(I thought to post this blog again after chatting with a friend and engineering colleague. He mentioned some time ago that he had been retained as an expert on a structural failure. I was surprised to learn the case was going to trial – in 2025, two years from now. This in spite of the fact that the expert reports have been submitted.

(I know that cases still go to trial. I also understand the courts are busy. But two years? This in spite of the fact there are good dispute resolution procedures like the “hot-tub” method – to use legal jargon – that has been well received and relied on in Australia, New Zealand, Canada and the UK. (Refs 14, 15 and 16) A procedure developed by lawyers.

(Also civil procedure rules like Rule 55 in Nova Scotia that govern experts and get them agreeing quicker. The Rule requires that the expert give their opinion and the reasoning behind it, and s/he draws attention to anything that could reasonably lead to a different conclusion.

(Both methods result in reports that emphasize agreement amongst experts, and note disagreement where some might exist. In a sense, even disagreement is agreed.

(There’s too much disagreement in the world. We must sit down and get back to basic principles and talk things out. Experts can show you how. Two years is too long. (Refs 5 and 15))

***

OVERVIEW

The total cost of dispute resolution or claim settlement includes the cost of an expert’s services.  Properly incorporating these costs into a claimant’s or party’s total costs is essential to good claim management.  This requires knowing 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 wondering 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 civil litigation, a dispute or insurance 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 s/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 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 and submitted a report on cause – 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.  My degrees were from the University of New Brunswick in Canada and the University of Birmingham in England. 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 for two years at the College of Geographic Sciences 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 insurance 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 also 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 comments speak 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. (Refs 14, 15 and 16)  Experts for the different parties in a dispute or claim (1) meet with their different reports, (2) discuss these, (3) resolve any differences where possible and (4) agree a single report on the matter that includes noting any differences.

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. 17)

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. Biased experts cured with a soak in the “hot-tub”. Posted January ???, 2017
16. Corbin, Ruth M., The Hot-tub Alternative to Adversarial Expert Evidence, The Advocates Journal, Spring, 2014
17. Professional ethics and the tyranny of the bottom line.  Update. Posted October 11, 2012

(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, December 30, 2021 and October 28, 2023)

There are hired guns out there who are wearing the Iron Ring: Engineering experts hired to do a specific and often ethically dubious job. (Ref. 1) This contrary to their taking part in the Ritual of the Calling of an Engineer – their Obligation – and agreeing to a certain standard of practice. Then accepting the Ring as a reminder. (Ref. 2) There are a few of this type out there in spite of the fact that the great majority of experts in Canada are ethical. (Ref. 3)

Question them on what they said during the Ritual. Come down hard on them, is what you do. Read the Calling, the Ritual below in the Appendix – take them through it, step by step. Engineers are up there next to the medical docs in the eye of the public; there’s an obligation to stay the course and be ethical.

For sure, leave the door open on the possibility that s/he has made a mistake. They have unknowingly stepped outside their sandbox and agreed to investigate a failure or accident for which they’re not qualified, or to find cause in favour of the client.

You can learn who you’re dealing with, and flush out the bad guys, by cross-examining them on each simple word or phrase in the Ritual. The intent of the Ritual is clear and presented in simple English that a smart high school kid can understand.

The Iron Ring and the Ritual of the Calling of an Engineer are more important to some of us than the piece of paper hanging on the wall – our engineering degree. My degrees are not even hanging on the wall. They’re framed but lying on top of a filing cabinet in my office.

I don’t think anyone has asked over the years if I have a degree. Really, just once if memory serves. On the other hand, many have noticed the Iron Ring on the little finger of my working hand and remarked. To be fair, it’s in plain view and the degree isn’t. That’s the idea, a visual reminder to the wearer, and reassurance to a client who might retain the engineer as an expert.

I’m not surprised at it’s importance, both to the wearer and the observer. The iron ring has been around a long time – 100 years in 2025, the anniversary of the first Ritual of the Calling of an Engineer.

