A reminder that failures and accidents are predictable even if the culprit is climate change

I was reminded by the report in The Washington Post on Monday of the catastrophic bridge collapse in Hassanabad, Pakistan that failures large and small are predictable. (Ref. 1) And most are preventable. For sure, probably not this one but knowing it could happen goes a long way to preventing loss of life.

The cause this time was a lake flooding at the toe of a glacier and spilling out to charge the river beneath the bridge. The flooding, as easily explained by glaciologists, was due to record heat and a melting glacier – climate change. The bridge had no problems with flood waters for decades; it was the magnitude this time.

I can imagine the glaciologists raised the alarm but who listens to such esoteric scientists? For that matter, to engineers and applied scientists, in general, about problems in the built environment?

I thought about the Saint John river flood a few years ago when I read about the bridge collapse in the Post. This flood, due to snow melt raising the level of the Mactaquac Dam reservoir, was predictable and not so unlike what happened in Pakistan. The flooding was often prevented in the past by the periodic release of water from the Dam to keep the reservoir level down. But there is a trade-off between keeping the water level down to prevent flooding and up to generate electricity.

So so so many problems in the built and natural environments are predictable based on simple engineering and physic’s principles – simple physics like in high school. Problems like bridge failures, ground subsidence in Karst terrain, construction crane collapses, foundation failures, floods, slip and falls, etc. You name it, what can wrong can often be predicted.

But sadly not prevented in the short term as climate change wreaks it’s wrath waiting for the world to catch on.

References

  1. Patel, Kasha, The Washington Post, Monday, May 9, 2022

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, May 11, 2022. ejorden@eastlink.ca)   

How is a forensic investigation different from a project?

The main difference? You know where you’re going when you work on a project whereas the end result of a forensic investigation is a mystery. Particularly if you follow-the-evidence.

A project is all the work you do one time. Whether it’s designing a bridge, building a garden, or creating a web page, every project produces an outcome and every project has a beginning and an end. (Ref. 1)

It’s a one-time job that has a definite starting point, end point, a clearly defined scope of work, a budget, and is multi-task in nature. (Ref. 2)

The Project Management Institute puts it still another way, “A temporary endeavor undertaken to create a unique product or service”. (Ref. 3)

For example, engineers apply science and mathematics in the use of materials to design and construct a project useful to people. Materials like steel, concrete, wood, plastic, water, soil and rock for a bridge.

When something goes wrong during the project or afterwards engineers carry out a forensic investigation to determine the cause. This would include personal injury accidents. (Ref. 4)

Projects and forensic investigations both involve carrying out a number of tasks. However, where the tasks forming a project are well known at the start, those for a for a forensic investigation are only approximately known.

These tasks are identified accurately in a “Work Breakdown Structure (WBS)” for a project. A WBS is a simple list of tasks. A similar list can be prepared for a forensic investigation but is approximate particularly for a difficult investigation.

Similar issues exist when estimating costs. They are (very) approximately known at the start of a project, (a little) better known in the middle and (accurately) accurately known at the end. Factor in the parenthetic expressions for a forensic investigation.

I thought to comment on these similarities and differences when I realized a WBS would be useful in forensic investigation. Then it struck me I must be careful comparing a project to a forensic investigation lest the latter take on a commercial ring. There’s nothing commercial about determining the cause of a failure or accident to facilitate dispute resolution even when it involves a commercial building.

References

  1. Verzuh, Eric, The Fast Forward MBA in Project Management, Wiley and Sons 1999
  2. Lewis, James P., Project Planning, Scheduling & Control, 3rd edition McGraw Hill 2001
  3. Meredith, Jack R. and Mantel, Jr., Samuel J., Project Management, a Managerial Approach 4th edition Wiley and Sons 2000
  4. What is forensic engineering? Posted September 28, 2021 and November 20, 2012

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, April 30, 2022. ejorden@eastlink.ca)   

The Biggest Mistakes expert witnesses make, and how to avoid them

I see that Discovery is the theme for the Atlantic Provinces Trial Lawyers Association (APTLA) conference this June 10th and 11th in St. Andrews, NB. Specifically, The Art and Science of Discovery Examinations.

I don’t see much in the conference on mistakes expert witnesses make and how to avoid them. Yet there are a lot of them and I’m certain this will get attention at the conference. To be fair, nor have I seen a detailed outline of what the speakers plan to cover.

One source I studied identifies 220 mistakes based on research of the literature. A further 158 were suggested by trial lawyers, jury consultants and well known experts who were canvassed – 378 mistakes in total! On reading this material, I know I could add a few based on what I’ve seen over the years. I’m certain my colleagues in forensic work could as well. How about an expert taking a file on contingency?

A review of guidelines on expert report writing is certain to highlight more mistakes. There’s a lot of dos and don’ts. I didn’t want to get into overkill with more detailed research; a total of 378 mistakes is enough.

