Subtitle: Climate change for intelligent people

(Following is a guest-blog by Gary Bartlett, P.Eng. on global warming.  I’ve added a few introductory remarks relating Gary’s concerns about what is being reported in the popular media to forensic engineering investigation)

Introductory remarks: Global warming and forensic engineering 

A forensic engineering investigation of whether or not global warming is taking place might resolve the matter once and for all.

The scientific method underlies both the forensic engineering investigative process and the scientific investigative process.  A difference is that the results of a forensic investigation are closely examined in a court of law and rejected if found wanting.  On the other hand, the results of a scientific investigation, as sometimes reported, might not have received the same kind of exacting scrutiny.

This is particularly the case if the ‘scientific’ investigation is more in the nature of junk science serving the interests of the reporter rather than science.  Or the results of the science are modified to reflect the personal interests of the scientist or his/her employer.  Or simplied by the media with their sometimes questionable motives.

Articles in the Globe and Mail, Saturday, February 23, 2013, are relevant.  The one by Elizabeth Renzetti on the muzzling of government scientists, page A2.  A second by Margaret Wente on the questionable effect of global warming on the polar bear population, page F2.

Forensic engineering investigation must collect evidence – and follow the evidence where it leads, in resolving an issue objectively and with certainty.  The opInion of a forensic engineer is judged in a court of law for its objectivity.  The certainty with which the opinion is held is also solicited of the forensic engineer in assigning weight to the engineer’s results and opinion.

In a forensic engineering investigation, we form a hypothesis based on what we know, develop and carry out tests of the hypothesis, and, based on the results, confirm, modify, or refute the hypothesis (Ref. 1, 2, 3, and 4).  We carry out more tests of a modified or a new hypothesis.  An exhaustive implementation of that process solves the problem in most cases, if it can be solved, and enables an objective opinion to be rendered with considerable certainty.

G. Dedrick Robinson and Gene D. Robinson III don’t seem to believe that process has been followed to completion yet in an evaluation of the fact or otherwise of global warming.  For example, they believe that evidence such as the history of the earth has not been considered properly in an investigation of global warming.  They state their views in their book, “Global warming: Alarmists, Skeptics, and Deniers; A geoscientist looks at the science of climate change“.

If this is true – that the scientific method has not been rigorously followed in evaluating the fact or otherwise of global warming, it’s a serious omission.  The evaluation would not stand up to the most gentle of cross examinations in a court of law never mind the aggressive examination to which the results of a forensic engineering investigation are sometimes subjected.

What have Robinson and Robinson found in their look at the science of climate change that would not be tolerated in a forensice engineering investigtion?  Some of their findings are reviewed below in a guest-blog.

References

1. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation 1989
2. ASCE Guidelines for Forensic Engineering Practice 2003
3. Steps in the forensic engineering investigative process.  Posted October 26, 2012
4. What is forensic engineering?, published, November 20, 2012

(The following guest-blog of a recently published book on global warming has been contributed to The Forensic Engineering Blog by Gary Bartlett, P.Eng**)

Guest-blog: Climate change for intelligent people

A)     INTRODUCTION

I think that most of us understand that we need to be somewhat careful about believing everything that we hear and read.  Nonetheless, the media seem destined to accept verbatim the pronouncements of those with vested interests in perpetuating myths about the climate with little or no attempt being made to validate what they are told.  The result is a never-ending stream of terrifying pronouncements worthy of Chicken Little based on no science or on junk-science or on deliberately manipulated statistics.  That kind of stuff can wear a person down and truly cause one to wonder if maybe *they* are correct.  Well I was getting nervous, in any case.

Herein is an attempt to dispel some of the myths regarding climate change.  It is based on a 2012 book entitled “Global Warming: Alarmists, Skeptics & Deniers; A Geoscientist looks at the Science of Climate Change” by G Dedrick Robinson and Gene D. Robinson III, available from http://www.amazon.com/Global-Warming-Alarmists-Geoscientist-ebook/dp/B0070YUCXE.

The major attributes of this book are:

a)      The authors do not enter any debate with those with other agendas, whether they be political or economic or media-driven.  This book is a discussion of science as it impacts the climate of Earth, no more and no less;  and

b)      Conclusions reached in this book are based on scientific fact, historical data;, measurable trends, and peer-reviewed information.

B) PURPOSE

My purpose in summarizing the major facts contained in the reference is simply to encourage others to maintain a certain amount of cynicism when reading information found in the media on the whole topic of global warming.  If what one reads is not, or it cannot be, supported by science, then it’s best to move on.

C) BOOK’S MAJOR POINTS

Here is my attempt to provide a précis of the major conclusions – all fully supported in the book to which I have referenced – which should cause most people to take and maintain an open mind whenever they hear prognostications on the topic of global warming.  Readers owe it to themselves to obtain the book and read the detail to substantiate my summary.

1)      OMG, we are in a period of climate change!  Guess what: there has never been a steady state in climate since as far back as science has been able to infer temperatures.  By no means can current changes in temperature be described as even slightly unique or unusual.  Ignore the term entirely when heard used with the adjective *alarming*.

The more that one drills down into the details of planet temperature variations, the more that temperature variation profile begins to resemble a fractal.  Trying to forecast the future based on the nano-dimensioned period of, say, 50 years of temperature records is roughly equivalent to trying to estimate the shape of Halifax Bedford Basin from close examination of a foot-wide section of beach at the foot of the Dingle Monument a few miles away.   At high tide.

