Take your pick: Get your expert’s report reviewed by a peer, or rebutted by a peer.  A peer review has a scientific ring to it.  A rebuttal review has an aggressive ring.

If a peer review finds that you’re out on a limb with errors and omissions in your expert’s forensic investigation and report – it happens – you can back track and correct them.  If a rebuttal review finds this, you’re stuck out on the limb and on the defense.  They both cost money but money spent on peer review is better spent and less embarrassing.

I’ve thought this for a while resulting in the following blogs over time.  Also that it was time to bundle them together.

I think blog #5 on controlling review costs is quite a good read.  It explains the different ways you can retain an expert and how each can be peer reviewed.

If you’ve got time to look at the blogs, you might start with #7 the first one I posted in 2013.

The Bundle

1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020  I make the case for a peer review of a rebuttal report because most are biased.  I learned this after surveying the opinion of seven experts in the Maritimes. 
2. Ridding peer review of potential bias.  Posted December 30, 2019  A good read on six different ways of getting rid of bias in a peer review, in decreasing order of preference. 
3. Eureka! Peer review is good case management.  Posted November 16, 2018  A pithy, short blog on a Eureka! moment I had that emphasized the value of peer review at any stage of the civil litigation or insurance claim resolution process.
4. Peer review pays off – 17 years later.  Posted May 5, 2017  A long time to wait and not your normal payback period – more like a few months.  This is a case history that explains how a client was spared the lost of many 10s of 1,000s of dollars.
5. Peer review costs can be controlled.  Posted January 22, 2016  The answer is in how you retain an expert.  You have a choice of several different ways.  There’s a quote at the end of this blog that really makes you think.
6. Peer reviewing an expert’s report ensures the justice system gets what it needs.  Posted January 15, 2016  I emphasize the need for peer review again and note that it is provided for now in the remediation of contaminated sites – environmental engineering.  I reviewed 16 references in drafting this blog.
7. Peer review in forensic engineering and civil litigation.  Posted November 26, 2013  I explain the need for peer review in forensic work as perceived by a consulting professional engineer.  It was prompted after I read four poorly written “expert” reports.

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

Terrain or site analysis using aerial video – looking at pictures taken from the air and getting information about a site – has come full circle, from simple to complex, and back to simple.  I’ll tell you how in the following, and why that’s good for forensic investigation.  Including – for certain in the future – a first-in-Atlantic-Canada aerial video.

It’s simple terrain analysis when the aerial video or photograph is taken near the ground – a few 10s of feet high.  The resolution and detail are good and anyone can look at the video and get evidence and data from it.  No special skills and software are needed.  Forensic experts like that: Reliable, precise evidence easily got and understood by everyone, including the client.

It’s complex when aerial photographs are taken from high in the sky – 1000s of feet.  The resolution and detail are not so so good and special skills are needed.  For example, skill in photogrammetry in the past as well as today, and also knowing how to use different software.

(Photogrammetry is the science of making reliable measurements between objects with the use of photographs and especially aerial photographs (as in land surveying and mapping).

(Terrain is a geographic area or piece of land.  It can also mean the physical features of a tract of land.  Also, a stretch of land, especially with regard to its physical features)

***

The simple terrain analysis today might be more correctly thought of as site analysis.  Site analysis is the type of analysis done on small, compact sites where most personal injury accidents, structural failures and problems occur rather than on large tracts of land – for example, the site of the accident, or the building or crane collapse.

***

Traditionally in terrain analysis, you look at the ground surface of quite large tracts of land as captured in aerial photographs.  You identify the physical features characterizing the surface, assess how the features relate to one another, then assess how the individual features and their relationships are relevant to your interest in the terrain.

For example, you might want to construct a road in an unmapped area.  The location and nature of features like hills, valleys, steep slopes, streams, forest, flora, existing structures and the underlying foundation soils are all relevant to what you want to do in the area.

Why not just go for a walk in the area and see for yourself?  That is done to some extent and is called ground proofing – confirming that the features you’ve identified in the aerial photographs are what they seem to be.  But for large, unmapped areas it’s not practical, maybe not safe either.

I worked for an Australian firm that selected preliminary routes for roads in Indonesian jungle by terrain analysis.  I’ve worked in jungle.  I learned after leaving one site that a man was taken by a crocodile in a mangrove swamp and eaten.

***

In the simple beginning of terrain analysis – the late 1800s – aerial cameras were taken aloft on balloons and kites and photographed the ground from quite low down.  As cameras improved this gave good detail from a different angle – above the site rather than at ground level.  In a sense, you saw your site in 3D – from the front, the side and above.  As good as it was, the area covered was limited.

