What guides the ‘rhyme or reason’ of forensic engineering investigation?

What guides civil engineers carrying out a forensic investigation?  What ensures we do thorough work and give an objective opinion – in keeping with the requirements of the judicial system?  There’s usually little on this in the Appendix of an expert’s report so you could be excused for wondering.

There are, in fact, excellent guidelines in place and some are well thought out after decades of development.  They ensure the judicial system is well served.  And they’re enhanced by rules-of-thumb like the following picked up by experienced engineers over the years.

  1. Follow the evidence – an old chestnut that – for certain evidence that leads to follow-up investigations
  2. If you need more data, get it
  3. If in doubt, go deeper, particularly if the foundation soils are involved in a failure
  4. Expect the unexpected
  5. Beware the tyranny of the obvious when determining the cause of a failure
  6. Get your hands dirty and mud on your boots – get out on the site of a failure; no excuses
  7. If you can measure it you can manage it, particularly if the failure involves the natural environment as well as the built environment

I thought to mention the existence of guidelines to advocates and adjusters for a while now, particularly when a client is retaining an expert for the first time.  Also when the failure is small or medium sized as most are – not catastrophic and newsworthy – and the budget is small.  The standards are high regardless the size.

I looked through my library and found about three and a half dozen books that have guided me carrying out forensic investigations over the years.  Your eyes might glaze over at such a list.  But take a look at the following selection and be assured that civil engineers are being well guided, particularly by the literature from ASCE and SEAK.

The American Society of Civil Engineers (ASCE) has been guiding civil engineers in practice since about 1857 – 160 years – longer than Canada’s 150 years!  SEAK has been reviewing 1000s of case histories involving experts for more than 30 years, learning from what they read and passing it on to experts.  There’s a lot of guidance out there and a high standard set for civil engineers.  You can see it in the titles of the following::

  1. Lewis, Gary L., Editor, Guidelines For Forensic Engineering Practice, 2nd edition, American Society of Civil Engineers, ASCE, Reston, Virginia 2012
  2. Greenspan, Howard F. et al, Guidelines for Failure investigation, ASCE, Virginia, 1989
  3. Janney, Jack R., Guide to Investigation of Structural Failures, 2nd edition, ASCE, Virginia, 1986
  4. Ratay, Robert T., Forensic Structural Engineering Handbook, McGraw-Hill, New York 2000
  5. Nicastro, David H., Editor, Failure Mechanisms in Building Construction, ASCE, Virginia, 1997
  6. Noon, Randall K., Forensic Engineering Investigation, CRC Press, Inc., Boca Raton, Florida 2000
  7. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, 2nd edition, SEAK, Inc., Falmouth, Mass. 2014
  8. Zinnsser, William K., On Writing Well: The Classic Guide to Writing Nonfiction, 7th edition, Harper Collins, New York 2006
  9. Roberts, Donald V., Expert: A Guide to Forensic Engineering and Service as an Expert Witness, Association of Soil and Foundation Engineers, ASFE, 1985
  10. Speight, James G., The Scientist or Engineer as an Expert Witness, CRC Press, Boca Raton, Florida 2009
  11. Cohen, Kenneth S., Expert Witnessing and Scientific Testimony, CRC Press, Boca Raton, Florida 2008
  12. Babitsky, Steven and Mangraviti, Jr., James J., The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc., Falmouth, Mass., 2008
  13. Stockwood, Q.C., David, Civil Litigation, 5th edition, Thomson Carswell, Toronto 2004

I don’t expect you to check out these references too thoroughly, certainly not read them. Just know that civil engineers are guided by good literature on how to carry out thorough forensic engineering investigations and render objective opinions.  And experienced engineers have their rules-of-thumb.

A thought: What guides your expert carrying out a forensic investigation in their field of study if s/he is not a civil engineer?

 

Conference call on a “drone flight” reduces cost of civil litigation

I had a conference call with a property owner while both of us were viewing aerial video of the property taken from a low flying drone.  It was a cost effective way of resolving some technical issues about the property without a day long trip plus time on site.

I took the video earlier during my forensic investigation of a problem there.  While analysing the video I concluded I had found key evidence relevant to the problem.  But like all air photo interpretation, ground-proofing was in order – get boots on the ground and your hands dirty confirming what you thought you saw.  This is a basic technique in civil engineering and terrain analysis.

I mailed a CD of the video to the property owner, then called and asked the owner to load the video on a computer, go to a certain frame on the video – easy to do with a counter at the bottom of the video – and tell me why the site looked the way it did at that location.  The owner did that and confirmed my interpretation of the surface conditions there - plus added to the significance of the evidence with some history of that part of the site.

It truly was a windfall of data got during a conference call with my client while each of us viewed the video.  Who would have guessed made possible with a drone - a device that may have started life as a simple toy flown by kids in backyards? (Ref. 1)

I’ve since thought about splitting computer screens and Skyping on one screen with my client while viewing aerial video on the other.  Just now I’m realizing I can examine anything on a split screen with a client while Skyping with him/her on another.