I see in the literature that the 220 mistakes can be partly categorized as follows with a few example mistakes taken from the many. Some mistakes are common, others are quite surprising to me and I’m sure to others:

  1. The Expert CV 2 example mistakes out of a total of 23 a) Mistake: Inaccuracies on a CV like misleading information b) Mistake: Listing past cases with results on your CV
  2. Web Pages 2 example mistakes out of 19 a) Mistake: Having inconsistent Web CV and paper CV b) Mistake: Listing innumerable areas of expertise
  3. Researching, Investigating, Forming and Expressing Opinions 3 mistakes out of 24 a) Mistake: Accepting rush cases that do not permit you to follow your standard protocol b) Mistake: Failing to document your work c) Mistake: Not corroborating facts provided by counsel
  4. Report Writing 4 mistakes of 32 a) Mistake: Letting counsel help write your report by sharing a draft with him/her b) Mistake: Basing the report on insufficient data c) Mistake: Using vague terms in the report d) Mistake: Allowing your word processing software to track the changes that you make to your report
  5. Depositions 3 mistakes of 31 a) Mistake: Taking notes at the deposition b) Mistake: Answering questions regarding a document you do not have in front of you c) Mistake: Being afraid to say “I don’t know”
  6. Direct Testimony 2 example mistakes out of 18 a) Mistake: Using terms that the judge and jurors do not understand b) Mistake: Getting outside your true area of expertise
  7. Cross Examination 2 example mistakes out of a total of 23 a) Mistake: Not advocating for your opinion b) Mistake: Giving new opinions on cross examination without careful reflection

There are more categories in the literature about the 220 mistakes but this is enough to illustrate the problem.

The 158 mistakes were presented differently, but with a little effort I’m sure they could be categorized in a similar way.

I believe APTLA are doing Yeoman service for their members in “…taking a deep dive into Discoveries” during the conference. I believe that the first promise during the dive to “…show you how to prepare your client” for Discovery would benefit from knowing about the 378 mistakes experts make.

I’ve dedicated my blog over the past 10 years to enlightening civil litigation lawyers, insurance claims managers and property owner to the nature and methods of forensic work. Drawing attention to the mistakes experts make is in tune with that resolve.

Postscript

I thought on completing this blog that it would be helpful to study the 378 mistakes and identify those I’ve seen in Canada. Perhaps get my colleagues Down East to chip in what they’ve seen. The sources I checked are to U.S. publications and while helpful do not necessarily reflect completely on the situation in Canada.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, April 25, 2022. ejorden@eastlink.ca)   

Your expert should read the books in the following list

Experts have got to know the process they take part in – that’s a given. They’ve got to be on their toes when investigating and reporting to the dispute resolution process on the cause of personal injury and failure in the built environment.

In this regard, I thought to provide the following list of books, legal papers and postings while blogging on animation. Animation is a useful technique in forensic work but one that is difficult to understand and explain. It’s also susceptible to misuse, both accidentally and deliberately. (see Appendix) There’s other difficult areas of forensic work besides animation. Good literature helps with these difficulties.

The list is not exhaustive but a good start. I will add to it over time.

I can’t say enough about the SEAK, Inc. books on writing reports and avoiding mistakes. Also, anything by Ruth M. Corbin is good – she writes well for readership at the interface between law and other fields; nice to see in a lawyer. The item on demonstrative evidence by Troy Lehmon is very good. It was recommended by an expert in traffic accident animation.

Recommended Reading for Experts

  1. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write An Expert Witness Report, 2014 2nd ed., SEAK, Inc., Falmouth, MA A 560 page, 8.5″ x 11″ massive tomb that should be on every person’s shelf who might be called as an expert. The book is based on what the authors have learned reviewing cases and training thousands of experts over more than 30 years. I’ve taken two of their courses and they’re good.
  2. Babitsky, Steven, Mangraviti, Jr., James J., The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, 2008 SEAK, Inc., Falmouth, MA There are a lot of mistakes! Get the book and count them. This one should also be on every one’s shelf.
  3. Stockwood Q.C., Civil Litigation, A Practical Handbook, 5th ed., 2004 Thomson Carswell Toronto I found this an excellent text on the civil litigation process – a must-read for all experts. Note that it went to a 5th edition before the chap died prematurely in his 50s.
  4. 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) An excellent read!
  5. How experts are helping break the expert evidence logjam. Posted April 30, 2018
  6. Capurso (1998), Timonthy J., How Judges Judge: Theories on Judicial Decision Making, University of Baltimore Law Forum Vol. 29: No. 1, Article 2 Some ways are not impressive.
  7. Lehmon, Troy, Demonstrative Evidence, March 25, 2013, Oatley Vigmond, Personal Injury Law Firm, Ontario This paper is very informative, a good read for experts. thttps://oatleyvigmond.com/demonstrative-evidence/
  8. Experts: The only objective party in the judicial process. Posted April 21, 2020

Appendix

  1. Animation in Forensic Work: Use and Misuse. Posted January 12, 2022
  2. Telling it like it is, in forensic expert report writing. Posted January 27, 2022
  3. What did we get from a good talk on animation in forensic work? Posted February 27, 2022

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, March 31, 2022. ejorden@eastlink.ca)   

Experts must keep animation simple when reporting to clients, but what does ‘simple’ look like?

