site full time to note what was done and that it conformed to good practice, to independently measure and photograph the clean-up as it progressed, attend site meetings and report daily to my client.

In general, the work was done very well, and good records kept that saved the day 17 years later.  There was one issue about the need to construct a groundwater monitoring well – a way of checking for oil in groundwater over time, oil that we don’t want.  This resulted in independent investigations, reports and opinions – including my own.  There’s always a few issues that are resolved by experienced engineers talking.

***

Peer review cost my client money.  But it would have cost him an awful lot more money if he tried to sell his house and the word on the street was of an oil spill on the property and no records were available that it was cleaned up properly.

It’s not too much different in civil litigation.  A cost up front for peer review of a forensic investigation, or a much greater cost later when rebuttal of an inadequate investigation and a poorly written expert’s report is turned into a nightmare. (Refs 3 and 5)

References

1. Peer review in forensic engineering and civil litigation.  Posted November 26, 2013
2. Peer reviewing an expert’s  report ensures the justice system gets what it needs.  Posted January 15, 2016
3. Peer review costs can be controlled.  Posted January 22, 2016
4. Biased experts cured with a soak in the “hot tub”.  Posted January 31, 2017.
5. Mangraviti, Jr., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, the Preface, SEAK, Inc, 2014

Aerial video of a failure or accident site taken from a drone is one of the lowest cost, lowest technology tasks ever in forensic investigation.  And one of the best ways of getting and presenting evidence.  Like $285 for 34:41 minutes of video on one of my recent investigations.

And if you like, yours could be taken with a GoPro camera, like those on an Alpine skier’s helmet, borne aloft on a Walmart drone.  I’ve seen GoPro-Walmart quality video of a P.E.I. beach scene taken by a hobbyist and it was good.

My aerial video is taken by a photographer who does contract work for CBC (recently on assignment getting Canadian 150 year birthday video) with multi-thousand dollar equipment, for the Walmart charge-out fee, and his footage of my forensic sites is excellent.

It’s also a feel-good task as well as low cost, simple technology.  You’re seeing the site in a different and revealing way.  You know you’re getting lots of valuable data captured on 1,000s of frames for study of any one or more later.  You can even measure features on these frames by placing large “rulers” on the ground in different positions before your flight – simple “ground control” in land surveying jargon.

I was prompted to mention this when a reader remarked that he didn’t think his forensic investigation needed high tech aerial video of an accident site.  (It doesn’t, based on his description of the site, but this kind of technology came out in a remark of mine about different engineering methods)

He could be excused for thinking like that, particularly in light of the recent, front page Globe and Mail coverage of the new, much-needed DOT regulations governing recreational drone flights.  The regulations are strict and penalties severe if you don’t abide.

They are needed when you learn how quickly you can climb hundreds of feet – and into a plane’s flight path.  Or zip around a multi-story building – and into a closed window.  In fact, think stings-like-a-bumblebee because that’s the speed and faint background sound you get as you videotape a failure or accident site.  My professional photographer abides of course.  We have been for a couple of years since he started taking low cost aerial video of my forensic sites.

The take-away from this is the valuable data you get with low cost, low tech aerial video – and feeling good and having fun while you’re getting it.  The photographer flies the drone while you direct the video coverage from the “co-pilot’s seat”, a flight monitor on a tripod nearby.  This technology is certainly not applicable to all investigations as my reader noted but valuable when it is – and an impressive way of presenting evidence to the judicial system.

(Hello: Read some of the blogs below, for sure, #5, to get a feel for the valuable expert data possible with a low cost aerial video of your site)

References

1. “Crewing” on a forensic drone flight.  Posted October 4, 2016
2. U.S. civil litigation lawyer on using air photos in environmental litigation.  Posted November 18, 2015
3. Fixed wing drones – another tool in forensic engineering investigation.  Posted November 4, 2015
4. New forensic aerial photographic method proving extremely valuable.  Posted January 30, 2015
5. A picture’s worth a 1000 words, possibly many 1000s in forensic engineering with a new aerial photographic technique.  Posted January 15, 2014 (See frames from a demonstration drone flight in this posting)

Forensic investigation of the cause of a failure or accident in the built environment doesn’t always require an exhaustive investigation of conditions at a site.  And civil litigation doesn’t always need to bear the attendant higher costs.  Sometimes but not always.

There is a point at which the cost of the data obtained and the time required to get it outweigh the benefit of the data, the increased certainty of the opinion and the quicker resolution of a dispute.

The answer is early involvement of an expert in consultation with counsel.  And the two working together to identify the key technical issue(s) in a case.  It works best when counsel seeks to understand these issues early and rises to his responsibility to explain them to the judicial system. (Ref 1)

I’ve had some cases that settled in a heart beat after the investigation of a single, simple technical issue.  One case settled in four months after 11 years of litigation.  There have been other investigations that have been longer and more expensive.

There is a judgement call on the necessary level of investigation.  Should this technical issue be checked out or that evidence followed – as in the seemingly cast-in-stone edict, “Follow the evidence”?  The call is best made by an experienced expert and a suitably informed counsel.  The cost of civil litigation is often less when this is done wisely and well.

It also sometimes helps if counsel visits the site and “gets his hands dirty and mud on his boots” – sees what’s out there and some of the investigative work being done and why. (Refs 2, 3)  I know of one slip and fall accident that was cinched because counsel came to the site, sat down and watched me work.  In this case, carrying out two quite unusual tasks that carried the day.

Cutting costs can’t be done in a cavalier manner.  I’ve seen this happen too and the injured party likely get the short end of the stick in one case.  Litigation is expensive, and reliable, expert data costs money, but it can be managed.  It doesn’t always need to be exhaustive.

***

These thoughts came to mind a few days ago when I was reviewing the principles governing Phase II ESAs (environmental site assessments) as given in an ASTM standard. (Ref. 4) These environmental assessments have strict requirements.  I know, I’ve done them – but there are some “that do not … require an exhaustive assessment”.   When I read that in the standard, I was reminded: That’s the way it is in forensic engineering investigation.

References

1. Principles governing communicating with testifying experts.  The Advocates’ Society, Ontario, June 2014.  Posted June 11, 2015
2. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
3. Counsel: Your case benefits when you visit the scene of a personal injury or engineering failure.  Posted April 30 , 2016
4. ASTM E1903-11 Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process, ASTM International, West Conshahecken, PA, 2011

What’s an expert to do?  Should he tell or no?  Should he make a point of telling the advocate where the technical issues are going if this might not be a good place for his case compared to where it’s at now?  Should he say if the initial hypothesis as to cause needs modifying or rejecting completely.  Would the expert be perceived as biased if he did this?

The expert serves the judicial system but he is retained by the advocate.  The system wants justice for all parties.  The advocate wants a win for his party.  These conflicting interests can cause problems for the expert.

I see this problem occasionally.  I thought of it when I posted last week’s blog and commented there about where the technical issues might be going. (Ref. 1)

Would an expert be seen as biased if he saw that the technical issues were changing and wanted to alert the advocate to their increasing lack of compatibility with his argument?  And if the expert keeps investigating, it’ll only increase the cost of the investigation to no avail to the advocate but still to the judicial system.

Frequent reporting in the spirit of updating an initial hypothesis is the answer, and relying on a technically, reasonably informed advocate to ask questions.  Even encouraging him/her to get like that.  I understand the system requires the advocate to be informed of the technical issues and be able to explain these to the system, so the structure’s in place to keep this problem in check.

Reference

1. The cause of an oil pipeline leak is an easy call for a forensic expert.  Posted February 23, 2017