References

1. Merriam-Webster Dictionary 2023
2. Dr. Google, The Ritual of the Calling of an Engineer
3. 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

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, October 13, 2023. ejorden@eastlink.ca)  

Appendix

Ritual of the Calling of an Engineer

I (name of the engineer) in the presence of these my betters and equals in my Calling, bind myself upon my Honour and Cold Iron, that, of the best of my knowledge and power, I will not henceforward suffer or pass, or be privy to the passing of, Bad Workmanship or Faulty Material in aught that concerns my works before mankind as an Engineer, or in my dealings with my own Soul before my Maker.

MY TIME I will not refuse; my Thought I will not grudge; my Care I will not deny towards the honour, use, stability and perfection of any works to which I may be called to set my hand.

MY FAIR WAGES for that work I will openly take. My Reputation in my Calling I will honourably guard; but I will in no way go about to compass or wrest judgement or gratification from any one with whom I may deal. And further, I will early and warily strive my uttermost against professional jealousy and the belittling of my working-colleagues in any field of their labour.

FOR MY ASSURED FAILURES and derelictions, I ask pardon beforehand of my betters and my equals in my Calling here assembled; praying that in the hour of my temptations, weakness and weariness, the memory of this my Obligation and of the company before whom it was entered into, may return to me to aid, comfort and restrain.

I was sitting and watching people walk back and forth at an accident site while recording some measurements I had taken earlier. The walk included stepping up and down at a change in level. It was a hot day and good reason to sit in the shade and do this. It came to me how valuable this was: Just sitting and looking and thinking. A real soft, empirical forensic technique.

I’ve done this before during a forensic investigation – look at something unfold – but it was during a re-enactment of an accident. This simple looking and thinking was different. It was natural not a re-enactment. It also was repetitious – happening over and over and over. It really helped me think through how the accident happened.

It occurred to me as I was doing this that it would be helpful to have a drone hovering above capturing the look from that angle. For that matter maybe several drones at different angles and elevations. But then that simple sit, look and think element would be gone. The walkers would get self conscious about being looked at and it would no longer be natural but more like a re-enactment.

I’ve done something similar during re-enactments of accidents in the pre-drone era – several repetitions – but the naturalness was missing. It doesn’t compare to watching one or two dozen walkers go back and forth.

Getting back to the sit, look and think experience, I didn’t even make notes in my field book, I just soaked up the scene as it unfolded before my eyes.

I’ve not seen a forensic technique like this in the manuals. Sitting in the shade watching people go back and forth. It was valuable but also relaxing. Should I have booked my time against the investigation – sitting, looking and thinking? Hmmm.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, September 28, 2023. ejorden@eastlink.ca)  

I was struck by how educational a good read of the National Building Code (NBC) can be, and how easy a read. Your eyes might glaze over sometimes but you’ll learn a lot about buildings and their components where most failures and accidents occur. Buildings are the most frequently built structure in the world.

You’ll get this education from generally quite good writing – small paragraphs (not fat), short declarative sentences, concrete words and good punctuation. For example, simple commas placed so the nuance is well understood – this really stood out for me.

The NBC sets out technical provisions for the design and construction of new buildings. It also applies to the alteration, change of use and demolition of existing buildings.

If nothing else, you will note that the NBC documents the minimum way a building and it’s components should be designed and built to achieve the objectives of the NBC – not necessarily what should be done.

Was the building or component built to the minimum standard as required by the NBC? Was the minimum adequate? Or was the requirement of the standard of care and a reasonable person applicable? (Refs 1, 2)

I know, just reading my suggestion that you take an interest in the NBC might cause you to nod off. But, understanding the building where your clients accident or failure occurred can help resolution of a dispute or settlement of a claim. If nothing else, you’ll talk in a more informed way.

The Appendix contains some excepts from the NBC. There’s one long, fat paragraph but that happens. The NBC still reads okay in my opinion.

***

The NBC in its present, objective based format was first published in 2005 and is updated every five years by dozens of specialists in different fields.

You can get the Code online like I do when reviewing it’s requirements during the forensic investigation of a failure or a personal injury.