2)      The Greenhouse effect will kill us?  Yes, there is a greenhouse effect.  It has been known about for centuries.   Unfortunately one hears the term in a negative sense, but it is exactly the opposite.  Without the greenhouse effect (it prevents solar heat from escaping back into space), this planet Earth would be entirely frozen and life would have never developed.  The major controlling criterion (95%) that governs the extent of the greenhouse effect is water vapour, not carbon dioxide.  Doubling the current amount of carbon dioxide is equivalent to less than a 2% change in the amount of water vapour.

3)      Carbon dioxide is a pollutant?  That’s a strange way to view the product that all human life produces with every exhalation.  It is even tougher to accept that negative connotation when carbon dioxide is of absolute fundamental criticality to photosynthesis.  Plants demonstrate proportionally better results in an enriched carbon dioxide environment.  While carbon dioxide may be increasing in the atmosphere (although blaming that rise on humans is grossly unfair), current carbon dioxide levels are roughly 1/10 of what they have been for most of the history of the planet.

4)      Huge amounts of carbon dioxide are released from the burning of fossil fuels?  Well, huge is a relative term, but fossil fuels as a carbon sink amount to a total 4,000 GigaTons whereas limestone as a carbon sink is estimated at 100,000,000 GigaTons.  Carbon that enters the atmosphere from natural sources such as animal respiration and from the weathering of limestone greatly exceeds anything that humans are doing.  One needs to study the system which processes and then circulates carbon dioxide around the planet (it is a closed system with a turn-around time measured in years!) to provide a better feel for how much guilt is really appropriate for you to feel after committing the sin of using the remote control to start the car and letting it warm up at idle on a winter morning.

5)      Earth’s temperatures are being driven up by increases in carbon dioxide?  That would indeed be unique since well-established history over millions of years shows that temperature increases (periods of global warming) were followed by increased levels of carbon dioxide, not the other way around.  In the current scary environment, cause and effect are mistakenly being employed backwards.

6)      Global temperatures are rising?  Not for the past 17 years.  See  http://www.thegwpf.org/ipcc-head-pachauri-acknowledges-global-warming-standstill/.

7)      Computer models are the answer?  No, computer models are not (yet, if ever) the answer.  The planet is a huge system which defies modelling to the degree at which confident predictions are credible.  Most forecasts of impending climate horror are coming, not from a scientific analysis of historical facts, but are generated by  inadequate models which suffer from many unknowns when they try to manipulate the data and peer into the future.  Some of the unknowns in their algorithms are very critical in determining the final outcome of a climate predictive computer run.  That is, a tiny change in the estimate of any one constant in the algorithm can cause huge variations in the resulting conclusions.  The track record of general circulation model predictions of the past give no cause for confidence in their ability to predict the future, yet they are being heavily relied upon in the popular press (while more meaningful geophysical history is ignored),

8)      Data and graphs tell the story, right?  No, that’s not right.  It is appallingly easy to manipulate data to support a forgone preferred conclusion by taking it out of context, or by playing with X- and Y-axis scaling, etc, just to identify too common distortions.  Numerous well-known public presentations show conclusions that are not peer-reviewed and are not true except in the sense that they have been carefully selected and/or carefully presented or are specifically defined in words intended to deceive — all so as to support the position the presenter has espoused.  Run, if anyone uses the word “correlation”.  Here we need the rigour of science from respected sources.

9)      Ice; Two problems:

1. All the ice in the world is melting?  Everyone talks about the melting of all the Arctic ice to the north of Canada as if that were the end of the story; no-one talks about an off-setting gain in ice near the south pole; and
2. We shall die from rising sea levels? The sea level is rising already and has been for 18,000 years.  The rise has been three-hundred and fifty feet so far over that period, and the world and the planet are coping.  If all the ice in the Arctic were to melt and add to the oceans, the rise would be not be very exciting because most of the northern ice fields are already floating on water.  If the Arctic ice were to melt, the oceans do not rise any more than does the water in a glass of sarsaparilla after the ice-cube melts. [The opposite is true of Antarctica but the ice pack is building there]

D) GRATITUTOUS ADDITIONAL COMMENTS

The writers of the book from which I have been so freely cribbing, did not say any of the following things.  They are mine.  They are based on the qualifications that I claim below (which when added up amount to nearly zero):

1. Sun spots: Historical geophysical data would suggest that the climate (temperature) of the planet is greatly affected by sun spots.  Current data suggest that the planet could be entering into a period of back-to-back low 11-year sunspot cycle periods similar to what is known as the Maunder Minimum which had been observed centuries before.  Since good High Frequency communications propagation is directly proportional to the number of sunspots, this tentatively predicted period represents a prolonged bad-news situation for the amateur radio operator.    It may also be bad news for the planet since global temperature can be shown as being related to the quantity, location, and characteristics of sun spots.
2. The Maunder Minimum:  The many scientists among amateur radio operators who specialize in propagation prediction have access to all known recorded history of sun spot numbers which they analyze for recognizable repetitive patterns.  Others plot the data against the planet’s temperature, and if history repeats itself as perceived from these patterns in these consolidated plots, there is a case to be made that the next equivalent to the Maunder Minimum will result in less heat reaching earth from the sun.  Because of fewer sunspots (which are hotter than the normal sun’s surface temperature), that will see the planet grow colder to the point that the earth could enter a mini ice-age.   Freezing to death with no one to talk to is an unpleasant thought.
3. History   A big contributor to the problem associated with current reactions to “global warming” is that people do not read history.  Big storms are nothing new.  A hurricane in Newfoundland in 1775 killed four-thousand (4,000) people.  It made Hurricane Sandy look like child’s play. The term “monster” does not truly apply to Sandy when considered against previous storms.
4. Complicity People do not want to admit their own contribution to the catastrophic destruction that follows relatively common weather events.  The severe damage from Hurricane Sandy was caused by bad human decisions when the consequences were easily predictable.  Channels to incoming seawater waterways had been narrowed, thereby exacerbating tidal surges;  private residents happily built things on known flood plains;  condos and apartment buildings and businesses installed emergency generators and their control panels  in their basements.  And so it goes.