Time passed and during WW 1 then more so in WW 2, cameras were taken aloft in reconnaissance planes, and understandably flew quite high and out of range of enemy guns.  Extensive areas were photographed this way and features of interest identified in the aerial photographs by the user.  Terrain analysis started to get complex.

More time passed and large areas of land were photographed this way and topographic maps made of the areas using photogrammetry.  All of Canada has been mapped from planes flying 1000s of feet in the air.

I’ve used these aerial photographs for years in my engineering work.  The planes flew at about 6,000 feet.  The detail was okay but not great, but better than not having a 3D aerial view of a site.

Various remote sensing methods were developed and increased the accuracy.  Photogrammetry continued to develop and LiDar also came along.

(Lidar (light detection and ranging) is a remote-sensing technique that uses laser light to densely measure the surface of the earth, producing highly accurate x, y, z measurements of a point on the ground.  In a sense, the location of the front, side and top of many closely spaced points on the earth – like the points defining the edge of a bog.  Lidar is emerging as a cost-effective alternative to traditional surveying techniques such as photogrammetry)

I used Lidar to investigate the cause of the foundation failure of a house and swimming pool in Cape Breton.  A Lidar map accurately showed the location of the edge of a bog and the probable location of compressible fill soil placed on a small area of the bog near the edge.  The foundations were constructed on the weak, compressible fill and bog and over time settled and subsided a lot – I remember 6.0 inches at one location.  It was an easy analysis and conclusion as to cause.

Still more time passed and in recent years simple drones fitted with video cameras came along – like motorized kites and balloons from the late 1800s -, and the cameras were much better too.  We got back to simple terrain/site analysis and the potential for taking forensic engineering investigation to another level is good.

Most recently for me, staging how an engineering failure might occur and photographing the scene from a drone fitted with a video camera.  I’m also looking forward to flying low and capturing the reenactment of a slip, trip and fall accident on video.  I’m certain it’ll be a first-in-Atlantic-Canada.

In hindsight, I wish now I had flown and got aerial video of the reenactment of a power tool accident that I investigated.  I got good video from the ground and the case was resolved, but aerial video of the reenactment would’ve been nice.  Next time.

***

I hope you’ve got an idea of site analysis and agree that simple is good.  Forensic experts certainly like it: Reliable, precise evidence, simply and easily got, easily analysed, understood by everyone, and explained jargon-free.  Not very high tech – simple low flying drones fitted with video cameras – but good and reliable.  You’ve got to agree.

It’s good like getting your hands dirty and mud on your boots tramping around on site on any occasion, including during ground proofing of the analysis of aerial video taken from low flying drones. (Ref. 1)

Also good like if you can measure it you can manage it. (Refs 2 and 3)  The measurements you can get from a screen-grab off aerial video are almost as good as those from a boots-on-the-ground land survey of a site.  The land surveyor in me knows this.

Simple is good, and it’s good to have come full circle and to be back where we started, in a sense, in the late 1800s.

References

1. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
2. “If you can measure it you can manage it” – and do thorough forensic  engineering, and cost effective civil litigation.  Posted June 18, 2015
3. If you can measure it you can manage it, even if it’s a real mess like a car or truck accident.  Posted June 23, 2016

Reasonableness jumped out at me when I read some words of advice from a US attorney to experts regarding Criteria for Admissibility of Expert Opinion Testimony Under Daubert and Its Progeny: (Ref. 1)

“Remember the three R’s:

• Reliability, 
• Reasonableness and
• Repeatability.

Every step of the expert’s investigative process should pay attention to these three factors:

• The reliability of the investigative procedures used;
• The reasonableness of the conclusions formulated; and
• The ability to demonstrate, through repetitive analyses, that the investigative method and resulting opinions are scientifically valid and worthy of being presented to the trier of fact. — Elliot R. Feldman, Esq., Cozen O’Connor”

(Quote altered to break up a big paragraph and make more readable)

These factors allow for simple, approximate methods of investigation if decided appropriate by a reasonable person.  Thank heaven, because not everything is clean and pretty, and exact and precise in forensic engineering investigation.  Think everything to do with the messy ground, and the structures supported there, and the natural environment in general

I defended simple, approximate investigative methods in a recent blog on the standard of care that had a reasonableness theme.  (Ref. 2)

For example, the drag sled method for determining the skid resistance of a floor – the simple coefficient of friction of the floor material in high school physics.  You drag a known weight across a floor, measure the drag, divide the one by the other and you got your coefficient of friction/skid resistance.  It can’t get more simple and scientific than that.

