I posted five blogs in the past three years on writing expert reports. (Refs 1 to 5)  And referenced two excellent texts. (Refs 6 and 7)  These are guidelines for experts, as well as for those of you practicing law and insurance claims management and consulting – to help you recognize well written, technical reports.  I emphasized the need for well written reports because of the intent of civil procedure rules governing experts – like Rule 55 in Nova Scotia, to expedite the settling of disputes.

However, missing from my blogs were guidelines on composing a report – selecting the words, assembling them into sentences, the sentences into paragraphs, and the paragraphs into report sections.

William K. Zinsser’s book “On Writing Well” solves that problem. (332 pages for $19.99 at Chapters) (Ref. 8)  This is one of the most informative, engaging and humorous books on writing non-fiction – e.g., expert’s reports, that I’ve seen.  And his book is well written, as you might expect, pulling you right along page after page.

Mr. Zinsser’s book has been in print for 39 years – longer than most of us have been practicing.  It was first published in 1976.  The 7th edition came out in 2006.  I learned about the book when I read his obituary in the Globe and Mail in May. (Ref. 9)  By then it was recognized as a classic, like Strunk and White’s “The Elements of Style” which it complemented. (Ref. 10)

Strunk and White’s little book noted the dos and don’ts of writing.  Zinsser’s big book applied those principles in 25 chapters to the different methods and forms of writing non-friction.  Chapter 15 on writing for Science and Technology is most relevant to expert report writing.  It is based on a simple principle: Writing is thinking on paper.  Another chapter on Clutter is also good – getting rid of jargon and useless words.

Zinsser says that in making scientific and technical material accessible to the lay person – the purpose of an expert’s report – “Nowhere else must you work so hard to write sentences that form a linear sequence (sequential writing).  This is no place for fanciful leaps (of faith) or implied truths.  Fact and deduction are the ruling family.”  Put another way, “Go from what you know to what you don’t know”. (Ref. 11)

He tells us to imagine technical writing as an upside-down pyramid.  Start at the bottom with the one narrow fact the reader must know before he can learn any more.  For example, the technical issue in a case or claim.  The second sentence broadens what was stated first, making the pyramid wider, and the third sentence broadens the second, so that you can gradually move beyond the facts into analysis, interpretation, conclusion and opinion – the reason the man slipped and fell, the cause of the bridge failure, the location of the plume of contamination, why inadequate foundations, the source of the flood water.

Does “sequential writing” resonate with expert report writing?  This phrase appears often in Zinsser’s book in chapters on all forms of non-friction writing but nowhere is it more relevant than writing for Science and Technology – expert report writing.

Civil procedure Rule 55 requires experts to state the basis of their opinions.  Writing “sequentially” – thinking on paper, ensures we do this.

I recommend that you buy this book and give it to the next expert you retain.  Those of you practicing law, and insurance claims management and consulting, will also benefit from reading it.

References

1. Civil procedure Rule 55 will improve expert’s reports and forensic engineering investigation. Posted August 21, 2012
2. Writing forensic engineering reports. Posted November 6, 2012
3. New civil procedure rule will result in the writing of better expert reports. Posted May 20, 2013
4. Thinking on “paper”, and well written, easily defended expert’s reports. Posted March 6, 2014
5. Guidelines for writing an expert witness report. Posted May 17, 2014
6. Babitsky, Esq., Steven and Mangraviti, Jr., Esq., James J., Writing and Defending Your Expert Report; the Step-by-Step Guide with Models, SEAK Inc, Falmouth, Massachusetts, 2002 
7. Mangraviti, James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc., Falmouth, MA 2014
8. Zinsser, William K., On Writing Well, the classic guide to writing nonfiction, 7th ed., Harper Collins, New York 2006
9. The Globe and Mail, page S6, May 15, 2015
10. Strunk, Jr, William and White, E. B., The Elements of Style, 2nd ed., The Macmillan Company 1959
11. Maharaj, Jeremiah R., Personal communication years ago.  Jerry was a former teacher in Port of Spain, Trinidad, and my classmate at the College of Geographic Sciences, Lawrencetown, Nova Scotia.  Jerry’s comment stuck in my mind over the years as I’m sure it did for others.  It is relevant to Zinsser’s advice on writing for science and technology.