**Author’s Apology

**Gary Bartlett, P.Eng. is not a geoscientist, astrophysicist, meteorologist, nor does he know anything about those hard topics.  The closest he can come to claiming smarts in those areas is that he knows a guy – a long-time friend, who specialized for years in consulting geotechnical and environmental engineering, and now practices forensic engineering (Eric E. Jorden, M.Sc., P.Eng.).  Oh, but Gary has faithfully watched professional weathermen Monty, Rube, Peter and Kailin on CBC-TV.

Gary Bartlett, on the other hand, does recognize well-written material with a thorough bibliography from respected sources, he does understand the significance of terms such as “peer-reviewed”, and he does value the demonstration of the proper scientific method as taught by UNB BScEE 1962-67.  [His essential cynicism can be traced to a career spent exclusively in the aerospace industry, but that’s a different topic]

He really, really hopes that readers of this blog will buy the referenced book (see more about the author in the attached, below) to find out all the other encouraging fact-based peer-reviewed science that is collected there.  And it’s an easy read, too.  To top it off, Gene Robinson is personable and cooperative, too.  To my surprise, he responded quickly to my request that he review the above précis of his book for accuracy, and his reply caused me to repair a couple of incorrect statements, and allowed me to  strengthen others.  I release it with confidence.

Attachment:

From FORBES

http://www.forbes.com/sites/sap/2013/02/08/the-world-in-2033-big-thinkers-and-futurists-share-their-thoughts/.

The World In 2033: Big Thinkers And Futurists Share Their Thoughts

On Global Warming: Gene Robinson

“Twenty years ago, alarmists were already predicting calamitous effects in the near future from a warming planet due mainly to petroleum and coal combustion. The 1990 best-seller Dead Heat painted a nightmarish picture of our world in 2020-2030 when the temperature would average six or seven degrees greater. The first IPCC reports of 1990 and 1995 supported such scary scenarios, giving them an aura of scientific respectability. What actually happened is that the mean global temperature since 1993 increased about 0.2 degree C through 2012 with most of that occurring in the record year of 1998, at the peak of a thirty-year warming trend. Since then, the global temperature has plateaued with no clear trend up or down. Because the flattening is at the high point of a warming trend, each year has to be among the warmest recorded years, as the media tirelessly trumpets. What a convenient way to mask the fact that although CO2 has continued to increase, temperature has not, in spite of the computer models.

What, then, can we project for global warming in 2033? Instead of the abrupt warming that alarmists always say is about to start, my rather cloudy crystal ball says global temperature is more likely to continue showing no clear trend or to be at the beginning of a cooling trend. Alarmists will continue to blame every severe weather event on climate change and to oppose all energy projects except solar and wind. All studies supporting the alarmist view will continue to be publicized in the liberal media while all studies reaching conclusions in opposition will be ignored. Liberal politicians will still support schemes to tax carbon by trying to scare people of what will happen without them, even as the skepticism of ordinary people continues to increase. Grants will still be doled out to scientists whose previous results supported the politically correct view while proposals from skeptics go unfunded. In short, just as little has changed with regard to the politicizing of the global warming theory in the last twenty years, little is likely to change in the next twenty.”

Dr. Gene D. Robinson is Professor Emeritus at James Madison University in Virginia and author of Global Warming: Alarmists, Skeptics & Deniers – A Geoscientist Looks at the Science of Climate Change, available at Amazon and most book stores. He is also the publisher at Moonshine Cove Publishing, LLC.

Subtitled: Counsel, what part of “No” can’t you pronounce? 

(This is an update of an item posted in 2012 – see Ref. 2, as part of a series on the role of a professional engineer assisting counsel in civil litigation – see Bibliography below) 

We all must decline a case sometime, in engineering and in law, in the best interests of the injured party and ourselves.  We don’t always do that – say “No” when it’s in order.

For certain, we would decline because we believe the party doesn’t have a case, or we don’t have time to handle.

But, we must also decline because the problem is outside our area of expertise.  Or we don’t have sufficient expertise yet in an area we would like to practise.  Including the expertise to project manager the case that would be argued by more experienced counsel or professional engineers. 

I am investigating three failures and accidents now that were referred to me by two well experienced professional engineering colleagues who felt, on being contacted by counsel, that the problem was outside their area of expertise.  They were correct in this regard and it was professional of them to recommend another.

I do not take cases where the failure or problem appears to involve mechanical or electrical engineering.  Nor cases where a traffic accident has occurred involving a collision between two or more vehicles.  I just don’t have qualifications or experience investigating and analysing the cause of these types of problems.  