***

We then “toured” the rest of the property via the aerial video and confirmed the location of other features relevant to the problem.  I had seen these features on site but wanted to hear the client talk about them.  Surprisingly, another feature of the site was noted that was not so evident on the ground nor in the video.  It also was evidence relevant to my client’s problem.

So, all in all, quite a conference call.  There’s no question this method has gone into my arsenal of forensic engineering investigative methods.  A method that will also reduce the cost of civil litigation.

Reference

  1. Bartlett, P.Eng., Gary. Wellington, Nova Scotia. Private communication

Peer review pays off – 17 years later

Monitoring the clean-up of a fuel oil spill in 2000 paid off early this year.  The pay-back was the recent opening of a file at the Nova Scotia DOE based on records I kept that confirmed the residential property had been cleaned up.  I was retained at the time to ensure the remediation conformed to good engineering practice – peer review.

(By contrast, the benefit from peer review in civil litigation - quality control of the thoroughness and objectivity of the forensic investigation - is immediate, rather than years later. Refs 1, 2 and 3)

A DOE file on a residential property is normally opened after fuel oil spills and closed on receipt of a report that the property has been cleaned up.  It was missing in DOE’s files as the property owner – my client 17 years ago – learned in anticipation of selling his property.  Buyers and sellers both want assurance that a property is clean and that comes from DOE’s files.

My client asked and I confirmed that I had a copy in my files of the final report by the engineering firm who did the remediation plus all my field notes and photographs taken during my work.

Why the usual file was missing 17 years later is not so important to my story – except to draw attention to the worth of peer review.

The story began in early 1999 when my client smelled oil in his home.  Investigation by a consulting engineering firm at his neighbour’s property uphill found that a 200 gallon furnace oil tank had leaked an unknown quantity of fuel oil.

The firm supervised the remediation of the property.  This involved locating and excavating the contaminated soil and removing it from the property.  Some soil was also excavated from my client’s property.

My client, a retired professional engineer, wasn’t so happy with the firm’s recommendations for remediating his property.  At his request, the insurance company retained another consulting engineering firm to do an independent assessment – in a sense, the start of the peer review process.  This was done and their assessment was accepted.  The second firm then went on to direct remediation of my client’s property.

My client was still uneasy because of the two sets of consulting firms and clean up operations on adjoining residential properties.  He retained me to monitor everything that took place on his property.

Remediation of fuel oil spills is fairly simple in most cases in the Atlantic provinces relying as it does on the scientific method and basic engineering.  It just looks difficult because it’s messy.  Remediation involves:

  • Learning the location of the oil or where it might have drained,
  • Sampling and testing the soil and ground water for oil at those locations,
  • Removing soil that has too much oil by acceptable standards, and,
  • Replacing the contaminated soil with clean soil.

Possible locations are identified by:

  • Characterizing the drainage pathways of the subsurface soil - the medium that the oil will flow across and through – often, simply contouring the surface of the ground, and,
  • Also determining how foundations are constructed on a site that might be affected by soil that has too much oil.

An analogy: Spill water on your house floor, and in mopping it up you look where some of it has drained because you know the floor is almost level, but not quite - the character of floors.  And you clean it up because the floor might be damaged by the water if it’s not.

***

Peer review is checking that something has been done to an acceptable standard.  We often associate it with review of a report – check that it’s well written and that the data has been analysed according to scientific principles.  It can involve confirming that the forensic investigation was carried out to an acceptable standard and the data is reliable.  Peer review can also mean checking that something is being done properly as it’s being done – the situation at my client’s properly.

“Hot tubbing” might be thought of as a form of mutual peer review – experts from different parties in a civil litigation case gather round in a meeting and review each other’s report.  It’s increasingly accepted as a case-expediting and cost management technique. (Ref. 4)

In my case in 2000 I was on site full time to note what was done and that it conformed to good practice, to independently measure and photograph the clean-up as it progressed, attend site meetings and report daily to my client.

In general, the work was done very well, and good records kept that saved the day 17 years later.  There was one issue about the need to construct a groundwater monitoring well - a way of checking for oil in groundwater over time, oil that we don’t want.  This resulted in independent investigations, reports and opinions – including my own.  There’s always a few issues that are resolved by experienced engineers talking.

***

Peer review cost my client money.  But it would have cost him an awful lot more money if he tried to sell his house and the word on the street was of an oil spill on the property and no records were available that it was cleaned up properly.

