Recent news coverage of archaeologists investigating the ground got me thinking about using their method in forensic investigation.  It’s called ground penetrating radar, GPR for short.  It sounds technical but it’s not really.  It’s simply a radio transmitter and a receiver.

The device sends radio waves into the ground, processes their reflection from a buried object and displays the results on a computer monitor.  The display is analysed and the nature and depth of the object is determined.  Airports send radio waves out all the time to identify your inbound flight from Toronto and how near you are to landing.

GPR is used to look for objects of interest below the ground surface.  Things like old skating rinks, stone walls and graves as reported in the news stories on archaeological work at the Halifax Commons and Grand Pre in Nova Scotia and at Sydney Mines in Cape Breton. (Refs 1 and 2)  The work on the mainland is by Jonathan Fowler, Saint Mary’s University and in Cape Breton by Maura McKeough, Parks Canada.  GPR can also be used to identify the depth to the water table, different layers of soil and rock and voids in the ground.

There was a news report a while ago about a house in Nova Scotia collapsing into a void.  GPR could be used to locate voids like this before a house was built.

i used GPR during an engineering investigation in the Bahamas looking for voids in the limestone beneath an airport runway.  The voids are called banana holes.  I understand they got this name because banana plants grow there when the roof of the void collapses exposing it at the surface of the ground, or a runway.  The voids form when ground water dissolves the limestone.

You can imagine the civil litigation that would result if an aircraft on landing caused the roof of a banana hole to collapse and the aircraft to crash.  Particularly considering the ready availability of remote sensing methods like GPR to locate voids.

These methods are remote sensing – non intrusive – like CAT scans, X-rays and Ultrasound in medicine.  No surgical cutting a patient ‘s body to see the tumor and no digging in the ground to see the void.

On a personal note, my re-awakened interest in this method was also its possible use in locating the unmarked grave of my baby sister in a cemetery in New Brunswick.  My mother had a 7.5 month premature baby – Baby Hazel – who died 2.5 days after she was born.  My sister’s casket would display on a GPR monitor as an unusual feature in the soil.

I don’t know when the need to use GPR during a forensic investigation will arise but I’m certain it will.  I can imagine it resulting in a more cost effective forensic investigation in some instances as well.  Almost any civil litigation involving the ground might be a candidate.

i chanced to see a drone fitted with a camera taking low level, aerial video several years ago and now consider getting aerial video with a drone of all my forensic sites involving the ground.  Who knows when and where ground penetrating radar, GPR, might be useful during a forensic investigation?

References

1. Fowler, Jonathan, professor of archaeology at Saint Mary’s University, Halifax, NS as reported in The Chronicle Herald, Halifax, Saturday, July 18, 2018
2. McKeough, Maura, cultural resource manager, Parks Canada as reported by CBC June 29, 2018

During the past six years, I blogged to help you gain some understanding of the nature and methods of forensic engineering in the event you may need an expert.  Just so you know something about the services you’re retaining.  See Earlier Blog Update below for quite a good read

I also like to write.  I belong to a group that could be characterized as a story-writing and story-telling group.  Reporting on a forensic investigation is like telling the story of the investigation; a good way of explaining it to the judicial system.

But I’ve realized the last couple of years that striving to write expert reports and blogs well trains me in another way: To think and analyse on paper, draw conclusions and formulate an opinion on the cause of an engineering failure or personal injury.  Then document the investigation and results in a well-written expert’s report.

Like last year, when drafting this annual Why? blog, I’m now in the middle of an investigation and the fixing of a problem that is benefiting from thinking-on-paper.  In this case it’s a non-textbook problem in the extreme – underpinning a structure founded on an old, rubble fill that was quite unstable in the past and still is a little.  I’m also giving much thought to the standard of care – what would my peers have to say about fixing a problem like this?  I doubt there’s much relevant experience in the Atlantic provinces.  Also like last year, the fixing will go on for a while yet as I turn the situation and the data over in my head and squeeze out the way forward on “paper” – the word processor..

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

• Investigate the cause of a failure or accident
• Examine and observe
• Do a subjective assessment (like in the SOAP procedure in medicine)
• Measure and test
• Research
• Analyse data
• Do an objective assessment
• Draw conclusions
• Determine cause
• Formulate an opinion
• Present reliable evidence to counsel and the court or tribunal in simple, non-technical English verbally and in well written experts’ reports

(Like lawyers, experts don’t write a report and walk into court or a tribunal without a lot of investigation and preparation beforehand. After Ref. 1)

Reaping the benefits of writing/blogging is not unique to me nor is it new.  Journalizing in some form as a means of working things out – your thoughts, drafting a talk, a preliminary report, noting an item to remember – has been around a long time.  I carry a notebook with me most times, like I’m sure many of you, to capture a thought along the way.