Keeping “Animation” simple was one good idea that I got from the Zoom meeting six of us had on animation in forensic work.

Animation is a procedure that brings to life the scene – in model form – of a failure in the built environment or an accident on a highway. It relies on the same basic principles and methods that produce the funny cartoons in TV ads. (Refs 1, 2 and 3)

However, there is a risk of mistaken or deliberate misuse of animation in an expert’s work. The risk was thought to be small, but you should read the animation software sellers’s promise of “building a solid case” to know it’s there. The promise will appeal to some.

Keeping it simple reduces the risk of mistakes or mischief. If the animation is submitted as evidence, it also helps parties to the judicial and dispute resolution processes better understand what happened to cause the failure or accident.

Simple is less entertaining and fun to watch but more focused on cause. Mistakes and mischief are also more likely to be found out.

I thought it would help if you saw some simple animations to learn what to look for in your expert’s report. The following were suggested by my colleagues (see Appendix) as examples of the simple and the complicated, the good and the bad. I highlighted in red what I thought were simple animations:

(Gremlin alert!! I’m sorry, a gremlin got in the works. You must copy the links for #1 to #15 below longhand then type in Google to see the animation. I tried to fix the problem but got nowhere. The links highlighted in red are worth the longhand effort. The links for #1 to #9, way below, work okay; just click on them and away you go)

  1. Favorite Accident Reconstructions https://www.youtube.com/watch?v=JJHZ5QcDe1o
  2. Pedestrian Night Accident Animation and Laser Scan https://www.youtube.com/watch?v=cPluPmAabjE
  3. 3D Laser Scan Crash Visualization https://www.youtube.com/watch?v=rM5ncfXkFsM
  4. PC-Crash 12.1 available – VR video https://www.youtube.com/watch?v=jNJyWOHPOxU&list=PLeVcNHSgLdvnmL-DciU1hopWUO6iQlFCp&index=13
  5. PC-Crash 12.1 – 360 VR driver’s perspective video https://www.youtube.com/watch?v=OH-QkvDMio0&list=PLeVcNHSgLdvnmL-DciU1hopWUO6iQlFCp&index=12
  6. LiDAR vs Photogrammetry Data Outputs for slope stabilisation works https://www.youtube.com/watch?v=tLNB2NG4Gzk
  7. Photogrammetry vs RGB-Fused-LiDAR on a Phoenix System https://www.youtube.com/watch?v=5CyOX7IsQNM
  8. Truckee River Flume Photogrammetry vs Lidar https://www.youtube.com/watch?v=HLlxEcDFYIQ
  9. Drone LiDAR vs Photogrammetry | Epic Stadium 3D model https://www.youtube.com/watch?v=_RNiWTJw3KA
  10. Cool https://www.youtube.com/watch?v=dnZ4I3FFnUI
  11. Princess Di https://www.youtube.com/watch?v=86eJs-ULapw
  12. Crush https://www.youtube.com/watch?v=lgOpSh8eTPw
  13. Day to night trucks https://www.youtube.com/watch?v=JNsBYyUb8q0
  14. Jenner https://www.youtube.com/watch?v=F9hA8D4k2_4
  15. Gyro https://www.youtube.com/watch?v=8c1lF6uEmu
  1. Favorite Accident Reconstructions https://www.youtube.com/watch?v=JJHZ5QcDe1o
  2. Pedestrian Night Accident Animation and Laser Scan https://www.youtube.com/watch?v=cPluPmAabjE
  3. 3D Laser Scan Crash Visualization https://www.youtube.com/watch?v=rM5ncfXkFsM
  4. PC-Crash 12.1 available – VR video https://www.youtube.com/watch?v=jNJyWOHPOxU&list=PLeVcNHSgLdvnmL-DciU1hopWUO6iQlFCp&index=13
  5. PC-Crash 12.1 – 360 VR driver’s perspective video https://www.youtube.com/watch?v=OH-QkvDMio0&list=PLeVcNHSgLdvnmL-DciU1hopWUO6iQlFCp&index=12
  6. LiDAR vs Photogrammetry Data Outputs for slope stabilisation works https://www.youtube.com/watch?v=tLNB2NG4Gzk
  7. Photogrammetry vs RGB-Fused-LiDAR on a Phoenix System https://www.youtube.com/watch?v=5CyOX7IsQNM
  8. Truckee River Flume Photogrammetry vs Lidar https://www.youtube.com/watch?v=HLlxEcDFYIQ
  9. Drone LiDAR vs Photogrammetry | Epic Stadium 3D model https://www.youtube.com/watch?v=_RNiWTJw3KA