I thought to re-issue my answer to this question (see below) after reading an updated edition – 2012, of ‘Guidelines for Forensic Engineering Practice’.  The comprehensive Guidelines were originally published by the American Society of Civil Engineers (ASCE) in 2003.  ASCE saw changes in the practice of forensic engineering in the years after 2003.  These included changes in how forensic engineering should be defined. 

As stated in the Preface to the Guidelines, regarding society in general:

“Design codes and standards, construction safety regulations, tools of investigation and analysis, and dispute resolution rules and procedures have evolved since 2003, when the first edition of the Guidelines was published.

“More importantly, forensic engineering has matured, becoming a more accepted, organized, and active field of practice.”

I also thought to re-issue my answer to this question because a friend visited my blog recently and promptly left because “I don’t understand anything about that (forensic engineering)”, she said.  No surprise, really, because her profession has no need for such services.  Still, my friend’s comment made me think that I better continue to make clear what forensic engineering is about.  Lest counsel and insurance claims managers promptly leave too.  People who really need to know about forensic civil engineering.

Civil engineering, including geotechnical and structural engineering, is basically concerned with the planning, design and construction of the built environment.  For example, structures – and the components of these, also their infra-structure – like buildings, roads, bridges, dams, land drainage and earth works, water and sewage treatment, distribution and collection systems, wharves and harbour works, etc.

Sometimes these structures or their components fail.  That is, they don’t work as planned and designed, they break, or they occasionally fall down completely – catastrophically.

Civil engineers as problem solvers determine the cause of these failures, and also the cause of personal injury accidents – by carrying out a forensic civil engineering investigation.

In Eastern Canada today, following on the Guidelines:

Forensic engineering can be defined as applying engineering principles, education, and knowledge to problems – failures and accidents, where liability is most often resolved in a tribunal but may be decided in a legal forum.

We investigate and determine the cause of problems and explain technical issues to lay people.  Increasingly we advise on how to fix the problem.

The Guidelines are a good reference for counsel and insurance personnel and readily available on inter-library loan.  Actually a good read in some situations, like legal practice handbooks are a good read for experts.  Chapter headings in the 2012 edition indicate the thorough coverage of the practice of forensic engineering:

• Competencies and qualifications of forensic engineers
• The standard of care
• Investigations and reports
• Ethics
• The legal forum
• The business of forensic engineering

These topics were also covered in the 2003 edition but now upgraded.

The most significant addition to the 2012 edition of the Guidelines, a separate 23 page chapter, is “The standard of care” – best described “…as the boundary between negligent error and non-negligent error”.  I`m glad it`s there because it`s a difficult area of investigation for an expert.  Counsel would do well to read this chapter.

References

1. Lewis, Gary L., Ed., American Society of Civil Engineers (ASCE), Guidelines for Forensic Engineering Practice, 2003
2. Kardon, Joshua B., American Society of Civil Engeers (ASCE), Guidelines for Forensic Engineering Practice, 2012
3. What is forensic engineering? Posted November 20, 2012

***

What is forensic engineering? – as posted on November 20, 2012?

You’ve probably seen the word “forensic” in the newspapers often enough.  The term is applied to many scientific disciplines today and to specialties outside the engineering and scientific professions.  The following item explains what is involved in “forensic” engineering.

Origin of the word “forensic”

The word “forensic” comes from the Latin forum and as an adjective means pertaining to or used in legal proceedings.  The forensic engineer helps with the technical issues in disputes – and their resolution – arising from engineering failures.  He does this by presenting and explaining complex technical principles, technical evidence, technical facts supported by the evidence, and opinions to help the parties resolve the dispute.  More than 90% of disputes are resolved by the parties in this manner without going to trial.

Forensic engineers use engineering methods to investigate failures

In my forensic engineering practice in eastern Canada, and reviewing some literature, I’ve come to think of forensic work as the use of the engineering approach, and various engineering methods and knowledge, to investigate the cause of failures in the built and natural environments – including environmentally related failures.  A failure may mean total collapse, partial collapse or inadequate performance and serviceability problems.