The method meets the criteria for the admissibility of expert evidence in the U.S. and I’m sure in Canada.  It’s reliable in giving an approximate answer based on repetitive testing that would be noted in the conclusions. Approximate investigative methods are reasonable in some situations, and scientifically valid.

As an experienced civil engineer, I like reasonable considering the failures and accidents we must investigate in the sometimes messy built and natural environments.  Explaining these investigations to non-technical people and the trier of fact is often the demanding part.

References

1. As reported in Expert Communications, Dallas, Texas, August, 2019 (A consulting firm that provides marketing services to experts in the US)
2. Is there a case for a multi standard of care? No.  Posted June 27, 2019

OVERVIEW

I’ve blogged for seven years now, two or three times a month to tell you about a field of engineering that I enjoy and that contributes to dispute resolution and claim settlement – a nice way to practice.

I want parties to a dispute or claim to know something about the nature and methods of forensic engineering investigation and about managing costs when you retain an expert.

You think-on-paper when you blog and that’s good practice when you must synthesize and analyse engineering evidence, draw conclusions and form an opinion.  Blogs are essays on a topic, sometimes technical, and not unlike mini expert reports in story form.  .

I also blog because I like that creative feeling when you write – producing a piece of literature that didn’t exist before.  There’s 200 of my blogs/essays/mini expert reports out there now varying from a few 100 words to several 1,000.

The following nine (9) reasons and comments elaborate on why I blog.  There’s a summary and references at the end if you’re quite busy and haven’t got a lot of time.  Reference 10 is a good read about managing cost.

The REASONS

REASON 1

I want parties involved in dispute resolution or insurance claim settlement to know something about the nature and methods of forensic engineering investigation – what you get when you retain an expert.  Not how to do the work, just to have some idea of what we do to help you solve your problem.

Comment: For example, the surprising value of one of the newer investigative methods like a low flying drone fitted with a GoPro camera taking video at the scene of a failure or accident in the built environment.

Older methods like terrain analysis – identifying features on the ground from the air and how they relate to your problem, but doing this much more reliably from a few 100 feet high rather than several 1,000 like in the past.  And simple methods like simple, high school math.

An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site and where the fuel oil went.  I was surprised at what I saw.  Aerial video of another site is helping me assess if the site is contaminated decades after a spill.  And still another, the geometric design and safety of a site.

Simple high school math was key to learning the disputed height of a feature in the landscape.

Smart phone video of the reenactment of a power tool accident showed how the accident likely happened.

I want to describe how we carry out reliable investigations, observe, test, study, synthesize, analyse, think-on-paper, draw conclusions and formulate objective opinions.  Then present reliable evidence to the parties involved in a dispute or claim, and to the court or tribunal, in simple, non-technical English.

Forensic civil engineering is not high tech but it does require reliable work and good expert report writing.

Why is Reason #1 a particularly good reason?  It’s because parties to a dispute have obligations with respect to the expert’s report or affidavit. (Ref. 1)

For example, parties in a litigious matter must learn about the technical subject to which the evidence relates in order to identify the relevant technical issues.  He or she has an important duty in the presentation of technical evidence to ensure it’s properly understood by the court or tribunal. (Ref. 1)

As well, parties to dispute resolution and claim settlement have an obligation to monitor  cost in view of the often small to medium size-sized disagreements in the Atlantic provinces – and their sometimes less than affluent nature.  This is because the extent and cost of an all-stages forensic investigation is often similar regardless of whether the engineering failure or personal injury is small, medium-sized, catastrophic or terrible.

It’s difficult for parties to a dispute or loss to carry out their obligations, and also monitor costs, without some understanding of how experts work.

REASON 2

I also want to help readers understand why a forensic engineering investigation can be expensive.

Comment: The expense has everything to do with carrying out a reliable investigation and rendering a well reasoned opinion, as expected of the expert.  At the very least, following routine investigative procedures in an effort to ensure that no stone is left un-turned. (Ref. 3)

We don’t know when we start what we’re going to find that we must investigate – the surprise, follow-the-evidence situations.  Every failure and accident is different. (Refs 4, 5 and 6)  Not enough time and money is no excuse if we miss something.

Parties to a dispute or loss can assist, with some understanding of forensic work, by identifying and selecting the relevant technical issues early with the assistance of the expert.  This can be a big cost cutter.