References

1. A Bundle of Blogs: On assessing the standard of care. Posted August 12, 2023
2. How the standard of care is determined when a failure or accident occurs in the built environment. Posted June 28, 2014. Updated October 30, 2020

Appendix

The following examples were taken from the National Building Code (NBC) Volumes 1 and 2. I was reviewing the Code at the time for some work I was doing:

The NBC establishes requirements to address the following five objectives, which are fully described in Division A of the Code:

• Safety
• Health
• Accessibility for persons with disabilities
• Fire and structural protection of buildings
• Environment

Code provisions do not necessarily address all the characteristics of buildings that might be considered to have a bearing on the Code’s objectives

***

Because the NBC is a model code, its requirements can be considered as the minimum acceptable measures required to adequately achieve the above-listed objectives

***

Where a door at the top of a stair within a dwelling unit swings away from the stair, no landing is required between the doorway and the stair. (I personally don’t think this is adequate. Eric E. Jorden)

***

Except for dwelling units, the occupant load of a floor area or part of a floor area shall be the number of persons for which such areas are designed, but not fewer than that determined from Table 3.1.17.1., unless it can be shown that the area will be occupied by fewer persons. 2) The occupant load for dwelling units shall be based on 2 persons per bedroom or sleeping area.

***

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, September 13, 2023. ejorden@eastlink.ca)  

I mentioned in a previous blog how an expert’s investigation relies on Observation compared to laboratory and field testing. (Refs 1, 2) That blog described an investigation that contained many examples of observation and no examples of lab and field testing.

The following investigation contained many examples of laboratory and field testing – I will spare you the eye-glazing-over details – and one main observation that showed up at the end.

***

I was retained to investigate the cause of a fuel oil contaminated site in Cape Breton. It was an old spill from a fuel oil delivery truck that resulted in the evacuation of a home because of the fumes. A business on the property was also closed. The site was in a rural area on ground sloping down to a small lake.

Main question: Where did the fuel oil go?

The main question was the extent of the contamination – how far did the oil flow from the spill location. This involved sampling the soil at a number of locations beneath the house and testing for oil in a laboratory. This work found the limits of the contamination just beyond the house.

Previous work by others concluded that the ground beneath the business was not contaminated. This was based on one laboratory test of a sample of the ground some distance downhill of the business and excavation of contaminated soil at the spill location just uphill. This was forensic investigation light in my opinion – an observation.

Fuel oil rides along quite nicely on the surface of groundwater. This means that the depth to the groundwater and where it flows are important in cleaning up a contaminated site. I knew that the water table was at the lake surface and usually rose with the ground beyond a lake. But what depth was it at the spill site?

A topographic map of the area suggested that the groundwater was within 5 to 8 feet of the ground surface just uphill of the business. This was my subjective assessment, an observation after doing this kind of engineering work for years.

The owners of the property said later that the water in an old dug well just downhill of the business was at the ground surface so cows could drink there in the past. This reinforced my assessment of the depth of the groundwater at the spill site. Also that fuel oil contaminated the cow’s drinking water in the past downhill of the business and likely the soil beneath the business.

Tidying up

By way of tidying up and finishing my forensic investigation, I arranged for drone video of the site for record purposes. It also facilitated telephone discussion of my forensic investigation with my client – sort of like Zoom meetings today. I was taking this kind of video of all my sites by this time then distributing copies of the video to my client and interested parties. Sometimes these videos contained surprises at the end of the day, as you will see below.

I had the drone pilot sweep across the site at an altitude of 300 to 400 feet on the four points of the compass for the big picture then low at several 10s of feet over points of interest.

Studying the video later I was surprised to see a tongue of dark soil extending from beneath the rear of the business down hill beyond the cow’s water well. This indicated that the groundwater was at a shallow depth and that the soil beneath the business was probably contaminated with fuel oil. Also, that the test location by others was beyond the contaminated area. This was my main, almost single Observation during this forensic investigation – Example #2 – compared to many Observations in Example #1.

References

1. Observational Method: Example #1 Posted July 31, 2023
2. One forensic observation does not a cause make. Posted July 18, 2023

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, August 29, 2023. ejorden@eastlink.ca)  

I blogged on the extent to which an expert’s investigation of cause relies on Observation compared to laboratory and field testing. (Ref. 1) An example like the following will help understand this – a surprise observation at the end made it an enlightening investigation too. The observations are italicized in the following.