References

  1. Animation in Forensic Work: Use and Misuse. Posted January 12, 2022
  2. Telling it like it is, in forensic expert report writing. Posted January 27, 2022
  3. What did we get from a good talk on animation in forensic work? Posted February 27, 2022

Appendix

The animation links were suggested by Adam Cybanski, Gyro Flight & Safety Analysis, Inc, Kemptville, Ontario, Stuart Smith, C. R. Tyner and Associates, Dartmouth, Nova Scotia, and Ken Zwicker, Atlantic Crash, Pentz, Nova Scotia. These chaps specialize in traffic accident reconstruction and related fields. They serve as experts when called on.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, March 11, 2022. ejorden@eastlink.ca)   

What did we get from a good talk on animation in forensic work?

A few days ago, six of us had a free ranging Zoom talk about using animation to determine the cause of a traffic accident. It was prompted by questions like the following:

  1. Is there a problem using animation in forensic work?
  2. What’s the problem?
  3. How serious is it?
  4. What’s the cause of the problem?
  5. How can the problem be fixed?

I learned from the talk that in spite of the mess at the scene of a traffic accident there are reliable methods that experts use to determine the cause. These methods involve modeling and animation software that are input with data and measurements got at the scene.

But, misleading data can also get into the software. It was this fact that prompted one person to suggest blogging about animation in forensic work. (Refs 1, 2) Another suggested a Zoom talk about it. It’s a problem because once the participants in the judicial and dispute resolution processes see a misleading animation they can’t un-see it – the impression has been made.

Participants who might be misled include:

  • Insurance claims adjusters
  • Civil litigation lawyers
  • Judges and jurors
  • People involved in alternate dispute resolution
  • Injured parties in general

The data obtained during an accident investigation is put into modelling or simulation software that develops an inanimate model picture of the accident scene that includes the vehicles and features involved. Some of the data also goes into animation software connecting this software to the inanimate model making the vehicles appear to move.

Examples of animation:

The cartoon figures you see in TV advertisements started out as inanimate pictures in modelling software. Animation software got the figures moving to amuse and catch our attention – and prompt us to read the advertisement.

The same principles underlie the animation of a traffic accident that helps us understand what happened. Some animations are alarming to watch and not amusing.

You might take a look at the following simple animation depicting an accident from different view points and by the different drivers involved in the accident. It will give you an idea of what I’m talking about. If you are somewhat in awe at what you see then you understand part of the problem with animation in forensic work:

https://www.youtube.com/watch?v=JFCFNDeoHKA

Talkers at the Zoom table:

  • Two traffic accident investigators (Reconstructionists; the name in common use in North America),
  • A former accident investigator who now lectures,
  • A fourth chap who also investigates failure in general as well as traffic accidents,
  • A fellow who animates the results of traffic accident investigations,
  • And your’s truly who investigates the cause of failure in the built and natural environments.

Stages followed during an accident investigator:

  1. Collect data. Data like published mapping and photography of the site including a Google Earth image and/or drone photography. Walk and visually examine the site. Measure and photograph features at the site, and, Read police reports on the accident.
  2. Analyse data. Draw diagrams of the accident site. Place the objects (vehicles) and features associated with an accident on a Google Earth image to produce a land surveyor-type site plan for use in the simulation/modelling software. Model the traffic accident using published software. Animate the model using software to better understand the data and to ‘give it life’.   Add colour, lighting, texture, etc. to the animation software.  Study and note the different causes of the accident as indicated by the individual data. Note the extent to which one cause of the accident is indicated by the bulk of the data.
  3. Draw conclusions. Conclude the different causes of the accident as evident in the data and why one cause is more probable than another.
  4. Form opinion. Draft opinion on the cause of the accident.
  5. Write forensic report Write report in technical English, plain English or a combination technical/plain according to the requirements of the client.

Some questions asked by a traffic accident investigator:

  • How many vehicles were involved?
  • What kind of vehicles were there?
  • Which vehicle crossed into the other lane?
  • How did they get the exact positions of all vehicles?
  • How many lanes were?
  • How big was the shoulder?
  • What were the lane markings like?
  • Were they worn?
  • Were there tire skid marks and where were they located?
  • How long were the marks?
  • What was the skid resistance along the marks (coefficient of friction in high school physics)?
  • Were there pedestrians or other obstructions on the road?
  • What was the weather like (clear, rain, snow)?
  • What time of time was it (night, dawn, day)?
  • What was the visibility like?