REASON 3

To help parties to a dispute understand the importance of retaining an expert early in all matters, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential issue are being assessed. (Refs 7, 8)

Comment: At present, experts are too often retained months or years after a case is taken and after the cost of the forensic investigation has been estimated by other than the expert.  This is contrary to the advice of some of the most senior members of the legal profession. (Ref. 9)

For example, I was retained by counsel 11 years after a personal injury.  I visually examined the site and reported on what could have been done to prevent the accident.  The case settled four (4) months later.  To give counsel credit, he instructed me on the relevant technical issues which reduced the cost in this case.  This type of instruction doesn’t happen very often.

REASON 4

To help the justice system understand what they should be getting for the money spent on forensic investigation: That is, reliable investigations, well thought out expert opinions, and well written reports.

Comment: Rules governing experts have placed greater emphasis on the investigation and the expert’s report, to encourage the settlement of cases without going to discovery and trial.

There are excellent guidelines on forensic investigation and also on writing an expert’s report.  And excellent books, in general, on writing well.  I’m not sure these are being consulted to the extent they should.  I recently saw poorly written reports by a forensic firm claiming to have 18 different experts on staff.

REASON 5

I want to understand the forensic engineering field better myself, to learn by writing the blogs and thinking-on-paper – particularly, on how addressing the technical issues supports the resolution of disputes.

Comment: Like all of us, I’m learning all the time.  Most recently about the value of low cost, initial hypotheses on the cause of problems based on very limited data.  This task could save counsel money – as long as it’s remembered they are initial hypotheses.

For example, I hypothesized with considerable confidence on the cause of a catastrophic bridge failure during construction (Edmonton) – based on study of photographs in a newspaper.  In another, the cause of the sloping, sagging floors in a multi-story building (Halifax) – based on a visual examination of the floors and knowing how these types of buildings are constructed.

Cases are also being settled today based on simple verbal reports after the technical issues are addressed.  In some cases not even a verbal report because counsel is on site and sees the results of the expert’s investigation unfold before his eyes – this happened during a slip and fall accident that I investigated.  I don’t think counsel could believe what he was seeing.

REASON 6

I want to increase my understanding of the dispute resolution and claim settlement processes.

Comment: Experts have a duty to acquire some understanding of these processes.  For example, the justice system expects this in civil litigation.

I researched and posted 10 blogs on the role of a professional engineer in the civil litigation process for the benefit of counsel and their clients. (Ref. 8) I learned a lot during this research.  I was assisted by senior counsel in preparing drafts of two of these blogs.

It’s also been an eye-opener to learn of the dichotomy between the party’s right to justice and the expense of getting it.  Associated is the conflicting interests of the different parties to the process.

For example, the court, while encouraging counsel to expedite cases and control costs, wants good evidence and a reliable opinion – which takes time and money.  The expert needs to do thorough investigative work to get this evidence.  He expects to get paid according to his schedule of fees, his level of expertise and the responsibility he bears.  If the party has retained the expert on a fee basis, he doesn’t want to spend any more than necessary.  If counsel has taken the case on a contingency basis and retained the expert, he wants to protect the worth of the file to his firm.  Quite a mix of interests.

REASON 7

Because of a sense of obligation to my readers who have seen the blog for seven years now and perhaps have come to expect it to fill a void that was there.

Comment: Feed back suggests you do get something from my descriptions of the nature and methods of forensic engineering, and my comments on related matters.

A senior lawyer in Atlantic Canada said, “I love that stuff..!!”.  Another senior legal chap on the east coast commented, “…like reading them.”  And an insurance claim consultant said, “I read every one”.  It’s hard to beat testimonials like that.

I mentioned above that two senior counsel helped me with two of the blogs on the role of professional engineers in the civil litigation process – critiqued the blogs before their posting.  One of these noted that experts are invaluable to civil litigation.

A chap who blogs on business ethics, Dr. Chris MacDonald, Toronto, and has an international reputation in his field – Chris is on a list of 100 influential business people that includes Barack Obama – saw fit to advise his twitter followers of my blog.

A monthly periodical on engineering construction – with an international distribution of 10,000, sought permission to publish one of my blogs.  The issue had a forensic engineering theme.  They came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In seven years, only about 10 readers asked to be removed from my distribution list.  This was because they were retired or the subject did not relate to their field of practice.

Overall, quite a good reception suggesting there was a void, and I’m filling it and making a contribution to the dispute resolution and insurance claim settlement processes.

REASON 8

“It’s my soap box”, one colleague said of why I blog.

Comment: There’s some truth in that particularly when I see inadequate forensic investigations, poorly written expert reports and questionable practices.  I vent but you don’t know it because it’s well disguised.  It feels good afterwards, and there’s almost always a lesson in my remarks.