It’s just that it’s not so very technical-sounding – thinking-on-paper – even though it has an important role in the different stages of forensic investigation.  I like to think, “I knew that!”, the benefits, but the penny has dropped several times in the last two or three years and made a louder noise each time.  It’s a nice thought, that I’m thinking-on-paper when I’m blogging, and learning and having fun doing it.

References

1. Pizzo, Ron, Pink Larkin, Lawyers, Halifax, Wrongful Dismissal Primer: What to Know When an Aggrieved Employee Walks Into Your Office.  APTLA Conference, Halifax, November, 2016

***

Earlier Blog Update: Why do I blog on forensic engineering investigation?  Posted July 22, 2016

I blog because I want you to know about an interesting field of engineering that I enjoy and that contributes to the resolution of disputes – a nice way to practice.  Also, an engineering practice that is relevant to the field of practice of many of you.

To some extent, ours is a litigious society and one with a lot of insurance claims involving engineering failure and personal injury.  Inherent in this situation are technical obligations for counsel and their need to know something about forensic investigation.  Some cases don’t go forward or claims settle until the technical issues are identified and investigated by an expert.

In many cases, an important duty for counsel is ensuring the technical evidence is properly understood by the court or tribunal. (See the Comment on Reason #1 below, also Ref. 1) There are other reasons I blog – I’ve identified and listed eight (8) below – but this is an important one.

I identified the following reasons by reflecting on the 174 blogs that I’ve posted in the last few years.

Why do I blog?

Reason #1 I want to describe the nature and methods of forensic investigation for counsel and insurance claim consultants, to help you understand what forensic engineers do.  Included are some of the newer methods like a low flying drone fitted with a camera to photograph the scene of an engineering failure or personal injury.

(An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site.  I was surprised at what I saw.  Aerial photographs of a another site is helping me assess if the site is contaminated decades after a spill)

I want to describe how we carry out independent investigations, observe, analyse, draw conclusions and formulate objective opinions.  Then present reliable evidence to counsel and the court or tribunal in simple, non-technical English.

Comment: Why is this a particularly good reason?  It’s because I’ve learned that counsel has obligations with respect to the expert’s report or affidavit. (Ref. 1)

In many cases, counsel 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)

Counsel also has an obligation to monitor the cost of civil litigation in view of the often small to medium size-sized cases in the Atlantic provinces – and their sometimes less 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 or catastrophic.

Costs can be controlled to some extent by how an expert is retained and how early.  There are at least eight (8) different ways of retaining an expert. (Ref. 2)

It’s difficult for counsel to carry out their obligations to the court or tribunal 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 thorough investigation and rendering a reliable opinion, as expected of the expert by the court or tribunal.  For certain, following routine investigative procedures in an effort to ensure no stone is left unturned. (Ref. 3)

As well, we don’t know when we start what we’re going to find that we must investigate.  Every failure and accident is different. (Refs 4, 5 and 6)  And then there are the surprise, follow-up investigations.  Not enough time and money is no excuse if we miss something.

Counsel can assist – with some understanding of forensic work – by identifying and selecting the relevant technical issues early in the case with the assistance of the expert.

Reason #3 To help counsel understand the importance of retaining an expert early in all cases, affluent and less affluent alike, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential case 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, thorough investigations to ensure the quality of the evidence and the reliability of an expert’s opinion, 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, so said the owner.

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 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.

Reason #6 I want to increase my understanding of the civil litigation process.

Comment: Experts have a duty to acquire some understanding of the process.  The justice system expects this of us.

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 claimant’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 claimant 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 six 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 claims 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 them before their posting.  One of these noted that experts are invaluable to civil litigation.

A fellow 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.  Then they came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In six years, only about 10 readers requested removal 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 that I`m making a contribution to the civil litigation process and to insurance claims management.

Reason #8 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.  You all know how elusive that feeling is in our busy work-life, balance-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.

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

It can happen to any of us, and it finally did to me.  I was tyrannized by the obvious when investigating the cause of flooding in a large, three story building.