You can easily imagine how careful a reconstructionist must be with so much data to collect and input. S/he must know how to use the software correctly, know the correct values to input, and how to correctly interpret the results. There’s no room for error in a forensic investigation when giving an opinion on cause.

  • Soft data like visual effects (lighting and colouring) can also be useful if added to the software. But, you’ve got to be careful with this one.

One talker at the Zoom table noted: “I think whether it’s animation or simulation/modelling, the input values need to be shown to be correct, or at least reasonable, for the results to be correct and admissible. My concern is when realistic but unproven graphics such as lighting and colouring are used.  These effects can leave a subconscious impression on a judge or jury that can affect their perspective and judgement.” 

Accurate animation software

Most accident reconstructionists accept that the modelling and animation software programs most frequently used are accurate. These are PC-Crash and Faro Blitz to name two of three or four. Nevertheless, where possible, calculations are checked by hand and input values made certain.

Misusing animation software

It’s also at the modelling and animating stages that inadvertent or deliberate misuse can occur. The talkers at the Zoom table didn’t think the latter was a serious problem.

Still, the software sellers “build a case” promise still rings in my ear, and how that must resonate in the ear of some bad-cat experts.  Google forensic animation and see for yourself. I am comforted by Ruth Corbin’s findings in her excellent pilot study of 152 experts that all experts clearly understand that they serve the judicial process not their client or themselves. (Ref. 3)

Expert reporting in plain, jargon-free English

With so much data/input arising from a traffic accident reconstruction I believe expert reports in plain English are essential for non-technical readers, or at least a summary report.  Animations are so realistic – and in many ways, entertaining like a roller coaster – it’s essential to help readers know what they’re seeing and must focus on.

What did I get from our talk?

  1. Animation in forensic work is helpful in resolving disputes, particularly in determining the cause of traffic accidents, but keep it simple.
  2. Don’t submit the animation as evidence unless it’s a simple animation.
  3. Check the input data. Check the output animation when possible.
  4. It’s difficult to correct a false impression taken from an incorrect animation.
  5. Modelling and animation software are quite accurate.
  6. But remember that the software seller is in business to sell software, and help you “build a case”, as s/he sees it.

References

  1. Animation in Forensic Work: Use and Misuse. Posted January 12, 2022. Updated January 20, 2022
  2. Telling it like it is, in forensic expert report writing. Posted January 27, 2022
  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 (Google this excellent paper and Ruth’s name)

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, February 27, 2022. ejorden@eastlink.ca)   

Telling it like it is, in forensic expert report writing

I was surprised a day after posting my blog about animation in forensic work – almost like a light coming on – that misinforming the dispute resolution process was the key issue. Or not informing it properly.

Relevant to this issue are bias and also initial impressions taken by non-technical parties to the dispute. Parties like busy judges with a full docket and non-technical backgrounds. (Ref. 1)

Misinforming can include misuse of animation and modelling software and, by omission, not explaining in jargon-free English how the software works and what the expert’s report is saying.

I don’t use this software in my forensic work and learning about it to blog about it was a bit of grind. However, I do write my expert reports in jargon-free English.

If it was a grind for me, I can’t imagine what it would be like for a non-technical client trying to learn something about the software used to solve their problem. It’s important to know what you’re buying – the software and how it was used to determine the cause of your problem – and have this explained in simple English.

Bias in forensic work is an important issue too. There are as many categories of bias as letters in the alphabet – check out what might be called a wheel-of-misfortune (my label) on Dr. Google.

This problem of bias for experts was addressed at a conference in Toronto in 2018. (Refs 2, 3 and 4) Speakers identified (8) eight categories of bias in expert evidence of which two were discussed at length: (Refs 3 and 4)

  1. Expectation bias (Anchoring)
  2. Confirmation bias (Tunnel vision)

A busy court docket is another important issue, and dispute resolution processes that push for quick decisions. These decisions sometimes end up based on incorrect initial impressions that can’t be removed from the judge’s head. Decisions on technical issues by non-technical people. (Refs 5, 6 and 7)

Conclusions

What’s to be done about these important issues? This is what I think based on my insight a day after posting my blog earlier this month – when the light really came on:

  1. The forensic expert must learn how the animation and modelling/simulation softwares are designed, particularly the basis of the designs
  2. Learn about the accuracy of the software and what the software seller’s claim of accuracy is based on. How does s/he know?
  3. Explain the software and it’s accuracy to the client in jargon-free, non-technical language
  4. Alert clients to some of the key forms of bias as might show in expert work, both the deliberate bias, and the tricky bias that creeps up on all of us at times
  5. Write and submit expert reports in jargon-free, non-technical language, possibly also in technical language – two reports(?)
  6. Express concern to the client about problems with a decision maker’s initial impressions, like those of judges, jurors and those involved in dispute resolution.
  7. Also our concern that clients will pick and chose from our reports in the best interests of their clients, even though our reports are meant to serve the judicial process thoroughly and objectively.

