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 

The problem

Civil litigation can be expensive, and it’s very difficult to predict the costs at the start.  This is particularly the case in estimating the costs for the later steps in a forensic engineering investigation.  Engineering investigation can be a significant component of the cost of civil litigation involving the built environment.

It’s even more difficult estimating costs if there is a commitment to following the evidence and carrying out follow-up investigations.  This to ensure a thorough investigation of the cause of a failure and the rendering of a reliable, objective opinion.  It’s difficult for both the expert and counsel.

In spite of this difficulty, counsel should run not walk to the nearest exit if an expert offers or agrees to a fixed price to investigate the cause of a failure or an accident.  This approach to managing costs can adversely affect the thoroughness of an investigation and compromise the credibility of the expert.

Unfortunately, as far as the expense of civil litigation is concerned and, understandably, wanting to have some assessment of this at the start, it has been said, somewhat crudely, “If you’ve got to ask how much it costs, you can’t afford it”.

Put another way by an experienced professional engineer who had a lengthy career in engineering, and then went on to study law and economics and practised civil litigation for years, ” You’ve got to have a problem (a failure, inadequate performance, an accident), you’ve got to know you have a problem (results of an investigation confirming a failure has occurred, and the cause of the failure), and you’ve got to have the money to fix the problem (the money to initiate an action claiming damages, or defending against a claim, through to trial if necessary)”. (Ref. 1)  These comments are difficult to read but contain much truth.

David Stockwood, Q.C. puts it in a more refined way, “Most clients are unfamiliar with the technical and procedural aspects of litigation.  They are also unfamiliar, and shocked, by the financial realities.  While it is necessary to fully explain the “facts of life” at an early stage (and I would add, at on-going stages), use a delicate touch so that a client does not become completely discouraged from enforcing his rights”. (Ref. 2)

Following is a subjective assessment of the difficulty estimating the costs of the steps in a forensic engineering investigation.  The more difficult the step the less accurate the estimate.  The different steps are described in a previous blog (Ref. 3).

The cost assessment at the start of an investigation assumes the request is made of a professional engineer after he has been contacted, the failure briefly described, and the documents identified that counsel will provide.

The assessment is based on my experience in forensic engineering investigation of failures in the built environment on the east coast of Canada:

Difficulty estimating the cost of forensic engineering investigaion on the east coast of Canada

1. Document review ……………………………………………………………… Easy
2. Visual assessment …………………………………………………….. Fairly easy
3. Description of the failure ………………………………………………. Fairly easy
4. Survey and documentation of damage …………………………… Fairly difficult
5. Determination of how the structure was built …………………. Easy to difficult
6. Determination of site conditions ……………………………………. Very difficult
7. Laboratory investigations …………………………………………… Very difficult
8. Research …………………………………………………………………….Difficult
9. Follow-up investigations ………………………………………………. Impossible
10. Data analysis and formulation of opinion …………………………. Very difficult
11. Report ……………………………………………………………………… Difficult

Add to this difficulty of estimating the costs of a forensic engineering investigation, the difficulty of estimating the costs of the role of the expert in the different stages of the civil litigation process.  This compounds the problem further for counsel and the expert.

For example, how, at the start of an action, do you estimate the cost of answering the questions posed under Rule 55 (in Nova Scotia) not knowing how many there will be nor their complexity?

I was asked in a case not too long ago to answer 46 numbered questions submitted by opposing counsel.  On counting, and including important sub-questions, there were actually 77 questions.  The cost of answering these questions was approximately 13% of the total cost of my involvement as an expert in this litigation.

Another example, how do you estimate the cost of responding to rebuttal reports when you don’t know how many there will be nor their complexity?

Another example still: Changed site conditions requiring additional or lenghtier investigation.  I was investigating the adequacy of the underpinning of a structure one time.  The documents indicated that the structure was underpinned in one way.  My investigation found that it was underpinned in a markedly different way requiring more extensive field work and additional cost.

As well, reliable published information indicated that groundwater would not be a problem in an excavation dug for the investigation of the underpinning.  But the excavation flooded because of an unknown feature of the inadequate underpinning that was not evident in the documents requiring even lenghtier field work and additional cost.

The cost of any investigation below the ground surface is very difficult to estimate.

Forensic engineering investigation of structures above the ground surface are also difficult.  This is particularly the case for old structures, or for recent ones for which construction or as-built plans are not available which is often the case.  It’s almost impossible to accurately estimate the cost of investigating major failures like the collapse of the roof at the Elliot Lake Mall earlier this year (Ref. 4).

Managing the problem

Fortunately, this problem of estimating the cost of forensic engineering investigation and its subsequent contribution to the cost of civil litigation can be managed, at least a little. The approach is similar to that recommended for managing the cost of civil litigation, in general, quite apart from the engineering component.