However, I would take a case where the traffic accident involves a structure on or near the highway.  For example, the Rankin fatal motor vehicle accident that appeared to involve a pile of salt on the highway – a structure to an a engineer.  Or a fatal step ladder accident that appeared to involve a defect in the step ladder – also a structure to an engineer.  

I take cases that involve the failure of a structure or damage to a structure, particularly those cases involving the foundations, also cases involving environmental contamination, flooding, and drainage.  

It’s important when recommending another professional engineer or lawyer that you have specific knowledge or experience of the person being recommended in the area of expertise required.  Recommending someone carries considerable responsibility.  There are some individuals and organizations that don’t recommend people in the event the recommended person doesn’t work out.

I’ve worked on three cases where I wondered about the experience of counsel in civil litigation.  In two cases it seemed like open and shut cases for the plaintiffs but they lost.  In one of these, relevant engineering investigative data, that had been reported to the plaintiff, did not seem to get presented in a timely manner to the defense, as noted by the judge.  In a third case, the plaintiff was near the discovery stage when it was realized that relatively expensive engineering investigation was needed that couldn’t be justified by the possible award. 

We must say, “No”, when we are evaluating whether or not to take a case if it’s outside our area of expertise in law or engineering, and only recommend another lawyer or engineer if we have reliable knowledge of our colleague’s expertise. 

Original post

(I’ve made small changes to hopefully make it easier to read)

Civil litigation tentatively begins when counsel meets with a potential client.  The purpose is to gather information to help him or her assess the merits of the case and decide if he should take it.

A professional engineer could have a role in this meeting, or in consultation shortly afterwards.  This is particularly the case if the legal and technical issues are likely to be complex requiring extensive engineering investigation to support a reliable opinion.

Some cases shouldn’t go forward

I’ve seen cases that should never have gone forward.  Not because of a lack of technical merit but because of the client’s limited financial resources to bear the cost of the forensic engineering investigation necessary to determine the cause of the problem.  These would be costs learned about after a claim was filed and discoveries held – and only after a professional engineer was retained to investigate the technical issues.

Information counsel wants

During the meeting, counsel obtains information from the client’s description of the problem and the damages he believes he has incurred, documents provided by the client, knowledge of witnesses, answers to questions raised by the lawyer, the lawyer’s past experience of similar matters, and comments by an expert on the technical issues.

Expert can make or break a case

One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case.  An expert can make or break a case and if thought to be necessary should be chosen carefully and retained early (Ref.1).  Even if only retained briefly to support counsel’s assessment of merit, in the event counsel decides not to take the case.

If a professional engineer is not included in the meeting, then counsel might confer with one later during his review of the facts prior to making a decision about taking the case.  The engineer would, of course, review the information from the meeting, particularly the documents, and identify the technical issues prior to counseling the lawyer.

The engineer can also provide very preliminary comment on the engineering investigation needed to address the technical issues and to formulate an opinion on the cause giving rise to them.  The engineer would educate counsel by outlining some of the tasks that would need to be carried out during an investigation and the time to do these – factors that can have a significant impact on the cost of litigation.

Client’s ability to bear costs

If the technical issues are complex – and the engineer can certainly help determine that, the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs.  The client’s ability to bear these costs is important information in counsel’s decision on taking the case.  An engineer can have a role in assisting counsel make that decision.

Tasks a professional engineer can carry out in assisting counsel

Following are tasks that a professional engineer – or any expert for that matter, could carry out during or shortly after counsel’s first meeting with a potential client to assist counsel’s decision about taking the case.  The list is highlighted in blue and bold to break up a long list of tasks and hopefully make the list easier to read – there’s no special significant to what is blue or bold.  There are a lot of helpful suggestions for counsel in the following:

1. Attend and audit the meeting for technical issues, or meet with counsel shortly afterwards
2. Review client’s descriptions of the problem and the reasons for claiming damages
3. Read available documents
4. Review witness’ statements as soon as taken by counsel
5. Begin identification of potential technical issues
6. Begin identification of technical documents counsel to seek
7. Familiarize counsel on the typical stages and tasks in a forensic engineering investigation, the fact of unexpected follow-up investigations, the fact that investigations can lead in unexpected directions, the time required, and the difficulty estimating costs 
8. Identify physical evidence, tangible exhibits and possible demonstrative evidence
9. Brief counsel on parties that might be involved in the potential litigation and their relationship to the technical issues
10. Provide information that would facilitate early settlement
11. Note unfavourable evidence for the potential client’s claim
12. Remind counsel that only one side of the story is known.  The opponent’s story and documents could give rise to a small shift in the technical facts and alter the complexion of the claim
13. Tentatively assess the technical merits of the case with respect to the potential parties
14. Outline preliminary engineering investigation and the major tasks involved
15. Speculate on follow-up investigations
16. Identify specialists that may be required
17. Speculate on the order of magnitude of investigative costs
18. If counsel decides to take the case, and position letters are appropriate, ensure that demand letters, and responses, are based only on well-established technical facts and data as known at the time

References

1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
2. The role of a professional engineer in Counsel’s decision to take a case.  Published June 26, 2012

Biliography

1. What is forensic engineering?, published, November 20, 2012
2. Writing forensic engineering reports, published, November 6, 2012
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process, published October 26, 2012
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com

(The update includes a case history illustrating the importance of a preliminary estimate of engineering invesigative costs before filing a Statement of Claim.  A bibliography lists all the items published last year in “The role of ….” series.  This item was originally published on September 11, 2012)

Preparing and filing a Statement of Claim with the court – typically along with the Notice of Claim, is the second of four steps collectively known as the Pleadings in the civil litigation process.