The same engineering approach – the methods may change, can be used to investigate the cause of slip, trip and fall accidents, and motor vehicle and aviation accidents causing property damage, personal injury, or death.

Methods the same in forensic engineering and design engineering

The engineering approach and the methods used during forensic investigation are essentially the same as those used during design of a structure.  And in applying those methods to forensic work there would be no greater or lesser attention paid to thoroughness and accuracy.

The difference between forensic engineering and design engineering

If there is a difference, forensic work looks at what was done in the past to provide for the loads on an existing structure and whether or not it was adequate.  Design work looks at what must be done in the future to adequately provide for the loads on a proposed structure.  “Load” in engineering can be anything to do with a structure that should have been provided for or must be provided for.

Forensic engineering

“Forensic engineering” is the term now accepted to connote the full spectum of services which an engineering expert can provide.  A number of engineering disciplines might be used in the investigation of a failure.  For example, civil engineering, foundation, geotechnical, environmental, structural, chemical, mechanical, and electrical, among others.  The forensic engineer directing the investigation – usually from the discipline thought at the beginning to be most relevant to the problem, would retain other specialists as required by different facets of the problem.  I’ve done that often enough during my forensic engineering investigations.

Most forensic engineers have higher, specialist degrees in engineering and decades of experience.  They are usually retained by counsel for the plaintiff or defendant in a dispute, by claim’s managers with insurance firms, and occasionally by the court.

Anything can fail, break and fall down

Anything in the built environment can fail – buildings and their different components, including environmental components like fuel oil tanks, and civil engineering structures like bridges, roads, dams, towers, wharves, and earthworks.

Also, anything in the natural environment can fail – natural slopes, river banks, coast lines, flooding protection, subsidence protection, and erosion and sediment control.

The infra structure servicing these building and civil engineering structures can fail – infra structure like water distribution and sewage collection systems, pipe lines, power distribution systems, and tunnels.

Typical forensic engineering investigations

Forensic engineering experts might investigate why:

• a building settled,
• a building caught on fire and burned,
• a bridge collapsed,
• a dam washed out,
• oil spilled contaminating the ground,
• ice fell injuring a pedestrian,
• a worker fell off a ladder and died,
• a fatal traffic accident occurred after hitting a pile of salt on the road,
• foundation underpinning does not appear adequate,
• land or a basement flooded,
• a land slide occurred,
• etc.

The majority of failures that are investigated by forensic engineers are quite ordinary, at least in the engineering world, and are not ongoing, news-grabbing events.

Assisting the court

If the dispute can’t be resolved and it goes to trial the forensic engineer as an expert presents and explains the evidence, facts, and opinions to help the judge or jury understand the technical issues so that the verdict will be proper within the law.

In a dispute resulting in civil litigation, it is the role of the forensic engineering expert to objectively provide evidence, regardless of whether it favours the plaintiff or the defendant.

References

1. Association of Soil and Foundation Engineers (ASFE), Expert: A guide to forensic engineering and service as an expert witness, 1985
2. Cooper, Chris, Forensic Science, DK Publishing, New York, 2008
3. Suprenant, Ph.D., P.E., Bruce A., Ed., Forensic Engineering, Vol. 1, Number 1, Pergamon Press, 1987
4. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, 1989
5. Lewis, Gary L., Ed., American Society of Civil Engineers (ASCE), Guidelines for Forensic Engineering Practice, 2003

The elephant in the room is the cost of litigation when counsel is talking with an expert.  Particularly the cost of investigating smaller cases.  Counsel doesn’t always talk with an expert about cost when the merit of a case is being assessed.  This sometimes causes problems later and may also compromise an expert’s independence and objectivity.

Small to medium size cases are the norm, not large, well funded cases brought by affluent litigants. (Refs 1 to 4)

The ‘Principles Governing Communications with Testifying Experts’, as developed by The Advocates’ Society, Ontario is a good document and was long overdue. (Ref. 3)  But there is a need for an additional principle governing communications about the cost of litigation.