Civil litigation manuals recommend informing the client of the estimated total costs at key stages in the process – starting with the initial contact, and upgrading total costs at each stage (Ref. 2).  A similar approach can be taken in estimating the cost of forensic engineering investigation.  The approach is not unlike the cost control procedures in the field of project management (Ref. 5).

The cost of each step in the forensic engineering investigation can be estimated at the start, and total engineering costs calculated.  Costs can then be upgraded with revised estimates at key steps in the process.  At each step in the process these updated engineering costs can be added to the costs accrued to date, including updated legal costs, to give an updated estimated total cost for the civil litigation.

The further along in the process the more accurate the cost estimates of subsequent steps will be, as well as the total cost.  These cost estimates of subsequent steps benefit from data from the forensic investigation as it unfolds.

Counsel can use these updated total costs – legal plus engineering, at any stage in the civil litigation process; from early to late, to re-assess the merits of the action, and inform and discuss this with the client.

Expressing estimated total costs at each stage of the litigation as a percentage of the cost of the structure that has failed, or the expected damages that will be awarded, can be particularly enlightening with respect to the merits of continuing the action.

References

1. Kent, G. K., (Jimmy), P.Eng., LL.B., M.Sc. (Economics), Personal communication
2. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed. 2004, pg. 14, Thomson Carlswell
3. Steps in the Forensic Engineering Investigative Process, posted October 26, 2012 in The Forensic Engineering Blog by Eric E. Jorden, M.Sc., P.Eng.
4. Cause of the Roof Collapse at Elliot Lake, posted July 10, 2012 in The Forensic Engineering Blog by Eric E. Jorden, M.Sc., P.Eng.
5. Project Management Institute, A Guide to the Project Management Body of Knowledge, Most recent edition, Newtown Square, Pennsylvania, USA

The professional engineer as an expert witness has an important role assisting counsel at the discovery stage of civil litigation.

Discovery is a process of obtaining information from the opposing parties and their lay and expert witnesses by asking questions.

This item, one in a series, identifies and lists tasks the engineer might carry out during preparation for the questioning.  Engineers basically assist by contributing the technical component of the questions.  They also testify at discovery as experts when called on.

At the discovery stage all engineering investigation is complete, all evidence, engineering data and testimony that any party may offer at trial is known and can be fully examined by all other parties.  The cause of the engineering failure, poor structural performance, or personal injury/fatal accident has been determined.

By reviewing the total body of evidence, the parties and their counsel are able to assess the strength of their respective positions if the action proceeds to trial.

Information is obtained and the evidence reviewed by asking questions in the following ways:

• Discoveries (ask questions)
• Interrogatories (submit written questions)
• Undertakings  (agree/undertake when asked to provide information, data and physical evidence later)

Prior to discovery in some jurisdictions, questions can be asked of an expert in writing by opposing parties – delivered through counsel, which must be responded to within a stipulated period of time.  For example, Rule 55 of the Civil Procedure Rules of Nova Scotia.

Discoveries are oral question-and-answer sessions under oath where each party’s counsel poses detailed questions to the other party’s witness(s), including engineering experts, about the opinions and testimony they will offer at trial.

A discovery is formal and similar to trial except it is not held in a court before a judge.  The sessions are recorded by a court reporter who transcribes the proceedings which can be used later at trial.

The role of the professional engineer at the discovery stage of the civil litigation process might involve the following:

1. Review all technical documentation, electronic data, physical evidence, tangible exhibits, and possible demonstrative evidence on the case sworn to by the parties to the extent this information is known
2. Confirm the technical evidence, facts, and opinions as presented by the parties
3. Identify technical evidence and documentation that may exist and be discoverable but wasn’t noted in the Affidavit of Documents
4. Confer with counsel about their clear understanding of the 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
5. Identify relevant technical data and information that should be sought from parties involved in the litigation
6. Identify engineering investigation that has not been carried out by the parties because of various constraints (e.g., omission, budget, time/schedule, site access)
7. Suggest technical lines of questioning to counsel to obtain missing but relevant information, or to examine perceived technical mistakes or flawed reasoning by opposing lay and expert witnesses
8. Review the forensic engineering investigation file and prepare to testify as an expert witness if presented by counsel
9. Engage in a mock discovery with counsel, including direct and cross-examination of the professional engineer
10. Attend and audit discovery and testimony of opposing experts and lay witnesses for technical content
11. Assess relevance and explain technical testimony to counsel during the discovery proceedings
12. Prepare for and testify as an expert witness on the forensic engineering investigation carried out by the professional engineer
13. Review transcripts of the testimony of lay and expert witnesses and identify and assess relevance of unknown technical data
14. Confer with counsel on the technical content of the transcripts
15. Assist counsel in narrowing the technical issues to be determined at trial

Interrogatories are written questions from opposing parties to engineering experts by agreement which were not asked at discovery.  The questions must be answered within a prescribed period of time.