A professional engineer or other expert can be particularly valuable at this stage.  Our forensic engineering investigations provide the evidence that establishes the technical facts and identifies the technical issues on which a claim for damages in the built environment is based.

(Tasks by a professional engineer assisting Counsel are listed below in blue text)

A preliminary estimate of forensic engineering investigative costs by the professional engineer might be particularly valuable at this time.  See the following case:

Case; Wet Basement: This case illustrates the importance of planning and estimating the cost of an engineering investigation of the cause of a failure before preparing and filing a Statement of Claim.  An important question is whether or not a claim for damages will cover the estimated investigative costs.  An argument can also be made for carrying out some preliminary engineering investigation to learn if there is likely to be a basis for a claim in the first place.  

I was retained by Counsel to investigate the cause of a wet basement found shortly after the client purchased the property.  A visual inspection of the property established the strong possibility that the cause would support a claim.  However, the certainty of an opinion based on a visual, somewhart subjective inspection would be much less than an opinion based on objective measurements and tests in the field. 

The field tests were estimated to cost several thousands of dollars excluding engineering analysis and reporting.  In additon, there’s always a possible need for follow-up investigations in cases like this.  Counsel and client decided not to carry out the field tests because of the costs.  I do not know if the claim was pursued based on my visusl assessment and preliminary opinion.   

We can also evaluate the technical content of the Statement of Defence and the technical strengths and weaknesses of the defence’s response to the plaintiff’s claims.

The following assumes the early involvement of a professional engineer to ensure a Statement of Claim is technically well founded and cost effective.  Early involvement avoids the engineer or expert having to play catch up, and counsel finding himself out on a limb with a Statement of Claim that is not as technically complete and as well founded as it might have been.

The role of a professional engineer during the different steps in the civil litigation process was described in a number of postings last year – see the following references and bibliography.

• Notice of Claim
• Statement of Claim
• Statement of Defense
• Affidavit of Documents

The Statement of Claim is more particular than the Notice of Claim.  It is a document that further describes the parties and defines their relationship(s) with each other.  The Statement of Claim is a listing of the facts.  In construction and engineering claims, the parties oftentimes have a formal contract.  In general negligence claims, the parties are often in proximity such that one owes the other a legal duty – to do or not do something.

Counsel for the plaintiff prepares a Statement of Claim that sets out the disputed issues and the claims the wronged party, the plaintiff, is making against the defendant.  The claims would include, for example, the relief sought – what the plaintiff wants the court to award.  This can be very general, such as claiming damages, costs, and interest.  It does not usually state exact dollar figures.

The Statement of Claim is served on the defendant by the plaintiff, typically through a process server who is engaged to personally hand-deliver the document to the defendant.  The person delivering the document swears an affidavit that this was done.

A professional engineer can assist counsel in the following ways during preparation of a Statement of Claim (the list of tasks are shown in regular and bold text to make them easier to read) :

1. Review narrative from the complainant for technical evidence
2. Review available evidence of lay witnesses, and other experts and specialists
3. Complete the engineering investigation of the cause of the failure or accident, the technical issues and questions identified by counsel, and any follow-up investigations found to be necessary.  (Some preliminary engineering investigations during earlier steps in the civil litigation process would have alerted counsel as to the direction the engineering investigation seemed to be leading with respect to counsel’s interests)
4. Analyse the data gathered during the investigations and establish the cause of the failure or the accident 
5. Document the reasoning leading to the identification of the cause
6. Define the technical issues between the parties as established during the investigations
7. Identify the technical facts relevant to the cause of the failure or accident
8. Identify the evidence supporting the facts
9. Review the Statement of Claim and confirm the correct understanding of the technical facts and issues in the claim the plaintiff is making against the defendant
10. Identify parties that could be involved in the engineering failure or accident that have not been named in the Statement of Claim
11. Prepare preliminary design of repair of the damaged structure 
12. Prepare preliminary estimate of the cost of repair
13. Prepare a report on the instruction of counsel describing the investigations, the data gathered, the analysis and reasoning, the findings, the conclusions, and the opinion formed
14. Review the Statement of Defense, counter claims, and cross claims – and counsel’s response to these statements, and ensure correct understanding of technical facts and issues 
15. Assess the technical strengths and weaknesses of the case for the defense, the counter claims and cross claims

References

1. Steps in the civil litigation process.  Published August 28, 2012
2. The role of a professional engineer in counsel’s decision to take a case.  Published June 26, 2012
3. The role of a professional engineer assisting counsel prepare a Notice of Claim.  Published July 26, 2012
4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed., 2004, Thompson Carswell
5. ASCE Guidelines for Forensic Engineering Practice, 2003, American Society of Civil Engineers

Biliography

1. What is forensic engineering?, published, November 20, 2012
2. Writing forensic engineering reports, published, November 6, 2012
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process, published October 26, 2012
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com

(The following is one in a series of cases I have investigated that illustrate the different types of structural failures and accidents that occur resulting in civil litigation, and the forensic engineering methods I used to investigate the cause)

The investigation is reported under the following main headings with several sub-headings:

• The case (a description of the failed structure – significant cracks in a building, the “lega”/technical issues, and my “client”
• “Forensic engineering” investigation of the failure and the methods used
• Cause (of the failure)
• Post mortem (an interesting side story and a lesson learned)

The case

I carried out my first “forensic engineering” investigation during my 5th year studying civil engineering at the University of New Brunswick (UNB).  This was at a time when I was an engineering student and had no understanding at all of forensic engineering, and wasn’t even qualified as a professional engineer.