REASON 9

For that satisfied feeling that comes from creating something – a piece of literature that did not exist before

Comment: A few months after I started blogging in June, 2012, I noticed a feeling of satisfaction after posting an item, a mild elation.  It was subtle but there.  On reflection, I realized I felt good because I had created something – a piece of literature that didn’t exist until I put pen to paper.  So, I blog for that satisfied, creative feeling too.  You all know how elusive that feeling is in our busy work/social, balanced-challenged lives.

On further reflection, I realized the feeling was also about finally publishing information on a topic or technical issue useful to my readers – finally letting it go.  I like my blogs to be as clear and well written as possible – in a sense, like well written, mini expert reports.

SUMMARY

In summary, the reasons and comments on why I blog might look like this:

1. To give you an idea of forensic engineering methods that help resolve disputes and settle claims
2. Help you learn why forensic engineering is sometimes expensive
3. Explain the importance of retaining an expert early and ways this can be done cost effectively
4. To understand better myself how addressing technical issues resolves disputes and claims
5. Increase my understanding of the forensic engineering field and how it  contributes to the resolution of disputes and the settlement of claims
6. An obligation to my readers who enjoy the short essays on topics of mutual interest
7. My soap box for venting on practices in our respective fields that are not good
8. I like to write, to create something that didn’t exist until I put pen-to-paper
9. For that satisfied feeling on creating a piece of literature that didn’t exist before

REFERENCES

1. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014
2. Peer review costs can be controlled.  Posted January 22, 2016
3. Steps in the forensic engineering investigative process with an appendix on cost.  Posted July 15, 2013
4. What do forensic engineers investigate in Atlantic Canada.  Posted October 9, 2014
5. Forensic engineering practice in Eastern Canada.  Posted May 7, 2015
6. How many ways can a building fail and possibly result in civil litigation or an insurance claim?  Posted July 10, 2014
7. The role of a professional engineer in counsel’s decision to take a case.  Posted June 26, 2012
8. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
9. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell
10. Principles governing the cost control of dispute resolution and claim settlement involving experts.  Posted July 30, 2019

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada August 15, 2019 ejorden@eastlink.ca)   

I can’t help thinking that low level, aerial photography from drones then simple terrain analysis of what is captured in the video will find the alleged killers in northern Manitoba.  Even if they’re dead, as I can hardly imagine them otherwise in terrain like that.

I’ve worked in that kind of terrain here and overseas and it’s unforgiving.  Load heat-sensing gear on the drones and it’s a no-brainer finding them if the photography is  flown properly.

Terrain analysis involves identifying features on the ground and considering how they relate to your interests.

Aerial photography using drones and terrain analysis is well developed in civil engineering.  I know the police forces have picked up on the technology and learned well and are using it to good advantage in Manitoba.

I’ve used drone video on several forensic investigations including two kilometre-long sites, one covered by forest.  You can pick out a tennis ball with a drone flying at tree top level in that terrain – a few 10s of feet up.  A white face or hand would show quite nicely against the green forest floor.  I can imagine a pattern of foot prints across muskeg would show nicely too.

You can fly a drone across a couple of kilometres of terrain in minutes, study the video, analyse the terrain, stop and start the video every few seconds, take frame grabs, take out a magnifying glass and look closer still, etc., etc.

I flew the forested area in a recent case with people on the ground and got reams of data and evidence – not unlike what is possible in Manitoba and likely what is being done right now.

In a hunt like this, you track back and forth on a grid over the area of interest taking aerial photography as you go.  You can cover hundreds of kilometres of terrain with drone-mounted video cameras in the few days the searchers have been there.

I can’t help but think, if the alleged killers are still there, dead or alive, they would be found.  I don’t think they are else they would have been found by now with the aerial surveillance.  It may be time to move on to another hot-tip search area..

OVERVIEW

The total cost of dispute resolution or claim settlement includes the cost of an expert’s services.  Properly incorporating these costs into a party’s total costs is essential to good management.  This requires knowing something about the services you’re buying – the nature and methods of forensic investigation and how these costs develop.

Principles are needed to guide a party managing these costs.  I concluded this after noticing that experts were sometimes retained months after a dispute arose or a claim made, occasionally years after. 

I also noticed that an investigation was sometimes stopped when the cost of the expert’s services exceeded the budget set by the party involved – a budget with a technical component set by a non-technical person.  I couldn’t help but wonder if the dispute resolution or claim settlement, and the injured parties interests, were sometimes compromised as a result.

I identified the following seven (7) principles to help the parties to a dispute or claim manage their costs.  There is a comment on each.  I say identified  because the principles have always existed but sometimes overlooked.

PRINCIPLES 1, 2 and 3 are fundamental to cost management.  You can’t go wrong if you follow these three.