References

  1. Animation in Forensic Work: Use and Misuse. Posted January 12, 2022
  2. Expert Witness Forum East, Toronto, February 27, 2018
  3. Expert Witness Forum looks at Bias and Other Touchy Subjects in Forensic Work. Posted March 8, 2018
  4. Are experts being broadsided by bias unbeknownst to them? Posted April 12, 2018
  5. Corbin, Ruth, in discussion on a couple of occasions
  6. Capurso (1998), Timonthy J., How Judges Judge: Theories on Judicial Decision Making, University of Baltimore Law Forum Vol. 29: No. 1, Article 2
  7. How experts are helping break the expert evidence logjam. Posted April 30, 2018

(There are additional references at the end of some of the above that are also good)

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, January 27, 2022. ejorden@eastlink.ca)   

Animation in Forensic Work: Use and Misuse

I learned recently that computer animation, and modelling or simulation, while useful in forensic work, including accident reconstruction, can also be misused. Sometimes by mistake, other times deliberately.

It doesn’t help that software sellers claim accuracy but don’t give data backing up their claim. Nor do the claims that animation can help “build a solid case” when forensic experts must be objective in serving the judicial and dispute resolution processes.

I wonder to what extent each of you are aware of these problems:

  • Insurance claims adjusters
  • Civil litigation lawyers
  • Judges and jurors
  • Dispute resolvers
  • Injured parties, in general

If you’ve got a few moments, the following is certain to enlighten you.

***

To animate means, figuratively, to “give life to”. For example, make an object seem to move. The moving cartoon figure seen in a TV commercial or a teenager’s cell phone might begin as two inanimate pictures of a figure with the head or an arm in different positions in each picture. Animation software adds additional pictures between the two with the head or arm in slightly different positions. This gives the appearance of movement to the cartoon figures.

A distinction must be made between animation which simply moves objects between specified start and end positions and modelling or simulation which does this based on characteristics of the object.

For example, in modelling the characteristics of a vehicle like a car might be it’s weight, tire friction, and how it brakes and steers. In animation these characteristics might not matter so much.

***

The object in forensic work might be a car involved in an accident that an expert is reconstructing to determine cause.

The expert collects data from the accident scene like the road conditions at the time, the location and length of skid marks, car specifications and impact speeds.

Animation and modelling software allows the reconstruction expert to place this data on a Google earth image or on a photograph taken from a drone or an airplane. The expert can also add data like labels, text and direction of travel.

If the topography of the site and the location of things on or beyond the road have changed since the aerial photographs were taken, the software allows the expert to correct this data.

In the old days this would be done by a draftsman drawing the scene from a land surveyor’s notes and adding the data from the reconstruction expert. Slower for sure but also more accurate.

After getting this input the animation/modelling software provides a set of data which describes the motion of objects at the accident scene – not unlike the cartoon figure in the TV commercial. For example, the speed and direction of travel of the cars involved in the accident.

***

The reconstruction expert can correct the software input data based on evidence from the scene if the output from the software is at odds with the field data. For example, the location of skid marks or the location of damage on the car.

This would be good use of animation software – as long as the accuracy of the software is understood compared to actual measurements at the scene by an expert and/or land surveyor.

Examples of good use

Following are some examples of the good use of animation and modelling software, and supporting techniques like Google Earth and aerial photography:

  1. As indicated above, correcting the input data to the software based on evidence from the scene – taking into account the accuracy of the software
  2. Input honest data to the animation and modelling software, rather than tweaked data designed to produce a desired but misleading result
  3. Checking the accuracy of animation and modelling software used in accident reconstruction At the very least, query the seller about the basis for their accuracy claims. Better still, check using independent data from an accident site or a failure in the built environment. This should be done before or during use of the software Do this for sure during peer review of another expert’s report on forensic work that relied on computer software Example: I read a report one time on an accident reconstruction. The speed of the vehicle was an issue. The software gave a speed that was greater than a verbal report by one of the parties. An independent check using different data confirmed the software output and the incorrect verbal report
  4. But experts and their clients must be careful. Accident reconstruction using a Google Earth picture of a site in an urban area can be very reliable because the resolution of urban Google Earth pictures is good. That of sites in rural areas is poor. This is because Google Earth pictures in urban areas are taken at lower altitudes. Example: I analysed the cause of a retaining wall failure on a residential street in Ottawa using an image from Google Earth. The resolution was so good you could take off the size of cracks in the wall. This kind of accuracy would approach that needed in accident reconstruction using animation and modelling software.
  5. The source of the site image used by animation software is of interest too. Site maps and images based on laser scanners (check Lidar on Wikipedia) are excellent. Unfortunately, they are less available. Example: I investigated the cause of a swimming pool failure in Cape Breton a few years ago – excessive foundation settlement. But why? The site was in a rural area that I was surprised to find had been scanned by a laser. I learned that it was a trial use of this mapping technique – lucky for me and my client. I studied the laser picture – a task called terrain analysis in civil engineering – and saw that part of the swimming pool was built over wetland, a swamp. This was not evident on the ground. Example: On another occasion I investigated the cause of fuel oil contamination of a rural site up on the Cape. In preparation for terrain analysis, I saw that Google Earth imagery was too blurred, the contours on topographic maps were too large, and laser scanned imagery was planned for this very area but not done yet. So I had video taken from a drone of the contaminated site and that solved an important issue at the contaminated site.