There are good reasons for developing such a principle like there were good reasons for developing the existing Principles.  I understand the Principles were developed because counsel’s involvement in the expert’s report sometimes compromised the expert’s independence and objectivity.  I believe talking about the cost of litigation – after the action has begun – could also compromise the expert’s independence and objectivity, at least the perception.  My belief is based on civil, geotechnical and forensic engineering practice in Eastern Canada since the late 1980s. (Ref. 5)

Senior experts could help develop such a principle.  They could also offer comment on updating the Principles.  Good communication is a two-way process.

Often enough experts are retained months or years after counsel takes a case. (Ref. 1) And after counsel has estimated the cost of the expert`s work.  Then the expert`s invoices start coming in as he investigates the problem and these sometimes exceed counsel`s estimate.  Counsel stops the forensic investigation.  Sometimes so completely that not even an oral report of the expert`s findings go to counsel.  Findings that might point the way to justice being done – denying the court and the litigant information is touched on in the Principles. (Refs 3 and 4)

During this un-raveling process it’s not difficult to imagine a real or perceived compromising of the expert’s independence and objectivity.  These qualities are related to the reliability of an expert’s investigation and opinion.  Reliability is related to the thoroughness of an expert’s work, the gathering of sufficient data.  Thorough work can be expensive.  And when this thorough work is stopped before completion, sometimes this compromises the expert`s independence and objectivity.

A summary of facts supporting the need for a principle governing communications about the cost of litigation:

• The Principles, and the associated Position Paper, already note that litigation is expensive and that there are affluent and less affluent litigants.
• The smallness of some cases – the norm, really, which feel the presence of the elephant, is also mentioned in the Principles.
• Experts are not always consulted when the merits of a case are being assessed.
• Counsel is usually not qualified to estimate an expert’s costs.
• Nor to recognize when it’s difficult or impossible to estimate the cost of an expert’s investigation, analysis and reporting. (Ref. 6)
• The present situation could compromise an expert’s independence and objectivity.

These facts – and I’m sure there are others, support the need for a principle governing counsel’s communications with experts about the cost of litigation.

References

1. Forensic engineering practice in Eastern Canada (and supporting references), posted May 7, 2015 http://www.ericjorden.com/blog/2015/05/07/forensic-engineering-practice-in-eastern-canada/
2. What do forensic engineers investigate in Atlantic Canada (and supporting references), posted October 9, 2014 http://www.ericjorden.com/blog/2014/10/09/what-do-forensic-engineers-investigate-in-atlantic-canada/
3. Principles governing communicating with testifying experts; their development and acceptance, posted June 25, 2015 http://www.ericjorden.com/blog/2015/06/25/principles-governing-communicating-with-testifying-experts-their-development-and-acceptance/
4. The Advocates Society, Position paper and principles governing communications with testifying experts, published June, 2014 Ontario  http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%   20%20Position%20Paper%20on%20Communications%20with%20Testifying%   20Experts.pdf
5. www.ericjorden.com and www.ericjorden.com/blog
6. A bundle of blogs: A civil litigation resource list on how to use forensic engineering expertsh http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/

You might be interested in the list below of the stages in the “life” of a structure in the built environment.  Structures include earthworks and waterworks – a reshaping of the natural environment, as well as buildings and bridges.

I came across the basic list – the first nine stages, while reading the latest, 2012 edition of Guidelines for Forensic Engineering Practice. (Ref. 1)  I added the 10th stage – demolishing, because that’s what often happens to structures after they have been decommissioned.  The list is a useful breakdown of the aging of a structure.

The Guidelines were published by the American Society of Civil Engineers (ASCE).  Civil engineering includes structural engineering and geotechnical engineering.

I see the list providing context and facilitating communication between counsel, insurance claims managers and consultants, and an engineering expert.  Failures and personal injury accidents can occur pretty well any time during the life of a structure.

Principles governing communication between counsel and expert have been developed recently by The Ontario Advocates’ Society. (Ref. 2)  The following list of stages in the life of a structure will further help counsel and an engineering expert talk to one another when a failure or personal injury accident occurs:

1. Conceptualizing
2. Planning
3. Designing
4. Constructing
5. Operating
6. Maintaining
7. Renovating
8. Reconfiguring
9. Decommissioning
10. Demolishing

ASCE say that, “Failure can be defined as an unacceptable difference between an actual condition or performance and the intended or reasonably anticipated condition or performance.”  This can occur during any stage in the life of a structure.