(There are also good reads in the References as cited in the Comments)

I think of a party as one or more of the following:

1. Counsel and advocates
2. Insurers
3. Insurance claim managers, consultants and adjusters
4. Property owners
5. Architects, engineers, builders and contractors
6. Victims of accidents and failures in the built environment
7. Injured parties, in general, for whatever reason

***

For a long time in the Atlantic provinces, experts have played an important role in civil litigation, dispute resolution and insurance claim settlement.  You don’t hear about the majority of these issues because they involve small or medium-sized loses, failures and accidents.  They’re not catastrophic, breaking news.  Many are also less affluent. (Ref. 1)

But, affluent or not, they all require an expert to be thorough, reliable and objective even when investigating one, small technical issue.

It’s difficult to be thorough when you’re retained late in the process and impossible when your work is stopped mid-investigation.

A timely and reliable estimate of an expert’s costs, based on the forensic work he must do, is essential to good management – with informed input from the expert.  This is the case in civil litigation, for example, regardless of whether the file is taken by counsel on a fee or a contingency basis.

How serious is the omission?  Less than good management results when the expert’s invoices start to come in threatening the budget that the expert had no part in setting, and the expert’s services are suddenly stopped.

For example, I’m certain stopped in one claim involving the disputed height of a feature in the landscape, to the detriment of any damages entitled the injured party.  A height argued back and forth and up and down by three opposing parties in three discovery documents, with no good evidence.  Yet a height quickly and easily got by an expert with simple, high school math.

And in another case involving a slip and fall accident that resulted in the injured party changing firms.  Fortunately, in another slip and fall accident counsel was on site to see and photograph the expert’s investigation and testing – and saved the day for the injured party when the forensic work was stopped by management because of cost.

And in still another when a case involving a head injury settled four months after an expert was retained – 11 years after the case was taken.

Somewhat related, a confidential survey of remediation contractors for the National Research Council found that contaminated site remediation was costing more than it should, in many cases much more, for want of an expert – $35,000 billed instead of $5,000 incurred on one small cleanup according to a contractor. (Ref. 2)

It doesn’t have to be like this.  There’s enough guidance out there now to help a consultant or adjuster manage the cost of a claim, or counsel manage the cost of civil litigation. (Ref. 3)  Guidance that allows the expert to do his work thoroughly, reliably and objectively and serve the dispute resolution process properly.

This can be done while ensuring, as required by common law, that experts: (Ref. 4):

1. Be independent from the parties who retain them;
2. Provide objective, unbiased opinion evidence in relation only to matters within their expertise; and
3. Avoid assuming the role of advocates for the parties that retain them.

These requirements of experts are the same in all issues involving dispute resolution and claim settlement.  The great majority of experts know that they serve the process not the party, as found in a pilot study of 152 experts that have testified in Canada. (Ref. 5)

The requirements of common law also mean that an expert must engage on a fee basis rather than a contingency basis, and accounts kept up to date.

I realized that while there’s guidance in the literature, it needs to see the light of day.

I knew about the Principles Governing Communications With Testifying Experts developed by The Advocates Society, Ontario. (Ref. 1)

I identified the following Principles Governing the Cost Control of Dispute Resolution and Claim Settlement Involving Experts (the “Principles”) patterned on this document.  The Principles are intended to provide guidance in a similar way.

How did I identify the Principles?  For certain I was guided by the Principles Governing Communications with Testifying Experts.

But I also had insight from my practice in forensic civil engineering in the Atlantic provinces since the late 1980s.

As well, my blogging since 2012 on the nature and methods of forensic engineering was immensely helpful – including about 18 blogs on the cost of civil litigation involving experts. (Ref. 6)  You learn when you write.

Prior to my forensic work, I practiced civil engineering, specializing in geotechnical and foundation work, and often enough environmental site assessment and remediation.  I worked in eastern, western and northern Canada, off-shore Nova Scotia, and in the Caribbean, the U.K. and Australia.  I saw a few failures and accidents during that time.

Prior to engineering, I studied land surveying in Nova Scotia and practiced on Prince Edward  Island.

In addition, drafts of the Principles were read by colleagues in engineering and a civil litigation lawyer.  All offered good comments.  Those by the lawyer and a town planner were particularly helpful.  I tweak the Principles from time to time based on comments by readers.