A building renovator called me after water was seen on the furnace room floor by staff of a veterinary practice.  They had gone to the room where materials were stored and saw a few millimetres of water on the floor.  Not a lot but still.

The renovator said the building which was erected in the 1960s was on a concrete, ground-floor slab, on low land and near a lake.  The furnace room was enclosed by concrete block walls.  The flood water had pooled on the slab.  He estimated that the concrete floor slab was about five feet above the nearby lake surface.

When i went to examine the site I saw that the five feet was about right and that the furnace room was an estimated 50 feet from the lake shore.  I was also told that the lake level was higher than normal due to a lot of rain this spring.

The grounds around the building sloped down slightly to the lake shore.  The front and right side of the building were paved.  There was a lawn at the back and an old paved boat ramp on the left.  The surface of the boat ramp was bumpy after many years.

The corners of the furnace room were still wet where the concrete block walls rested on the concrete floor.

I had a good look around then walked across the floors of the different rooms in the practice.  They were a little uneven which wasn’t so unusual for an old building.  But my look around wasn’t as good as it might have been and I neglected to look in the small room adjacent the furnace room.

My examination complete I met with the owner and the renovator.  I noted how the water rises in a lake during frequent rain storms.  It also rises in dug wells.  The water in a well is the water table. The surface of the water table in the ground near a lake shore is usually higher than the lake.  There is also water in the soil above the water table due to capillary action – this is when water rises in the small voids in the soil above the water table (Check high school physics)

This higher water table plus some surface water runoff across the asphalt at the side of the building could explain the presence of the water in the furnace room.  It was obvious.  I mean, the building was so close to the lake with high water levels not seen in recent years and the furnace room floor was near the lake surface and the water table.

The irregular boat ramp was typical of frost heave due to water in the ground – a high water table and capillary action during wet springs over the years – and would back up this obvious conclusion further.

I talked about different ways of preventing water getting into the furnace room.  These included the obvious – terrible word – better perimeter footing drains and/or a sump pump.in the furnace room.  A sump pump is a pump in a depression or hole in the ground – a sump.

The sump pump was decided on as the least expensive and one that could be constructed several feet below the water table to draw it down below the furnace floor.  That decision was left with the building renovator.

I left the site after about an hour – an efficient examination and consultation, or a  hurried one?

A few hours later the renovator called to explain that a staff member had gone in the wash room – the one room I hadn’t gone in – adjacent the furnace room and found a burst water pipe, the real cause of the flood in the furnace room.

I was tyrannized by the obvious and guilty of expectation bias.  The moral of the story?  If it’s obvious, keep on truckin’ and do more investigation.

The logjam is between the view of experts and their evidence as held by the legal community and the view as held by experts themselves – one negative and not so well founded and the other positive and more evidence-based.  Experts are breaking the logjam by speaking out, telling it like it is not how the court perceives it to be.

We should all read Ruth M. Corbin’s excellent paper, Breaking the Expert Evidence Logjam: Experts Weigh In, and some of the 65 citations, on the disconnect between the court’s perceptions of experts and the views of the experts themselves. (Ref. 1)  It’s interesting, and surely embarrassing, that the court’s views are not so evidence-based.

Read the themes and gaps in perception that Dr. Corbin found in a pilot study:

• that included 152 experts who have testified in Canada – that’s a lot
• then reflect on the cause of this disconnect – I’ve got my views
• see ideas for fixing the problem that resonate with courts and experts alike, and,
• read Ruth’s call for additional, more quantitative studies to firm up her findings.

I heard Ruth present her paper at the recent Expert Witness Forum East in Toronto on February 27 and read and studied it three times since.  Its well written – no technical and legal jargon here – and a good and informative read.  You can Google the paper’s title and her name.

The Paper’s Abstract

The paper’s Abstract is a good introduction (I took some liberties with Ruth’s abstract and broke it up into more paragraphs, and commented here and there.  I also tabulated the future steps):

    “Expert evidence is perceived by many as inherently suspect.  Effort world wide is being directed to improving the process by which valid and reliable expert evidence is delivered to triers of fact.  Curiously, experts’ input on process improvements has not been solicited. (That’s quite a revelation in my view!)  One is struck by the paradox that experts continue to publicly acknowledge an expert’s duty to the court and continue to swear oaths to that effect, and courts continue to disbelieve them.  Even with the wave of new rules about expert testimony in dozens of jurisdictions, the perception of a problem has not gone away.