You must be careful about the aerial pictures used in animation and modelling software same as you must be careful about the claimed accuracy of the software. Honest input to the software, understanding image resolution, and investigating software accuracy are good uses of animation software.

***

Surprise! A hired-gun-expert could input data from the accident scene but tweaked a little to support building a solid case. This would be naughty use of animation software.

Examples of naughty use

Following are some examples of misuse of animation and modelling software by mistake or design:

  1. Accuracy of a vehicle’s motion.  We know that any velocity, distance, orientation and time can be input to software and then set to motion and recorded as video.   Example: In animation, incorrect, even impossible values can work.  Examination by an opposing expert should be able to find these errors.
  2. Use of animation offered by current software that has realistic, unverifiable effects such as lighting, surface textures, vehicle damage, human figures and colours. The problem arises when the effects are inaccurate, producing video and stills/screen grabs that can prejudice a viewer, without the viewer even being aware of it.  Examples of tricks you can play with software that’s on the market now: (a) Colour and lighting can increase or decrease contrast, causing a human figure representing a pedestrian to appear more, or less visible, or conspicuous.  (b) The sky effect can make a nighttime scene look darker or lighter.  (c) Vehicle headlamps, tail lamps and brake lights can be more or less conspicuous than they actually were.  (d) The light pattern from animated headlamps may well be more or less than produced by the actual headlamps.  (e) The colour and texture of road surfaces can leave a viewer with the subconscious idea that the surface was slippery.   (f) Vegetation (bushes, trees, etc.) can be more or less of a view obstruction/restriction than the actual vegetation.
  3. Animations need to be carefully authenticated for accuracy (both motion and visually) before they are admitted into evidence.  The probative value of evidence needs to outweigh the prejudicial.  Example: The problem can arise when the court is not aware of how, or how much an animation is prejudicial.  That’s when the expert needs to inform their client. 

***

Animation and modelling/simulation software are wonderful tools for those of us doing forensic work.  But using effects that cannot be authenticated must be kept to a minimum.  Some skillful animators can’t seem to resist, whether it’s to produce a pleasing result, or a misleading one, maybe both, intentionally or unintentionally.

***

(In the spirit of Wikipedia, these two sections of my blog can always use additional examples of good use and naughty use of animation and modelling software)

Summary

I’m sure this issue of animation in forensic work is new to a good many non-technical clients representing injured parties. What’s an injured party or a claimant to do surrounded by such technology?

Here’s what you do. Ask questions of the forensic experts about

  • the use and misuse of the animation and modelling/simulation software,
  • the accuracy of the software,
  • the shortcomings of the software, and
  • be on guard and ever alert to the deliberate misuse.
  • And get answers in jargon-free language.

It’s not hard to understand that you can play games with animation in forensic work not unlike what’s done in TV commercials and on kid’s cell phones.

Acknowledgement

The content of this blog is based on my forensic engineering experience, research online, discussion with others in forensic work, and common sense.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, Updated: January 20, 2022. ejorden@eastlink.ca)   

The humble pig rises to new heights in a heart transplant, and a forensic investigation

I was amazed to learn about the pig-heart-transplant last evening on the TV news! A break-through for medicine and a last chance for 57 year old David Bennett of Maryland. “I may die”, he said, “but they may learn something to help others”. Such a noble thought on the eve of such an operation. He’s doing well three days later.

The news story reminded me about a forensic engineering investigation several years ago when I used skin from the stomach of a pig to test the skid resistance of a sauna floor in a slip and fall accident.

Not in the same league as the medical first but I’m certain an engineering first on the East Coast of Canada if not farther afield. And both typical examples of how Maritimers and Marylanders work things out living close to a fickle sea that throws one surprise after another at us.

There was at least one other first during this investigation, but first, how did I come to test the floor this way?

How did I test the floor with a pig’s help?

We test the skid resistance of a floor using the shoe worn by the victim at the time of the accident, as the drag sled. But, how do you drag a victim’s foot across a sauna floor?