Nevertheless, this was a significant and costly building failure but, fortunately, not a catastropic one.

We took our lectures in a room on the second floor of a two and a half story brick clad building with a full basement – the “engineering building” on the UNB campus.

During our 5th year the foundations of one wall of the building settled causing 1″ to 2″ wide, vertical cracks – as I remember the size, to appear in the front, left corner of a wall of the lecture room.  You could see daylight through the cracks.  This would be significant damage to an existing building

“Legal”/Technical issue

To me as a student with an interest in geotechnical and foundation engineering, the cause of the cracks was an issue of considerable interest.  I undertook to investigate and report on the cause to meet the requirements of one of my courses.

Client

My “client” in a sense was the professor who was giving the foundation engineering course.

“Forensic engineering” investigation

My “forensic engineering” investigation involved the following:

• Visually assess the exterior of the engineering building
• Determine how the building was constructed
• Research construction techniques

Visual assessment

A visual assessment of the exterior of the building found that an addition to the engineering building was being constructed immediately adjacent the existing building.  Consulting engineers for UNB had hired a contractor to build a new engineering building adjacent the old – only a few feet away.  Construction involved a deep excavation adjacent the shallow foundations of the existing building.

Building construction/Construction technique

I learned that the existing engineering building was supported on shallow spread footings founded in the natural soils.  Excavating near and well below natural foundation soils like these requires their support in some manner to prevent undermining the soils.

I saw during my visual examination that the contractor had installed a soldier pile shoring system to temporarily support the foundation soils beneath the existing building.

This type of foundation support system consists of steel piles driven vertically into the ground at regular intervals adjacent the existing building foundations.  The piles may also be installed in previously bored holes in the ground eliminating the ground vibration from pile driving.  As the excavation is taken deeper timber – lagging, is inserted horizontally between the piles to support or shore up the soil in the side of the excavation – in this case soil that is adjacent the existing building’s foundation soil.

A soldier pile shoring system is a good support system if constructed properly and its limitations kept in mind.

Research construction technique

I researched the shoring system and found that it “gives” or yields a little – deflects along it’s length in engineering terms, when mobilizing its strength to provide support to the soil it is retaining.  The retained, shored up soil behind the shoring system gives a little as well – moves sideways and away from the foundation soils to which it is providing lateral support.  This effectively undermines the foundation soils a little causing the soils to settle and the building foundations to settle as well.

This deflection is due to the piles bending along their length.  The piles will also deflect or tilt a little if they are not driven or embedded deep enough during installation.

This lateral movement of the shoring system and settlement of the soils and foundations is normal.  It can be negligible if the shoring system is properly designed and installed.  The movement can be significant causing damage to the foundations the shoring system is designed to protect if the support system is not well designed and installed.

Installing soldier piles by driving them in place causes the soils in the immediate area to vibrate.  Soil settles when it is vibrated.  Anything in the soil – like building foundations, settles as well.

Cause

I analysed the data that I had collected – the manner of construction of the shoring system and the results of my research, and concluded the cause of the failure and submitted my student engineering report.

In this case the soldier pile system deflected too much causing the foundation soils to yield or move sideways and settle in the process.  This caused the building walls to settle as well and the corners to crack and open up.  The deflection was probably due to a combination of the causes noted above:

• Vibration of the soils during installation of the piles
• Tilting of the soldier piles due to shallow embedment
• Deflection along the length of the piles

Post mortem

I passed my year so I must have got it right, not treading on any toes in the process – the engineers who approved the soldier pile system that failed were my professors who had formed a consulting engineering company to do this type of work.  Failures occur in spite of the best efforts of the best people.

This short item is one in a series on the role of a professional engineer assisting counsel at the different stages of civil litigation.  Others in the series are listed below in the References.

The series is intended to help lawyers and their clients understand how they can use professional engineers in the resolution of disputes with technical issues.

The detailed tasks at this stage are listed below in blue.

Trial Date Assignment Conference

Once the principal discoveries have taken place, any party can ask for a Trial Date.  This is done with a formal notice to the court for a Trial Date Assignment Conference.

These conferences are based on formal submissions by the parties setting out:

• The issues,
• How many witnesses they will have,
• How many of these witnesses are experts,
• The general subject matter to which each witness will speak,
• How long the trial will take, and,
• Whether the trial will be judge alone or judge and jury.

The lawyers for each party attend in front of a judge during the Date Assignment Conference or confer over the telephone.  The parties to the action do not usually take part in the conference.

At the conference, the court sets a number of applicable dates:

• The date by which all discoveries are to be completed,
• Date by which expert reports are to be circulated,
• Finish date,
• Date for the trial readiness conference, and,
• The date of the trial.