The role of the professional engineering assisting counsel at this stage of the discovery could involve the following:

1. Review reports by others and assist counsel prepare written technical questions not asked at discovery
2. Prepare written technical questions for engineering experts arising from an audit of the discovery and testimony of expert and lay witnesses
3. As the professional engineer being discovered, research answers to the interrogatories and provide these

Undertakings are agreements by the engineering expert who is answering questions to provide answers later or copies of documents or other material.  This would be information that the engineer could not readily provide to the opposing party at the time.  The information may consist of paper documents, electronic data and physical evidence.  The engineer undertakes to provide the information within an agreed period of time.

The role of a professional engineer at this final stage of the discovery is well defined:

1. Research and submit answers to questions, and gather together and provide documents, data and physical evidence not provided during discovery  
2. Review transcripts of proceedings and note any technical information that may affect the engineer’s opinion

At this stage in civil litigation, the parties have presented all information on their respective positions to the court.  All the facts and engineering data are known making it an opportune time for the parties to attempt resolution of their dispute by mediation or arbitration.

References

1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, Thomson Carswell, 2004
2. Steps in the civil litigation process; posted August 28, 2012
3. The role of a professional engineer in counsel’s decision to take a case; posted, June 26, 2012
4. The role of a professional engineer assisting counsel prepare a Notice of Claim; posted July 26, 2012
5. The role of a professional engineer assisting counsel prepare a Statement of Claim; posted, September 11, 2012
6. The role of a professional engineer assisting counsel prepare a Statement of Defence; posted, September 26, 2012
7. The role of a professional engineer assisting counsel prepare an Affidavit of Documents; posted, October 4, 2012

Your interest as a lawyer or claims manager

You as a civil litigation lawyer or insurance claims manager have a big interest in the objectivity of the experts you retain and the opinions they render.  Ethics is an element in objectivity.  Knowing the sources of pressure on objective and ethical conduct – the bottom line is one source – guards against compromise.  Educating professional people early in their career on these issues would seem to be a good idea.

Reader’s comments on initial posting

This update reflects informative comment from three readers of the initial posting on this topic published September 17, 2012.  The initial item expressed concern – after I read two articles in an engineering periodical, about the pressure on professional engineers to do good work when being retained by others whose objective is to make money.

Professor Chris MacDonald, who blogs on business ethics, and is widely and well regarded, noted that the “problem of the employed professional” is a standard one in all the textbooks on professional ethics.  One business ethics course that he used to teach spent a couple of weeks on the problem (C. MacDonald, Phd).

Ms. Barbara Bleasdale, who lectured in a school of nursing on the east coast for more than 25 years, thinks the bottom line rules in healthcare decisions as well….and the ethical dilemma causes some nurses to leave the profession as they are not always supported in doing the right thing (B. Bleasdale, RN).

Dr. John Hughes, a retired consulting professional engineer, noted the size of the larger consulting firms today – many, many 100s of professional engineers as opposed to a few dozen a few decades ago.  He is of the view – shared by a senior colleague, John Ackerly, P.Eng. who consults to large international firms, that this does not promote responsibility for good design.  The company and it’s employed engineers are essentially sheltered behind the limited company rules.  Basically, one has to return to the small, “private company” in which each professional engineer takes responsibility for the success of the firm, including the professionalism exhibited by the employed engineer (J. Hughes, Phd).

The problem of the “employed engineer” is particularly relevant in forensic engineering.  Ethics is an element in the objectivity we must bring to our engineering investigations, and to the judicial system when we are called as experts – witness civil procedures Rule 55 in Nova Scotia.

Updated initial posting

I was initially taken by two articles in the Fall Newsletter of APENS, The Engineer, that could be summarized by the following comments: “…engineers found guilty of misconduct...” and “…skills engineering schools should teach“.

The article about skills caught my attention first.  It was entitled, The Top 5 Skills Engineering Schools Should Teach, and was written by Natalie Cornelius, P.Eng. It was admirable that Natalie took time to draw attention to skills practicing engineers need and to initiate a discussion about these.  I agree with some of what Natalie writes but not all.  She identifies the following skills:

1. Written communicatoin
2. Attention to detail
3. Networking, and/or how to call someone you barely know and get information
4. Skillful negotiation
5. Flexibility and adaptability

I agree wholeheartedly with the first, believe the second is being addressed well enough in university now – maybe too much, and believe the remaining three are not fundamental enough for a university program in engineering.