“A research project was carried out among a broad range of Canadian experts (and a good sample size at 152) to identify gaps, if any, between the perceptions of experts and courts…….Five compelling themes emerged from the research (and six gaps between the views of experts and legal people), highlighting ambiguities and inconsistencies in interpretation of the expert’s duty.

“The paper concludes with opportunities for next steps in three domains:

1. Empirical research to strengthen the evidence-based foundation of future policy
2. Economical modeling to complement the Supreme Court’s call for a “cost-benefit” analysis of expert testimony (I believe, based on my experience in Atlantic Canada, that this modelling and analysis must include an identification of principles governing the cost control of civil litigation involving experts), and,
3. Practical steps toward creating a forum for direct communication between experts and courts (The duties of the middle man in the process, the advocate, have got to be modified a little)”   

Compelling Themes From Experts’ Comments

The five themes presented below are those topics most frequently identified by content analysis of written and interview-recorded input from the 152 experts.  Content analysis is the objective categorization of descriptive text into common themes.  There’s in-depth comment on each of the themes in the paper:

1. Duty to the court is universally acknowledged.  The concept, or even the explicit phrase, “duty to the court”, was universally acknowledged by the experts.  No one thought otherwise.
2. Mis-perception of motives,  “It’s not about the money”, volunteered many experts.  They rejected this view that experts are motivated by money, that they’ll say whatever in court to maintain a revenue stream.  The most frequent motive expressed was the interest and challenge of solving difficult problems for which their expertise was needed and valued.
3. Mixed signals from the courts: Independence, neutrality and opining on the ultimate issue.  Duty to the court was understood to entail principles of independence, objectivity and refraining from opinion on the ultimate issue.  However, experts who looked to court decisions found these principles to be ambiguously interpreted.
4. Risky surrogates of credibility and common sense.  Experts acknowledged that they had seen opposing experts take what they considered biased positions.  “Rogue” experts may have the charisma and comportment to have their opinions preferred by the courts, to cause judges to make errors in evaluating scientific evidence, based on “common sense”.
5. Appealing alternatives to adverse testimony with cautionary words.  It was widely observed that malfeasance should not be automatically presumed when experts disagree on interpretation of the same facts:  Collegial debates are endemic to academic life and professional forums.  Consistent with that view, hot-tubbing was met with widespread support among those whose views were canvassed.

Gaps in Perspective Between Law Professionals and Experts

Ruth’s paper tabulates the discovered gaps between published decisions and legal commentaries, and experts’ own views sourced in the course of the research presented in her paper.  The gaps are identified based on qualitative content analysis.  The differences in the published principle or presumption of the court and the compelling themes from the experts highlight the gaps for each of the following issues:

1. Objective value of the expert’s evidence.                                                           Gap: Experts are conscious of their duty of objectivity contrary to how the courts perceive them
2. Independence and objectivity.                                                                               Gap: Similar to previous.  Part of the problem is the court’s own confusion interpreting these terms.  Experts know what they mean; it’s interesting that courts don’t
3. Assessment of an expert’s credibility.                                                                 Gap: Charisma and comportment in court are trumping scientific evidence
4. Common sense standard.                                                                                   Gap: It plays a part in court but an understanding of what it is varies.  It should not override science, regardless of what it is
5. Motives of experts.                                                                                               Gap: Experts are driven more by curiosity and solving a problem than by money
6. Alternatives to adversarial evidence.                                                                     No gap here; a meeting of minds on reducing adversarial testimony with techniques like hot-tubbing. (Ref. 2)  This is the consensus-building north not the adversarial south

Summary

There is a logjam but the experts are helping to break it with objective comment and Ruth’s evidenced-based help.  The jam doesn’t reflect well on the court’s too subjective, confused assessment of issues at times and their susceptibility to undue influence from understandably biased players in the judicial process.

The experts are unjustifiably getting the short end of the stick in the process – perceived badly – but 152 experts can’t be wrong.  Their near universal understanding of objectivity, independence, what it means to swear an oath, and that they serve the court – no one else – is clear to the experts.  Less than 10% of experts have been found in rulings and comment to be biased.  What part of this understanding doesn’t the court understand?

The court’s perception of the expert is filtered through the advocate who presents everything from the expert to reflect best on their client, as s/he must.  The opposing advocate does the same.  The big picture is confusing and messy to the judge, particularly if it’s a scientific issue, and the expert is at the centre of it.  What’s a poor judge to do?  No wonder they have a jaundiced view of the expert.