A professional engineer might assist counsel prepare for the Trial Date Assignment Conference in the following ways:

1. Review forensic engineering investigation file and brief counsel on technical matters and issues relevant to the Trial Date Assignment Conference
2. Advise counsel about time needed to finalize engineering report suitable for circulating as required by the judge
3. Brief counsel on future availability for testifying at trial

References

1. Steps in the civil litigation process, published August 28, 2012
2. Steps in the forensic engineering investigation process, published October 26, 2012
3. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
4. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
5. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
6. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
7. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
8. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
9. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
10. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012

(This is one in a series of articles on the investigative methods used in forensic engineering)

Japanese tunnel collapse

The recent highway tunnel failure in Japan (Ref. 1) reminded me of the difficulty in reliably determining the physical, chemical, and mechanical properties of foundation soils and rocks.

These properties are used in design and construction and must be determined for all earth and earth-supported structures resting on or in the ground.  Earth is made up of soil, rock, and water.

Design and construction of the tunnel relied on the properties of the rock the tunnel was in.  The tunnel would be a rock structure, a structure formed of or in rock.

Media reports are that the concrete lining of the tunnel collapsed after the anchor bolts corroded and gave way – more specifically, possibly the heads of the bolts corroded and rusted.  The concrete lining held in the place by the failed anchor bolts would then fall to the floor of tunnel and the vehicles there.

Questions?

1. Was the corrosiveness of the groundwater and/or the rock reliably determined along the entire length of the proposed tunnel alignment preparatory to tunnel design?  This chemical property of water and rock would be important to anchor bolt design.
2. Was the degree of fracturing of the rock mass reliably determined in the event it is found that the bolts were not embedded deeply enough and some pulled out?

Unlikely, is the answer to both questions considering the nature of a tunnel.

Difficulty carrying out reliable engineering investigations

A forensic engineering investigation of the cause of a failure or a complete collapse, where the initial hypotheris is that the cause lies in the ground, would check if the physical, chemical, and mechanical properties were reliably determined.  This checking during a forensic engineering investigation would experience similar difficulties to that during a field investigation for original design purposes.

Cause of difficulty

The difficulty in reliably determining the physical, chemical, and mechanical properties of foundation soils and rocks is due to the heterogeneous nature of the ground beneath the structure.

Soil and rock are construction materials like the timber, concrete, and steel, for example, that are elsewhere in a structure.  The difference is that where concrete and steel are very uniform – the same throughout, soil and rock are very non-uniform – not the same throughout; heterogeneous.

The design properties of steel, for example, are selected from a book taken off a shelf in the design office.  The properties are very reliable.  The properties of foundation soils and rocks must be determined for each construction site by means of field and laboratory testing.  The properties as determined can be quite reliable or quite unreliable, and everywhere in between.

I learned a long time ago when practising in England to expect the unexpected when dealing with the ground.

A review of foundation failures in England found that many were due to inadequate determination of the properties of the foundation soils and rocks.

What reliability depends on

The reliability of the properties determined for foundation soils and rocks depends in part on:

• the nature of the surface of a site – the topography,
• the degree of heterogeneity of the foundation soils and rocki,
• the nature of the structure,
• the thoroughness of the field and laboratory testing,
• local practice, and,
• the experience of the professional engineer planning the field work, and interpreting the data.

Examples of variable reliability in engineering investigation

In the case of the tunnel in Japan, the surface of the construction site would be a mountain.  How do you reliability and thoroughly determine the properties of the rock along the alignment of a tunnel beneath a mountain?  There are methods but the costs are very high.  There are less costly methods but the reliability is much lower.

The rock is investigated in advance of the working face of the tunnel during construction.  But this doesn’t give as reliable data on the properties of the rock above and near the crown of the tunnel.

A highway is a linear structure like a tunnel.  The surface of the highway site is relatively level.  Determining reliable physical, chemical, and mechanical properties is easier by comparison to a tunnel.

Mountains are sometimes formed by the upthrusting of rock formations from below.  The mountains on the west coast of North America were formed that way.  This uplifting distorts and fractures the rock – introduces greater heterogeneity into the rock formation.  There is likely to be greater variability in the physical, chemical, and mechanical properties along the tunnel alignment because it is beneath a mountain.

The ground surface at construction sites in Truro and also on the valley floor of the Annapolis Valley in Nova Scotia are level but the foundation soils must be expected to be quite variable.  This because of how they were formed in water and beneath glaciers.

Nature of field testing and the inherent uncertainty

Field testing at construction sites to determine physical, chemical, and mechanical properties is characterized by testing at discrete points.  The judgement call for the professional engineer is how close or far apart those points should be.  Then interpreting and extrapolating the data from the test points to all the soil and rock inbetween the discrete points – the great mass of soil and rock compared to the very small amount of soil that is field tested.  Then assigning physical, chemical, and mechanical properties to these construction materials.

Because of the uncertainty inherent in this process, engineering reports include a section on the limitations of the engineering investigation.  The section states that if changed conditions are encountered during construction – changed with respect to those reported, the engineer who did the field tests must be contacted.  He is given an opportunity to review his interpretation and extrapolation of the data at the discrete field test points, and the properties he assigned to the mass of soil and rock for design purposes.

Forensic engineering investigation of foundation failures is burdened by this same inherent uncertainty.  In spite of this, a forensic investigation would be more thorough and reliable if for no other reason but to avoid making the same mistake twice

References

1. Globe and Mail, December 4, 2012.

This short item is the 8th in a series on the role of a professional engineer at the different stages of civil litigation.  Others in the series are listed below in the References.

The series is intended to help lawyers and their clients understand how they can use professional engineers in the resolution of disputes with technical issues.