***

I was retained to determine the cause of water on the floor of a finished basement of a commercial building in Halifax. It was only a mini-flood but dangerous because the water was running down a basement wall, at the location of the electric supply to the building, and into an electric room.

The mini-flood, water problem

I was told by the owners and subsequently saw that the water appeared on the floor of the electric room, and a conference room beyond, a couple of hours after a rain storm started. I also saw that the mini-flooding occurred during a rain storm blowing hard out of the southeast over a long, exposed fetch.

I did the usual starting with the big picture by learning how the building was constructed including all sources of water on the roof and how these were drained.

I then removed the gyproc wall in the electric room to expose the top of the concrete basement wall and a circular plug of concrete near the top. I saw that the power supply cable was enclosed in the plug of concrete. I also saw on a wet day water seeping from the bottom of the plug down the concrete basement wall to the floor of the electric room. As the rain storm continued the wetness at the bottom of plug crept up the plug and the flow of water to the floor increased.

Power supply design and construction

I checked on the outside of the building and saw that the power supply cable to the building was enclosed in a 4″ diameter PVC pipe down the outside of the building then horizontally into the electric room. The electric cable from the street entered the top of the PVC pipe beneath a canopy after curving down then back up to form a drip-loop. The horizontal pipe was enclosed in a plug of concrete where it passed through the basement wall near the top. This was the same construction seen behind the gyproc wall inside the building.

This was a typical power supply construction for a building. You see it often, even on houses. Cable sizes, PVC pipe size and length of drip-loops vary but the basic design is the same.

I spoke with the electrical engineers who designed this installation and learned it was constructed in 2004. There was nothing unusual about the design.

I also visited and spoke with the company that sells this type of PVC pipe for electric services. There was nothing unusual about the pipe; longer lengths for the side of a building and shorter pieces for the horizontal section into the electrical room. An elbow-shaped piece connects the vertical PVC to the horizontal. The shorter horizontal piece had a cap bolted on at the elbow. It provided access to the inside of the section of the PVC pipe where the cable changed from vertical to horizontal and into the building.

Chasing down the water’s path

I removed the cap at one point and saw the cable in the pipe. I was surprised to see sediment on the invert of the elbow and staining a couple of inches up the sides of the pipe. There were also small holes in the invert of the horizontal section of pipe plugged with the sediment – these holes did not appear in the pipe that I saw at the PVC pipe vendor.

The space between the cable and the inside of the PVC pipe was tightly caulked at one time but movement of the cable as it expanded and contracted with the air temperature opened up space between the cable and the caulking over time. I can imagine heat from the electric cable contributed.

Conclusion

So, I concluded, rain water was getting into the vertical PVC pipe, then down the pipe and along the horizontal section to the inside of the building. This was expected during design of the electric service as evident from the drain holes in the invert and the caulking around the cable. This was the water I saw when we removed the gyproc wall inside the electric room. The water would have drained away to the outside of the building at one time but the holes in the invert were now plugged with sediment.

Conclusion

So, how did the rain water get past the drip-loops? I thought about this and concluded up-gusts of the rain-soaked wind were the culprit. We occasionally see these up-gusts in rain and snow storms. And, like said above, water was appearing on the electric room floor during hard blows out of the southeast, a wet point of the compass Down East.

I had my well substantiated cause – based on observations – and reported to my client as found above. There were a number of observations during my investigation and mini-conclusions along the way but I was confidant and went on my way after submitting my report.

Note: The foregoing forensic investigation was based on observation alone – no laboratory or field testing to be seen anywhere.

***

A surprise, irrefutable, clinching observation

Months later in April I ended up in hospital for a common mini-medical problem. I was on the fourth floor looking out the window at the roof of an adjacent two story building with a number of chimneys and vent pipes. And there were the up-gusts in the wind around each pipe. They were evident because moisture in the warm air was condensing in the cool April air on discharge from the pipes. The same kind of up-gusts I hypothesized about months earlier at the mini-flood building.