But, Ruth’s research is setting the record straight with evidence-based data from experts, and hopefully more to come from bigger, more quantitative studies.  A judge need only read, listen and learn from the objective experts because we tell it like it is..

***

(A lot of the above has been taken from Dr. Corbin’s paper as I understood it.  Her paper on the hot-tub alternative to adversarial expert evidence is also very informative.  See Ref. 2 below)

References

1. 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 (Google it)
2. Corbin, Ruth M., The Hot-Tub Alternative to Adversarial Expert Evidence, The Advocates’ Journal, Spring 2014. (You can Google it too)

You might wonder, how is it possible for experts to avoid bias when there are so many types, like dozens?  Google “bias” and see what I mean.  I saw one link where the dozens were categorized under the letters of the alphabet.  Fortunately, it’s possible to do something about bias by learning about the key ones that can trip us up.

Speakers at the recent Expert Witness Forum East in Toronto identified categories of bias that experts must be alert to.  I was surprised by the number and the fact that some bordered on deliberate. (Ref. 1)

Experts must get familiar with the ones that can show up in our investigations and evidence.  This is a first step in rooting it out, and not being broadsided by a peer review, a rebuttal report or a cross-examination.  It won’t matter to those few given to deliberate bias.  But there are the rest of us, the great majority.

Two presentations on the first day of the Forum introduced us to implicit bias.  Initially with a talk on Addressing Implicit Bias On and Off the Stand (Ref. 2) and then with an Interactive Session. (Ref. 3)

Dealing with implicit bias

The interactive session made it clear that in dealing with implicit bias we must:

1. Understand implicit bias
2. Identify implicit biases
3. Reduce the influence of bias
4. Mitigate for the bias of the audience

Categories of bias in expert evidence

A presentation on the second day of the Expert Forum identified eight (8) categories of bias in expert evidence: (Ref. 4)

1. Selection bias (Hired guns)
2. Association bias (Advocacy)
3. Professional bias (Self-interest)
4. Data bias (Collection/Analysis/Availability)
5. Hindsight bias (Preventable outcome)
6. Noble cause distortion bias (Societal good)
7. Expectation bias (Anchoring)
8. Confirmation bias (Tunnel vision)

The speaker then went on to focus on the last two in the list and elaborated as follows:

Expectation Bias (Anchoring)

• The focus is on a particular observation/theory/information provided during early stages of investigation that prematurely predicts outcome and thus influences methodology and future decisions
• Behavioral sciences show that human judgement is powerfully affected by how problems are initially framed since humans are known by nature to unconsciously anchor on details they are initially given
• Requires additional experience beyond the first engagement with a lawyer, which can frame one’s thinking and becomes their frame of reference
• Inexperienced experts may not recognize when “relevant facts” are in the eyes of the client or litigator.  The expert should request all facts be made available, particularly submissions from opponents

Confirmation Bias (“Tunnel Vision”)

• A most insidious, subconscious tendency of those desiring a particular outcome to search for supporing evidence and/or ignoring or reinterpreting contradictory information
• Often develops from Expectation Bias (Anchoring)
• Scientists and engineers favour report findings consistent with their prior beliefs and expertise
• Confirmation bias requires a theory, goal or outcome to generate an attraction for bias

Examples of bias in Nova Scotia

Public examples

Expectation bias and Confirmation bias figured in the forensic investigation of the fatal accident of Janice Johnson in Nova Scotia that resulted in her husband, Clayton Johnson, going to jail for five years falsely accused of murdering her. (Ref. 4) The case was described in the presentation along with two others elsewhere in Canada, one a murder that was disguised as a suicide and another, a car accident.  I gathered from the presentation that expectation bias and confirmation bias figured in the faulty investigation of the latter two as well.

Personal examples

I have my own examples of bias in civil litigation.  One, a visual assessment of slope stability from the comfort of the investigator’s car, disparagingly called “a drive-by” evaluation in the real estate business and against some of their regulations.  And another, a critical assessment of the soil conditions at a site without a site visit.  I peer reviewed the technical reports on both these cases.

It was easy to conclude the “drive-by” type assessment at the one site because the poor construction and unstable slope were there to be seen by walking across and down the slope, particularly at the toe.  The slope was actually dangerous to walk across at the bottom.  The wording of the report exhibited Professional Bias (Self Interest), with an eye to the next forensic commission.