The Principles are not intended to address the cost of all disputes and claims but to provide some guidance on managing those involving experts.  The Principles focus on:

1. Early retention of an expert
2. Frequent conferring with the expert
3. The estimated scope of an expert’s services and costs
4. The experts’s greater qualification for assessing technical costs
5. Early incorporation of the expert’s costs into the dispute resolution process 
6. Frequent updating of cost as evidence comes in
7. The shock of the financial realities in dispute resolution (Refs 4 and 10)

As with the Principles Governing Communications with Testifying Experts, the hope is that by adhering to the following Principles, parties to a dispute or claim will fulfill their duties to their clients and customers at a well managed cost without compromising the work of experts.

The PRINCIPLES

PRINCIPLE 1

A party should consult early with an expert about the cost of investigating a dispute, an insurance claim, a failure in the built environment or an accident.  In the case of civil litigation, preferably before the case is taken during the merit-assessment stage.

Comment

The emphasis in Principle 1 is on “consult early”.  This can’t be emphasized too greatly.  Too many cases are taken and disputes go forward only to find months or years after the fact – when an expert is finally consulted – that more investigation is needed than there is budget.

Managing the cost of an issue starts with an initial cost estimate, and the technical component of the cost can only be estimated by an expert.  Expert consultation at an early stage costs money but very little compared to the cost of a technically weak dispute or insurance claim found out too late.

Properly managing cost starts by identifying the different expenses contributing to the cost.  When one of the expenses is a personal service like an expert, engaging with the expert early is good cost management.

PRINCIPLE 2

A party should recognize that the expert is the person best qualified to estimate the cost of his or her services based on their assessment of the scope of an investigation of the technical issues.

Comment

The cost of an expert’s services can only be estimated by the expert, and only after he or she has estimated the scope of their work by carrying out tasks such as the following:

1. Taking a briefing by the party on the failure or accident
2. Reviewing available documentation
3. Visually examining the site, either virtually or in person
4. Identifying the technical issues in consultation with the party

Emphasis must be placed on estimated because not even the expert knows where his investigation will lead if he follows-the-evidence.

It helps if a party confers with the expert and gains some understanding of the investigative process and how costs develop.  This in a manner similar to how an expert is expected to have an understanding of the judicial process in a civil litigation matter.

PRINCIPLE 3 

A party should confer often with the expert during the investigation and get frequent cost-to-date and estimated cost-to-complete the expert’s work at key stages during the forensic investigation.  Then add these to the cost-to-date and cost-to-complete the party’s cost to get up-to-date total costs of the dispute resolution.  

Comment

This is a key and ongoing task in the cost control of civil litigation, and in dispute and claim resolution, in general.

Conform to this principle and you’ve got hard data for controlling your costs.  This is a fundamental principle in the well developed field of project management. (Ref. 3)

The scope of an expert’s investigation may change and be greater or less than initially assessed.  The importance of some conventional tasks may fade while unexpected follow-up tasks may need to be considered.

Care must be taken with undue focus on a budget.  There’s no question one needs to be set but it must not be perceived as a fixed price for which an expert agrees to do all that is necessary.

In civil litigation, for example, counsel and expert must each have some understanding of the other’s role to make it work.  Key stages in both the legal process and the forensic process are well known.

Also well known in project management is that the cost-to-complete a project is (1) very approximate at the beginning, (2) gets better as a project goes to completion and is (3) quite accurate towards the end.  This applies to all dispute and claim resolution involving experts.

It doesn’t help, of course, that we occasionally have situations where estimating the cost to investigate a catastrophic failure or a terrible accident is sometimes easy, and estimating the cost to investigate a simple failure is sometimes difficult. (Ref. 7)

It helps to learn why it’s difficult for an expert to identify and estimate the cost of all the tasks in a forensic investigation.  It varies from easy, to difficult, to very difficult, to impossible. (Ref. 8)

It’s important for a party to have a plan for managing the cost of investigating the technical issues.  For “taking the measure” of the dispute resolution or claim settlement and the expert’s costs at key stages in the process.  This in the spirit of “If you can measure it you can manage it” that’s cast-in-stone in engineering. (Ref. 9)  Such a plan is reflected in Principle 3. 

PRINCIPLE 4 

A party to a dispute involving experts must recognize that he is managing a potentially expensive process.

Comment

Remember in civil litigation that “…most clients are unfamiliar with the technical and procedural aspects of litigation.  They are also unfamiliar, and shocked, by the financial realities”. (Ref. 4)

“It’s necessary to fully explain the “facts of life” at an early stage using a delicate touch so that the client does not become completely discouraged from enforcing his rights.” (Ref. 4)

I believe David Stockwell’s comment speaks in part to the fact that the cost of civil litigation, and all dispute and claim resolution, including that involving experts, can be controlled but only to a limited extent – part of the financial realities.