References

1. One forensic observation does not a cause make. Posted July 18, 2023

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, July 31, 2023. ejorden@eastlink.ca)   

The word empirical keeps coming back to me after posting a recent blog about the importance of peer review in forensic work. (Refs 1, 2 and 3) This because many forensic engineering investigations of failures and accidents in the built and natural environments are empirical in nature. Meaning, they are based on observation or experience not laboratory and field testing.

The Observational Method – or Empirical Method, if you like – is widely used and accepted in both the theoretical and applied sciences. Check out Dr. Google:

• Civil, geotechnical and environmental engineering. The OM method is particularly valuable in geotech work because the engineering properties of the ground can change with every step.
• Design and construction
• Forensic investigation
• Criminal investigation
• Psychology
• Child development
• Anthropology
• Marketing
• Statistics

What needs to be understood is that, in general, one forensic observation is insufficient in determining cause. Cross checking is essential. Several observations must be made and a number of these – the preponderance – must point to the probable cause of a failure or accident. If this is not done, peer review will flush out the fault.

In general, the Observation Method, regardless the field of practice, like in the above list, involves:

• Preparing a preliminary design or investigation based on what is known at the time. This could be of an engineering structure or the forensic investigation of the failure of one, a research study, treatment of a PTSD patient, etc. – anything where there are unknowns.
• Preparing a monitoring plan to verify, for example, that the forensic investigation or research study is yielding expected data or findings.
• Preparing a contingency plan that is put into operation if the data or findings are not within defined limits. For example, if the preliminary design is of an engineering structure, and different foundation soil conditions are found during excavation, a contingency plan might require deep piled foundations rather than shallow ones. Or, the initial findings of a forensic investigation are incompatible with the initial hypothesis of the cause of a failure or accident, then the hypothesis is modified and additional investigation is done.

Getting back to empirical, I don’t remember the last time that I did a forensic investigation that was based on laboratory testing. Field testing, yes, plus lots of observation and experience. Testing like the re-enacting of accidents, testing the layout of a highway design, or field testing the properties of materials used in construction. There’s one field test I do – 10 times in each of three (3) different directions.

Why is talk about observation and experience, and peer review, important? Because forensic engineering investigations based on the Observation Method – many are – are best served when a peer review is carried out on completion of the investigation. Better a peer review than a rebuttal review if dispute resolution or insurance claims adjustment is not reached on the court house steps.

References

1. How are forest fires and earthquakes similar, and what can experts learn from them about the importance of peer review? Posted June 27, 2023
2. Update: A Bundle of Blogs: On the need for peer review in forensic engineering and expert services. Posted April 28, 2021
3. A Bundle of Blogs: On the need for peer review in forensic engineering and expert services. Posted November 29, 2019 There are seven (7) good reads on peer review in this blog including the two (2) in the Update

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, July 18, 2023. ejorden@eastlink.ca)   

Why are earthquakes and forest fires important to dispute resolution? For that matter, all the problems in the natural environment? (See a list of examples below)

(The natural environment is everywhere beneath our feet, also what we see beyond the built environment – the concrete jungle – and what falls from the sky above)

Forest fires and the like are important because they remind us about the importance of peer review – getting your forensic work checked by another.

Predicting when these natural events will occur relies on empirical science – observations – rather than on theoretical science that is backed up by laboratory and field testing. Determining the cause of failures and accidents in the natural environment also depends on observations.

If peer review is important in theoretical science – and it is as evident in the research papers – then peer review is even more important in empirical science, implicit in forensic investigation.

Our observations are particularly susceptible to direct- and cross-examination in dispute resolution. So, in disputes involving accidents and failures in the natural environment, you’re wise if you get your work peer reviewed before being exposed to examination.

A timely example of sorts would be a forest fire. Predicting if one might occur in an area requires observing and measuring quantities like:

• Wind
• Temperature
• Humidity
• Forest type
• Ground cover

Then putting this data in a computer model, cranking the handle and getting the Fire Weather Index about whether or not conditions are ripe for a forest fire. (Ref. 1)

We still need a lightning-strike or a camp fire to ignite the ready aye ready forest. But, the ripeness of the forest is determined by observations – empirical data – and reflected in the Fire Weather Index.