Furthermore, “Failure need not involve a complete or even partial collapse.  It may involve a less catastrophic deficiency or performance problem, such as unacceptable deformation, cracking, water- or weather-resistance, or other such phenomena.”

It’s not difficult to imagine that failure can occur at any stage.  Nor that personal injury accidents can occur at any stage.

Communication is easier for both counsel and client and counsel and engineering expert if we all have an idea of a structure’s “life” and the stages it goes through as it ages  The list above can help us.

References

1. Kardon, Joshua B., ed., Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE) 2012
2. The Ontario Advocates’ Society, Principles Governing Communications With Testifying Experts June 2014 Toronto

The Principles developed by The Advocates’ Society, Ontario and published June, 2014 have been well received by the judicial system.  And in a short time too.  I reported on these June 11. (Refs 1, 2)  I was pleased with them as a civil engineer retained as an expert often enough.

Following is more information on the development and acceptance of the Principles.

I enquired but wasn’t able to learn how they have been received in Eastern Canada.  I can`t help but think that once they are known to the barristers’ societies in this area they will be quickly accepted here as well.

I later e-mailed Dave Mollica, B.B.A., LL.B. about the Principles.  He is Director of Policy and Practice for the Society.  Dave said, “…the Principles were released only a year ago, but we have received very positive feedback“.  Following is a summary of his remarks: (Ref. 3)

“The Principles were developed following a case from the Ontario Superior Court of Justice (Moore v. Getahun) when the judge suggested that it was inappropriate for counsel to review drafts of expert reports with an expert prior to the filing of the report.

“A Task Force of around 20 members of The Advocates’ Society, all litigators in various areas of practice, was struck to discuss and examine the issue.  Research into the development of expert evidence and the current state of affairs in this regard was conducted.  Task Force members shared their own practices on how they interact with experts during the litigation process.  This led to the drafting of the Principles and the accompanying Position Paper on Communications with Testifying Experts.  Earlier drafts of the Principles were shared with various parties – mainly lawyers who work closely with experts as opposed to experts directly, but I recall we did also consult with the Canadian Institute of Chartered Business Valuators.” (Dave Mollica)

Three significant developments in a year:

• The Court of Appeal for Ontario endorsed the Principles and appended them to its reasons in the appeal of the Moore v. Getahun case.
• The Advocates’ Society have incorporated the Principles into the curriculum of it’s relevant educational programming.
• The Society has received feedback that law firms in Ontario have incorporated the substance of the Principles into their expert retainer letters (sometimes appending the Principles themselves to the letters).

As a civil engineer, I’m enthused about these Principles.  They define my role when I`m serving the justice system and the parties to a dispute.

References

1. Principles governing communicating with testifying experts, posted June 11, 2015 http://www.ericjorden.com/blog/2015/06/11/principles-governing-communicating-with-testifying-experts-the-advocates-society-ontario-june-2014/
2. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014 www.advocates.ca http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%20%20Principles%20Governing%20Communications%20with%20Testifying%20Experts.pdf
3. Personal communication (E-mail), Mollica, David, B.B.A., LL.B., Director of Policy and Practice, The Advocates’ Society, 2700 – 250 Yonge Street, P.O. Box 55, Toronto, ON, Canada  M5B 2L7 www.advocates.ca Tel: 416-597-0243 x.125 Fax: 416-597-1588 E-mail: david@advocates.ca

I was pleased when I came across these guidelines while researching a similar topic on-line in the U.S.  I was looking for more guidance for myself and my clients.  I will briefly tell you about them.

The Principles were developed by lawyers – The Advocates’ Society, Ontario – to guide lawyers and the justice system. (Ref. 1)  The Principles will also guide experts.  To me, an engineer, they appear comprehensive and well founded.  They should be read by all of us: Lawyers, insurance claims managers and consultants, experts, and our clients, and all of us be guided by them.