“A lawyer just doesn’t walk into court – a lot of preparation is necessary beforehand”. (Ref. 10)  Similarly, an expert just doesn’t write a report and render an opinion on the cause of a failure or accident in the built environment – a lot of investigation is sometimes necessary beforehand.  Some cases don’t go forward properly until the expert’s work is done, and some don’t go forward at all.

PRINCIPLE 5 

Counsel can manage costs better by retaining an expert according to the needs of the case, basically as a consulting expert or a testifying expert.

Comment

Civil Procedure Rules governing experts are resulting in more out-of-court resolution of disputes.  As a result, experts will be increasingly retained as consulting experts.  There are different ways this can be done with different costs. (Ref. 11)

There’s a big difference in expert costs between the least expensive where you retain an expert to (1) do a virtual visual site assessment (no site visit and walk-over survey) (Refs 12 and 13) or to (2) peer review the work of another and report verbally – more expensive but good insurance. 

To the most expensive where you retain an expert to (1) carry out a detailed forensic investigation, (2) collect data (3) analyse data, (4) draw conclusions, (5) formulate an opinion and (6) write and submit a report compliant with the Rules.

I must say it again, getting an expert to do a virtual visual site assessment at the beginning of a forensic investigation is the least expensive way of retaining an expert.  And often enough, such an assessment shows where the forensic investigation is heading giving good reason to stop and agree a resolution.

There are differences between the cost of a verbal report and a written report at any stage of an investigative.  There are also differences between a factual report when the expert gives the data only, and an interpretative report when the expert analyses the data and gives the analysis as well.

The “hot tub” method of resolving differences between expert’s findings and opinions is another cost effective way of working with consulting experts. (Ref. 14)  Experts for the different parties in a dispute or claim (1) meet with their different reports, (2) discuss these, (3) resolve their differences and (4) agree a single report on the matter.

PRINCIPLE 6 

A party should confer with the expert to understand the technical issues and help identify the key one(s) that must be investigated.

Comment

Start this process – it could be ongoing as investigative data comes in and the technical issues change – as soon as the expert has been briefed on the dispute and had a chance to assess an initial scope of investigation.  There will be good control of an expert’s costs if only one or two technical issues must be investigated compared to several.

In civil litigation, for example, cost is well managed when an expert has some understanding of the judicial process and counsel is similarly informed about the forensic investigative process – and they talk often about the relevant technical issues.  This understanding serves all the Principles well.

PRINCIPLE 7

Beware the tyranny of the bottom line – the effect of undue focus on the worth of the file to the firm on the thoroughness, reliability and objectivity of an expert’s work and also on any damages due the injured party. (Ref. 15)

Comment

A firm must make money else there won’t be someone there to represent the interests of the injured party.  But care must be taken that a balance is struck that is consistent with good dispute and claim-resolution processes and forensic practice, and the appropriate interests of the injured party.

References

1. The Advocates Society, Principles Governing Communications With Testifying Experts, Ontario June 2014
2. Jorden, Eric E., How to Reduce Oil Spill Damage Claims; Early Study Results, Atlantic Claims Journal, The Official Journal of the Insurance Claims Association of Nova Scotia, November 12, Winter 2002
3. Kerzner, PhD, Harold, Project Management; a Systems Approach to Planning, Scheduling and Controlling, 8th ed, 2003, John Wiley and Sons, Inc., Hoboken, New Jersey
4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
5. Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018
6. A Bundle of Blogs: How to Manage the Cost of Civil Litigation Involving Experts.  Posted August 31, 2017
7. (Fairly easy) estimating the investigative cost of a catastrophic engineering failure. Posted August 13, 2013
8. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2013
9. “If you measure it you can manage it” – and do thorough forensic engineering, and cost effective civil litigation.  Posted June 18, 2015
10. “A rose by any other name …”, Primers for lawyers.  Posted December 19, 2016 (Note comment by Ron Rizzo, Pink Larkin, Lawyers, Halifax)
11. How to retain an expert in a cost effective way.  Posted November  30, 2018
12. What can you get from virtual visual site assessment about the cause of leaning retaining wall?  Posted November 13, 2020
13. A Bundle of Blogs: On using visual site assessment in forensic investigation.  Posted January 25, 2021
14. “Hot tubing” experts reduce the cost of civil litigation and ensure objectivity.  Posted March 31, 2018
15. Professional ethics and the tyranny of the bottom line.  Posted October 11, 2011

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada July 30, 2019 ejorden@eastlink.ca)      

(Updated by Eric E. Jorden, M.Sc., P.Eng., September 24, 2020, March 18, 2021 and December 30, 2021)