In addition to forest fires – some of those in Alberta are thought to have been deliberately set – examples could also be taken from the forensic investigation of the following. All of which are dependent to some extent on observations, not just theoretical science. And all would benefit from peer review:

• Sink hole development
• Foundation settlement/subsidence
• Slip, trip and fall accidents
• Motor vehicle accidents
• Landslides
• Soil erosion and sedimentation of lakes
• Coastal erosion, and
• Flooding

***

I realized the above when I took in a lecture on predicting when and where earthquakes occur. The lecturer was Dr. Steve Kramer a geotechnical earthquake engineer from the U. S. of A. on a cross Canada lecture tour. (Ref. 2)

He explained a model – a complicated equation – that he had developed to predict earthquakes. Empirical observations were fed into the model and the prediction made.

His talk was hard to understand and I’m still working on it. But I recognize – at least so far – that his model relied on empirical science, the kind that is checked by observations not just laboratory and field tests. This is the same for disputes arising from failures and accidents in the natural environment as compared to the built environment.

What’s in this blog for a forensic expert? S/he would do well to understand that if there’s a dispute, and the problem is in the natural environment, there’s an argument for getting their investigation peer reviewed. Their problem shares common elements with forest fires and earthquakes – an empirical, observational approach to a solution.

References

1. Personal consultation with David Wagener, Stanley, New Brunswick, Canada, a forest fire fighter for 10 years with Parks Canada, retired, June, 2023
2. Kramer, Steve, PhD, Professor Emeritus, University of Washington, Canadian Geotechnical Society, 2023 Cross Canada lecture tour: Performance-based design for soil liquefaction June, 2023

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, June 27, 2023. ejorden@eastlink.ca)   

What should I do about accident and injury-prone defects I see in the built environment? For the most part, tiny defects like the following:

1. Old stairs down to a sloping sidewalk from the main entrance of an old church. The stairs have been in place for many decades. I’ve been in and out of this church to concerts. We descend the steps and onto the sidewalk at the upslope end where the riser is the proper height and it’s easier to step onto the sloping sidewalk.
2. New stairs down to a steeply sloping driveway from the front entrance to a house. It’s scary what the homeowners will need to manage; I can’t imagine what it will be like in the winter time. I understand that the owner plans to rent space to students. A mini-commercial property? (It was seeing these stairs that prompted me to post this blog)
3. A stair riser that changes in height from one end to the other in order to rest on the sloping ground. These stairs are to a landing at the main entrance of a recreation centre. I was told there was an accident there and a person injured. Surprise. Surprise.
4. A sloping washroom door threshold in a hospital. The slope is very slight but it’s there, 1.0 inch in 5.5 inches, 18.1%. I knew it was there but days after noticing and measuring it I still stumbled a little going into the washroom! (Ref. 1)
5. A floor that slopes down from the door of an elevator on a palliative care floor in a senior’s retirement residence. It’s slight but it’s there and noticeable, at least to me.
6. A floor in the patio of a hotel that steps down about 2.0 inches from one area to another. It’s barely noticeable but it’s there, stepping up or stepping down.
7. Big, tank-track-size potholes in roads; not exactly tiny. But also tiny potholes. You can see cars wobbling after they go through some of these potholes. A friend sued the city about one that damaged his car. I called 911 about another left at a construction site.
8. Road-side and parking lot curbs that change height a tiny bit. See my blog posted September 2. 2021, an eye opener if you don’t mind me saying. (Ref. 2)
9. A floor in a private athletic building that changes level in going from one area to another. But, attention is drawn to the change in level with a brightly colored yellow painted threshold. Good. I was impressed by what was done in this building.
10. A surface that changes in height from the sidewalk to the roadway. Attention is also drawn to the change by brightly colored yellow paint. Good I see this a lot in towns and cities as I’m sure you do.
11. Tennis and pickle ball courts in quite level terrain but with a slight cross slope to the courts.
12. A large athletic field constructed on natural soils; Good – except for one corner on deep fill soil; Bad. Foundation and geotechnical engineers learn early to separate the foundations on different soils. Fill soil settles more than natural soil. The pyramid builders in ancient Egypt learned to do this.