(A drag sled is an object of known weight pulled across a floor and the pull measured. The ratio of the one to the other gives the skid resistance in engineering – the coefficient of friction in high school)

I did think about how I might use the victim’s foot but concluded there was too much risk for the victim and uncertainty in the results.

I remembered that a friend, a professor in the Dal University nursing department used dummies, including dummy legs, to teach nursing students. I chatted with her and examined one of the dummy legs.

It was a step forward but better still I chatted briefly with another in the medical department and learned that doctors recognized pig skin as similar to human skin. They got their pig skin from a butcher in Bedford to teach Dal medical students. A big step forward.

But to be real sure, I chatted with one of my daughters, a veterinarian, and she referred me to a research vet at the University of Prince Edward Island. I called this chap and confirmed that indeed pig skin was similar to human skin.

I went out to the Bedford butcher and got my 15″ x 8″ x 2″ slab of pig skin. Then back to the office to work out using this pig skin as a drag sled. Then to the accident site to carry out standard drag sled tests of skid resistance of the wet, dry sauna floor.

Hmmmm, how does a dry sauna floor get wet?

The penny dropped during an earlier visit and walk-through of the accident site – a shuttered recreational centre with a swimming pool, locker room and showers. These walk-throughs are invaluable when we saunter about the accident site, kick the tires, so to speak, and get calibrated to the site. They are invaluable.

So, on the skid testing day I took my bathing suit and a towel, took a shower – forgetting that the water in a closed rec centre would be cold 🙁 – and walked to the dry sauna dripping water everywhere, including on the dry sauna floor. Then I did my drag sled testing of skid resistance of the wet sauna floor using pig skin that is like human skin.

***

There was nothing in the engineering text books about solving this slip and fall accident, same as there was nothing in the medical books to guide using a pig’s heart to save a guy.

Give us time and leave us alone and we’ll figure things out Down East – experienced forensic engineering experts and medical doctors – and if it’s newsworthy, maybe show up on TV late at night.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, January 11, 2022. ejorden@eastlink.ca)   

The ethics of contingency shopping

I was troubled on two fronts recently. One when a firm from away asked if I would investigate the cause of an accident on contingency. The second when I thought to give others a heads up that a firm was looking.

The second came to mind when I declined the commission and I didn’t hear back from the firm. It occurred to me the firm would call the few others on the East Coast who could do this forensic work. I knew the others – should I let them know? I didn’t and that bothered me for a while.

I resolved the two-front, ethical dilemma implicit in this situation after reflecting for a while.

Number #1

My problem with being asked in the first place was that it was at odds with common law requiring that a forensic expert: (Refs 1, 2)

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

These requirements are the same in all issues involving dispute resolution and claim settlement. They mean than an expert must engage on a fee basis not on contingency, and accounts kept up to date. Otherwise, s/he would be seen as biased and have a vested interest in the outcome of the dispute. Perception is everything.

The great majority of experts know that they serve the process, as found in a pilot study of 152 Canadian experts, not the party who retains them. (Ref. 3)

But, to be sure that there wasn’t another school of thought out there on experts and contingency I contacted the head of another law firm from away. I haven’t been answered as quickly before as in this case – slammed would be more correct: “Absolutely not!”.

But why would a large, experienced law firm ask an expert if they would take an assignment on contingency? They would know the common law, and also that an expert perceived to be biased would be of no value to the judicial process.

Of course, for the law firm, as advocates for injured parties who do not have enough money to seek justice, it’s seen as an acceptable process for both the firm and the injured party.

I figured the problem developed for the firm because the person who contacted me was a junior lawyer or a paralegal who just didn’t know. Their law firm took cases on contingency, why not an expert?

The junior person gave himself away relative to his experience when he asked me to take the case on contingency. Then saying the case was expected to settle in about a year – it would be a first compared to a more normal several years.

Realizing this, I was satisfied that I was contacted by an ethical firm but represented on this occasion by an inexperienced person.

Number #2

I did not contact the other experts to give them a heads up about a shopper in town. Was I unethical in some way?

I was uneasy for a while. Then I realized that experienced engineers on the East Coast know that as experts they serve the judicial process. (Ref 3) There was no need to alert them. We know there are one or two down here who would be receptive to being retained on contingency but alerting them to the shopper would not change their inclination.

I felt okay after thinking things through on this front too.

Summary

I’m thinking that contingency – getting paid when the money comes in – is okay for some parties to a dispute. It’s the perception, if nothing else, even though it’s more, that’s bad for experts. Add to that the risk of unintentional bias. At the end of the day, all things considered, some parties to a dispute or claim resolution give contingency a wide berth – ethical experts for example.

References

  1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004 Thompson Carswell
  2. Principles governing the cost control of dispute resolution and claim settlement involving experts. Posted September 24, 2020. Updated September 24, 2020, March 18, 2021 and December 30, 2021
  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 December 30, 2021. ejorden@eastlink.ca)