Settlement Conference

If mediation or arbitration is not tried or is unsuccessful then lawyers for the parties meet and confer with a judge to decide if a settlement is possible with his assistance.  By this time the parties will be ready to go to trial.  They will have the documents that they will be relying on, reports from professional engineers and other experts, physical and demonstrative evidence, and testimony from discovery.

The lawyers, in advance of the Settlement Conference, send the judge a brief summary of their arguments and any relevant documents.

At the conference the judge will listen to the lawyers and try to achieve a settlement.  The judge will sometimes give an opinion on how they would decide the case if they heard it at trial.  However, they cannot force a settlement and would not officiate at the trial because of their role in the Settlement Conference.

A professional engineer might assist counsel at this stage of civil litigation by carrying out the following tasks:

1. Review all technical evidence and technical facts identified at discovery, paying particular attention to new evidence
2. Re-assess determination of cause of failure, inadequate performance, or cause of accident
3. Check all technical documents and information that will be relied on in counsel’s arguments during the Settlement Conference
4. Identify technical evidence and facts favourable to the opposing party
5. Re-assess the technical strengths and weaknesses of the claim or the defense and brief counsel
6. Review and comment, as appropriate, on the technical content of counsel’s proposed summary to the judge of their arguments and documents

References

1. Steps in the civil litigation process, published August 28, 2012
2. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
3. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
4. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
5. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
6. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
7. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
8. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012

Alternate dispute resolution, ADR, refers to resolving disputes in ways other than going to court.

The role of professional engineers in ADR is to provide technical data, conclusions and opinions as to the cause of engineering failures, industrial, traffic and aviation accidents, and slips, trips and falls.  This type of information contributes to intelligent decisions as a basis for the resolution of disputes with technical issues.

This blog, one of a series, lists the tasks – itemized below, of a professional engineer’s role in ADR

In some areas, over 90% of lawsuits involving the built environment settle before going to trial, and this is often facilitated with evidence from forensic engineering investigations.

ADR can be carried out at any stage in civil litigation – even before an action is filed.  Once an action is commenced, ADR can still occur at any point but is mainly used after document production and discoveries have taken place.  At that point, each party is more fully aware of the other side’s case.  Each party has more information to assess the merits of the case, the strengths and weaknesses for both parties, and the likely outcome if proceeding through to trial. As such, ADR becomes relevant as the parties know better where each side stands.

There are three commonly used methods of ADR.  Other forms of alternate dispute resolution are used but the following are particularly relevant to civil litigation.

• Negotiation
• Mediation
• Arbitration

All forms of ADR rely on a presentation of facts, and resolution based in part on a consideration of the facts.

A professional engineer’s services are generally the same regardless of the ADR method selected by the client.

1. Review and examine all technical documentation, electronic data, physical evidence, tangible exhibits, demonstrative evidence, and transcripts of proceedings on the case
2. Visit and briefly re-examine the site
3. Review and confirm the forensic engineering investigations carried out by the different parties to the dispute, the data and technical evidence gathered, the analyses and reasoning, the findings, the technical facts, the conclusions, and the opinions formed on the cause of the engineering failure, poor structural performance, or personal injury/fatal accident
4. Review estimated costs to repair the damaged structure
5. Review the claims and the technical strengths and weaknesses of each party to the dispute, including counter claims and cross claims 
6. Review the technical facts given in support of each party’s position and the technical evidence supporting the facts
7. Confer with counsel about their clear understanding of the technical evidence from the forensic engineering investigation, the technical facts supported by the evidence, and the technical issues on which the claim, defence, and counter claims are based
8. Prepare to testify as an expert witness if required
9. Provide the hearing with technical data and information to facilitate an understanding of the technical issues
10. Interpret and explain technical issues to a mediator or arbitrator
11. Serve as a mediator or arbitrator if the dispute has technical issues
12. Assist counsel in assessing technical elements in offers made by different parties to facilitate settlement

Negotiation

In negotiation, participation is voluntary and there is usually no third party who facilitates the process or suggests a solution.

If an individual or a firm has a disagreement with another they may get together to discuss the problem and reach a mutual agreement.  This way the parties can work out a solution that best meets the needs and interests of all parties.

In some cases individual parties may also prefer to hire a lawyer or a counselor who has the expertise to help a firm to negotiate or who can negotiate on behalf of the firm.

Mediation

In mediation, there is a trained, neutral third party, a mediator, who facilitates the resolution process (and may even suggest a solution) but does not impose a solution on the parties, unlike judges.  Mediation often leads to resolutions that are tailored to the needs of all parties.  The process is informal and completely confidential.  As a result parties may speak more openly than in court.

Arbitration

In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.  At an arbitration hearing, a party to a dispute may have a representative speak on their behalf.

Arbitration may occur when parties have a dispute that they cannot resolve themselves and agree to refer the matter to arbitrators.  Arbitration can also occur because parties to contracts agree that any future dispute concerning an agreement will be resolved by arbitration.

Arbitrators are often people who are experts in a specific area of the law or a particular industry, for example, engineering.

The arbitrator makes a decision based on the facts, any contracts between the parties in dispute, and the applicable laws.  The arbitrator will explain how the decision was reached.

If the applicable law allows, parties can decide in advance whether the arbitrator’s decision will be final and binding or whether it can be submitted to a court for review if a party disagrees with the decision.

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

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

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

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

Factual reporting

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

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

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

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

• Task
• Purpose of task
• Data/Evidence gathered

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

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

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

Interpretative, analytical reporting

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

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

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

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

References

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