I learned long ago if I was walking on a construction site and saw something dangerous like a deep trench in unstable soil and workers in the trench, you draw attention to the risk.

But, what do you do about the “tiny”, accident and injury-prone defects in the built environment noted in the above list? Should I go around knocking on everybody’s door? Does anybody know?

References

1. More tiny causes of slip, trip and fall accidents. Posted March 15, 2023
2. My personal slip, trip and fall accident, #1. Posted September 2, 2021
3. My personal slip, trip and fall accident, #2. Posted February 26, 2023

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, June 16, 2023. ejorden@eastlink.ca)   

I was troubled by the article in The Chronicle Herald week ago Friday that noted the engineer’s role in innovation and iconic advances in society but was silent on our role in the built environment, that is everywhere. Then went on to express concern that “…the breadth of expertise and the engineering profession’s impact on the world around is largely unseen.” (Ref. 1)

This in a report in the newspaper on a talk by Gerald McDonald, Chief Executive Officer, Engineers Canada.

I don’t think our role is unseen. It’s staring us in the face in the built environment that would not exist if not for engineers designing, constructing and maintaining it. We just got to see what we’re looking at.

I suggest addressing this concern by taking a cue from Jane Goodall’s focus on kids who will arrest climate change when they grow up – Jane talked about this in Halifax last Saturday. (Ref. 2) Jane is not focusing on politicians and prominent people to fix climate change. In her spirit, we must focus on the humble engineer toiling away in the built environment, getting his hands dirty and mud on his boots providing habitat for the man in the street. Ye shall know him by his iron ring.

(For those of you who forgot, Jane Goodall is an English primatologist who studied the social and family interactions of wild chimpanzees, starting when she was 26, and changed the way we think about humans. She travels the world today, at 89 years of age, writing, speaking and spreading hope through action to make the world a better place)

There’s no question that advances like the following are important – shepherded by engineers:

• Helicopter safety
• Harnessing renewable energy
• Launch of the first Atlantic Canadian-built satellite into space
• The Canadarm
• The pace maker
• Halifax Central Library
• Confederation Bridge

Shepard’s focus on the engineer’s role in the big stuff is good – engineers are even in space as I write – but, so too is the engineer’s role in the design, construction and maintenance of the built environment that is comprised of the following, and more:

• Buildings – residential and commercial. There are more hi-rise and low rise buildings in the world than any other structure. Think about that.
• Water treatment and supply systems to and from the buildings
• Sewage collection and treatment systems
• Storm collection and drainage systems
• Foundation support systems like spread footings and piles
• Foundation subsoils
• Parking lots and airport runways
• Towers, like hydroelectric towers
• Chimneys, particularly the tall ones
• Highways and roads between the buildings and beyond
• Highway embankments, cuts and fill slopes
• Hydraulic structures like canals (eg. Shubie canal)
• Electric power supply systems
• Bridges – small like over highways, large like suspension bridges over water, very large like the Confederation Bridge
• Hydroelectric dams like Mactaquac in New Brunswich
• Marine structures like docks and wharves, breakwaters, and coastal protection
• Ships – designed, constructed and maintained by engineers
• Planes – same role as for ships
• Etc.

These structures come into being and are maintained by engineers working in the civil, foundation, geotechnical, environmental, mechanical and electrical fields. What we have in common in our different disciplines is a creative desire for problem solving.

I felt good as that loooong list above came into being. We engineers are everywhere producing and maintaining the built environment and helping alter the natural environment, carefully. Gerald McDonald knows this and could easily inspire a complementary piece in the The Chronicle Herald.

References

1. McDonald, Gerald, Tap Engineers For New Ideas, The Chronicle Herald, Friday, May 19, 2023
2. Jane Goodall’s talk in Halifax, May 27, 2023

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, May 31, 2023. ejorden@eastlink.ca)