I believe a skill that Natalie might have included was Verbal Communication.  I also believe – and this has been reinforced by the responses to my initial posting, that the awareness of engineers should be raised, as soon as possible in their careers, about professional ethics and the pressures on these.  My list of skills might look like the following:

1. Written communication
2. Verbal communication
3. Professional ethics

The reason for my views on the article are beyond the scope of this posting.  But, I do think Natilie’s views on engineering curriculum could have been even more helpful if her article had also reflected the results of interviews with senior engineers in engineering disciplines, fields of practice, and life experiences other than her own.  Experienced practicing engineers of all stripes have a lot to offer the universities on what they might be doing.

The article about engineers found guilty caught my attention second.  It was entitled, Engineers who declared Lake Algo Centre Mall structurally sound, found guilty of misconduct in 2010.  This is the Elliot Lake Mall that collapsed and that I blogged about a few weeks ago (Cause of roof collapse at Elliot Lake, published July 10, 2012).  The article in the APENS newsletter was originally published in The Globe and Mail on Saturday, July 14, 2012.

It was encouraging to see APENS carry this item about professional engineers who appear to have slipped up

It’s interesting that the engineer’s misconduct had something to do with engineering design and inspection.  These were areas that I thought in my blogging were deserving of hypothesizing, particularly construction inspection.

I can’t help but think of the pressure some practicing engineers are under to do the right thing in their work.  Few if any knowingly do wrong but we are human and occasionally let our guard down and inadvertently do the wrong thing.

Those of us who are in private consulting practice learn early on to be careful of some clients – I could identify but won’t, who leverage the smallest amounts of capital to dizzying levels, and the professional engineers who are under pressure to produce inexpensive designs and are swept along in this leveraging.

I’ve thought for some time – months if not two or three years, about the subtle pressure professional engineers are under who work for commercial firms and fiscally responsible bureaucracies where the bottom line rules.  Some of these organizations are up to a 1,000 strong in professional staff.  Most professional engineers work for small and large organizations like these.  To some extent, engineering professionalism is threatened by the tyranny of the bottom line.

This conflict between the bottom line and professionalism has troubled me enough that I’ve thought to suggest to Chris MacDonald that he blog about ethics in the professions.  Chris is a professor at Ryerson University in Toronto, formerly with Saint Mary’s University, who blogs about business ethics.  Chris is extremely well recognized world wide in his field.  I think professional ethics is a fertile field for a chap like him with his insight and knowlege.  As noted above, it turns out that “the problem of the employed professional” has been recognized at universities, at least by business schools, and that Chris has taught a course on this subject.

In any event, to wrap this up, and get back to the two articles I saw in the APENS newsletter, I think a course worthy of an engineering curriculum would be one on professional ethics and the pressures on these ethics in our society.

Relevance to forensic engineering

Some of the young engineers will practice forensic engineering after they get a few decades of experience under their belts.  I can tell you that ethics plays a particularly important role in forensic engineering.  There is not a little pressure on a professional engineer to advocate for the client.  There is also the normal pressure of a human being identifying with the underdog after the cause of a failure is known.  These pressures threaten the professional engineer’s need to be objective as required by the courts.  A course in ethics would raise the young engineer’s awareness of these pressures and help him/her resist them.

References

1. Cause of the roof collapse at Elliot Lake.  Blog posted July 10, 2012
2. Professional ethics and the tyranny of the bottom line.   Blog posted September 17, 2012
3. C. MacDonald, Phd, Ryerson University, Toronto
4. B. Bleasdale, RN, Halifax
5. J. Hughes, Phd, Vancouver

This is the 6th in a series of postings on the role of a professional engineer in the 11-step civil litigation process.

The role of a professional engineer in the preparation of an Affidavit of Documents, the 4th and final step in the Pleadings, is brief – perhaps three tasks.  It involves checking that all relevant technical and scientific documents have been included in the Affidavit.

The Pleadings consist of the following steps in the civil litigation process:

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

An Affidavit is prepared if a matter is not settled after the Statement of Defense and an exchange of letters in an attempt at a settlement.  An Affidavit of Documents affirms that each party’s relevant documents have been disclosed.  All parties prepare, swear, serve and file an Affidavit with the court.  A party must produce in its Affidavit all documents and electronic information, including technical and scientific material, that it has in its possession or control relevant to the matters in issue.

The role of the professional engineer at this stage of civil litigation might consist of carrying out the following tasks:

1. Review Affidavit of Documents of the party who has retained the engineer and confirm that all documents relevant to the technical issues have been considered and included
2. Identify technical documents that should exist and be disclosed by all the parties to the action
3. Assess if an opposing party’s Affidavit of Documents is complete or deficient of documents relevant to the technical issues