My second site was easy too because even non-technical people know you can’t define a surface properly with two points – simple high school geometry – and that would have been obvious with a site visit.  How do I know there wasn’t a site visit?  Because it wasn’t mentioned in the report I reviewed.  It’s an important task that would have been reported in detail in an expert’s report.

***

Getting familiar with bias will increase the chances that your case – expert and civil litigation lawyer alike – is not broadsided by peer review, rebuttal or cross-examination.  You can’t sabotage the dozens of different types of bias but you can learn about the few that creep into forensic work.

(Note: The numbered and bulleted lists in my blog were taken directly from the references)

References

1. Jorden, Eric E., Expert witness forum looks at bias and other touchy subjects in forensic work.  Posted March 6, 2018
2. Virji, Aly, Staff Sergeant and Moosi, S. Ali, Constable, Toronto Police Service, Addressing Implicit Bias On and Off the Stand, 3rd Annual Expert Witness Forum East, Toronto, February 27, 2018
3. Duncan, Peter, Instructor, Toronto Police Service, Addressing Implicit Bias: Interactive Session, 3rd Annual Expert Witness Forum East, Toronto, February 27, 2018
4. Perovic, Doug, Professor, Materials Science and Engineering, University of Toronto, Raftery, Barry, Forensic Engineer, Raftery Engineering Investigations and Lockyer, James, Lawyer, Lockyer Campbell Posner, Mock Trial, 3rd Annual Expert Witness Forum East, Toronto, February 28, 2018

One of the speakers at the recent Expert Witness Forum in Toronto, Dr. Ruth M. Corbin, referred me to a detailed description of the “hot-tub” method of dispute resolution that she had written. (Ref. 1, see also 2)  “Hot-tubbing” is legal jargon for a concurrent expert evidence process, and apt jargon at that.  Experts for all parties to a dispute get together in a court room and talk it out.  The method reduces court time and civil litigation costs involving experts, and increases objectivity.

Australia, where it originated, New Zealand, Britain and Canada are relying on the process more and more.  Other countries are taking an interest.  Adversarial America?  Not so much.

The method involves experts, with their individual forensic reports for different parties, meeting together in court before a judge and agreeing on a single expert report on the problem.  There is also a variant of the “hot-tub” process suited to other forms of dispute resolution outside a court.  This would be like a pre-trial conference and is usually in the absence of lawyers.

Seeing as more than 90% of disputes are settled out of court, and close to 100% for some types of problems, there is lots of opportunity for this method to resolve disputes.  Interest in a variant of “hot-tubing” is certain to increase in light of the Jordan decision by the Supreme Court of Canada last year.  The decision will further delay the hearing of civil litigation cases in court, at least in the short term.

To me, “hot-tubbing” is little more than a consensus-building process.  Experts do their individual forensic investigations, analyse the data, draw conclusions and formulate an opinion.  They then sit down together, peer review each other’s work, discuss the issues and reach a consensus on the cause of the problem.  Expert’s just want to solve the problem, explain the issues in simple language and get onto the next problem, particularly technical experts.  Most of us are not adversarial by nature, nor hired guns by a long shot.

Ruth’s paper is a good read in plain English with practical descriptions and examples of “hot-tubbing” in action.  The guidance and comment in her paper gets you almost to the point where you just might be able to do it yourself.  If not enough guidance, you can review any number of the 73 references and citations Ruth includes in her paper.

The “hot-tub” method is well developed in relying on the consensus building nature of experts.  But it’s not perfect as Ruth points out in three different ways.  One embarrassing defect is that development of the “hot-tub” method – to reconcile differences among experts – had little input from experts!

I can’t help but wonder if the cause of some of the civil litigation that is being resolved by “hot-tubbing” is because experts were not involved in the merit assessment stage of the cases, another embarrassment.  We get retained months or years after a case is taken and after the cost of the technical expert’s work is estimated by a non-technical person.

The omission of input by experts in development of the “hot-tub” method is recognized by people like Ruth M. Corbin and will be corrected over time.  Possibly this will be reflected at the merit assessment stage of a case and further reduce the load on the court system.

(Some of the comment in the above is taken from Dr. Corbin’s paper)

References

1. Corbin, Ruth M., The Hot-tub Alternative to Adversarial Expert Evidence, The Advocates Journal, Spring, 2014 (Dr. Corbin is Chair, Corbin Partners Inc., Ontario)
2. Biased experts cured with a soak in the “hot tub”, posted January 31, 2017

(https://s3.amazonaws.com/ci-presentations/378L18-TOR.zip)

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