The Advocates` Society has identified nine (9) principles.  These are stated and then commented on in the document.

As indicated in the document’s overview, it was developed and reviewed by several dozen senior lawyers representing different areas of legal practice and different organizations.  Counting the credits, I can easily imagine at least three (3) dozen.  That’s impressive.  Senior representatives of expert organizations were not consulted.  At least this is not stated.

Experts are well served now by an extensive literature, conferences and workshops.  Included are the publications and meetings by the American Society of Civil Engineers (ASCE) and SEAK, Inc. (Refs 2 and 3)

If the Principles were revised to reflect those developed by organizations like the above, I believe a set of principles could be produced that would serve all of us even better, particularly the justice system.

I hope to comment on the Principles in more detail later.  But, because this document is so relevant to litigation, I’m telling you about it now.  I’m sure many of you know about the Principles but, because they were published recently, I’m also sure many of you don’t.

References

1. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014 www.advocates.ca  http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%20-%20Principles%20Governing%20Communications%20with%20Testifying%20Experts.pdf
2. American Society of Civil Engineers, Reston, Virginia, U.S. www.asce.org
3. SEAK, Inc., Falmouth, MA www.seakexperts.com

Weather is an element, a factor, or a cause of some failures or accidents in Eastern Canada.  We get a lot of weather down here so it’s not surprising.

It’s almost always one of several elements in the problems even if it’s quickly dismissed as not relevant.  It’s sometimes a factor in the mechanism leading to a failure.  And it’s occasionally the cause of a failure.

Some examples will raise your awareness

Wind a factor in bridge failure

I thought to raise your awareness of this after suggesting that wind was a factor in the failure of a bridge in Edmonton in March.  Crane cables repeatedly tugged at the top of one of the bridge girders to which they were attached.  The beam eventually failed by buckling sideways.  The cables hung from crane booms exposed to the wind. (Ref. 1)

Weather increases house maintenance

Those of you living in houses that are a few years old have probably noticed the need to paint the south side of timber clad homes more often and to re-point brick clad homes.  I know I have to do that with my home.  That’s failure – increased maintenance, due to weather.  Some of the problem is due to the heat of the sun; some is due to freeze/thaw cycles.  Weather is the cause.

Rain triggers landslide..!!

I investigated the cause of a landslide that destroyed a home in Redhead on the Bay of Fundy, New Brunswick several years ago.  Rain triggered the landslide by increasing the water pressure in the soil that then slid down.  The land was on the verge of sliding, rain was the trigger.  This “trigger mechanism” is well known in civil and geotechnical engineering.  Weather was a factor.

Snow causes roof collapse

I drove past a house this morning with a roof that had collapsed under the weight of snow that accumulated this past winter.  Weather was the cause.

Weather did not cause bridge collapse

I investigated the cause of a soil-steel bridge failure – a very large culvert, a few years ago.  People thought initially that torrential rain – four inches in a few hours, caused a flood that washed the bridge out.  However, photographs taken of the failure and a topographic survey showed that the flood was only half the capacity of the bridge culvert.  Weather was not the cause, nor a factor, only an element.  (Steel corrosion was the cause)

Dirty weather a factor in traffic accidents

Dirty weather is often a factor in traffic accidents.  Sometimes it’s a cause.

Checking rainfall

I check rainfall as a matter of course when investigating drainage and flooding problems. Sometimes it figures in the problem, sometimes not.

I like heavy rain – Sorry.  It helps solve problems

I like heavy rain when investigating some problems – Sorry.  For some problems, it quickly and reliably defines runoff patterns much better than expensive, detailed topographic surveys.  For other problems, it enables me to correlate a rough measure of discharge on a property with reported rainfall in an area. (Ref. 2)

References

1. Bridge beams that fail are sometimes like balloons http://www.ericjorden.com/blog/2015/05/20/bridge-beams-that-fail-are-sometimes-like-balloons-filled-with-water-squeeze-them-and-they-pop-out-somewhere-else/
2. Why forensic engineers like heavy rain http://www.ericjorden.com/blog/2014/04/09/image-credits-and-why-forensic-engineers-like-wet-weather-the-heavier-the-rain-the-better/