It’s not too much different in civil litigation.  A cost up front for peer review of a forensic investigation, or a much greater cost later when rebuttal of an inadequate investigation and a poorly written expert’s report is turned into a nightmare. (Refs 3 and 5)

References

  1. Peer review in forensic engineering and civil litigation.  Posted November 26, 2013
  2. Peer reviewing an expert’s  report ensures the justice system gets what it needs.  Posted January 15, 2016
  3. Peer review costs can be controlled.  Posted January 22, 2016
  4. Biased experts cured with a soak in the “hot tub”.  Posted January 31, 2017.
  5. Mangraviti, Jr., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, the Preface, SEAK, Inc, 2014

 

Getting evidence with a low cost, low tech drone flight over a forensic site

Aerial video of a failure or accident site taken from a drone is one of the lowest cost, lowest technology tasks ever in forensic investigation.  And one of the best ways of getting and presenting evidence.  Like $285 for 34:41 minutes of video on one of my recent investigations.

And if you like, yours could be taken with a GoPro camera, like those on an Alpine skier’s helmet, borne aloft on a Walmart drone.  I’ve seen GoPro-Walmart quality video of a P.E.I. beach scene taken by a hobbyist and it was good.

My aerial video is taken by a photographer who does contract work for CBC (recently on assignment getting Canadian 150 year birthday video) with multi-thousand dollar equipment, for the Walmart charge-out fee, and his footage of my forensic sites is excellent.

It’s also a feel-good task as well as low cost, simple technology.  You’re seeing the site in a different and revealing way.  You know you’re getting lots of valuable data captured on 1,000s of frames for study of any one or more later.  You can even measure features on these frames by placing large ”rulers” on the ground in different positions before your flight - simple “ground control” in land surveying jargon.

I was prompted to mention this when a reader remarked that he didn’t think his forensic investigation needed high tech aerial video of an accident site.  (It doesn’t, based on his description of the site, but this kind of technology came out in a remark of mine about different engineering methods)

He could be excused for thinking like that, particularly in light of the recent, front page Globe and Mail coverage of the new, much-needed DOT regulations governing recreational drone flights.  The regulations are strict and penalties severe if you don’t abide.

They are needed when you learn how quickly you can climb hundreds of feet – and into a plane’s flight path.  Or zip around a multi-story building – and into a closed window.  In fact, think stings-like-a-bumblebee because that’s the speed and faint background sound you get as you videotape a failure or accident site.  My professional photographer abides of course.  We have been for a couple of years since he started taking low cost aerial video of my forensic sites.

The take-away from this is the valuable data you get with low cost, low tech aerial video – and feeling good and having fun while you’re getting it.  The photographer flies the drone while you direct the video coverage from the “co-pilot’s seat”, a flight monitor on a tripod nearby.  This technology is certainly not applicable to all investigations as my reader noted but valuable when it is - and an impressive way of presenting evidence to the judicial system.

(Hello: Read some of the blogs below, for sure, #5, to get a feel for the valuable expert data possible with a low cost aerial video of your site)

References

  1. “Crewing” on a forensic drone flight.  Posted October 4, 2016
  2. U.S. civil litigation lawyer on using air photos in environmental litigation.  Posted November 18, 2015
  3. Fixed wing drones – another tool in forensic engineering investigation.  Posted November 4, 2015
  4. New forensic aerial photographic method proving extremely valuable.  Posted January 30, 2015
  5. A picture’s worth a 1000 words, possibly many 1000s in forensic engineering with a new aerial photographic technique.  Posted January 15, 2014 (See frames from a demonstration drone flight in this posting)

Managing the cost of civil litigation when experts are involved

Forensic investigation of the cause of a failure or accident in the built environment doesn’t always require an exhaustive investigation of conditions at a site.  And civil litigation doesn’t always need to bear the attendant higher costs.  Sometimes but not always.

There is a point at which the cost of the data obtained and the time required to get it outweigh the benefit of the data, the increased certainty of the opinion and the quicker resolution of a dispute.

The answer is early involvement of an expert in consultation with counsel.  And the two working together to identify the key technical issue(s) in a case.  It works best when counsel seeks to understand these issues early and rises to his responsibility to explain them to the judicial system. (Ref 1)

I’ve had some cases that settled in a heart beat after the investigation of a single, simple technical issue.  One case settled in four months after 11 years of litigation.  There have been other investigations that have been longer and more expensive.

There is a judgement call on the necessary level of investigation.  Should this technical issue be checked out or that evidence followed – as in the seemingly cast-in-stone edict, “Follow the evidence”?  The call is best made by an experienced expert and a suitably informed counsel.  The cost of civil litigation is often less when this is done wisely and well.

It also sometimes helps if counsel visits the site and “gets his hands dirty and mud on his boots” - sees what’s out there and some of the investigative work being done and why. (Refs 2, 3)  I know of one slip and fall accident that was cinched because counsel came to the site, sat down and watched me work.  In this case, carrying out two quite unusual tasks that carried the day.

Cutting costs can’t be done in a cavalier manner.  I’ve seen this happen too and the injured party likely get the short end of the stick in one case.  Litigation is expensive, and reliable, expert data costs money, but it can be managed.  It doesn’t always need to be exhaustive.

***

These thoughts came to mind a few days ago when I was reviewing the principles governing Phase II ESAs (environmental site assessments) as given in an ASTM standard. (Ref. 4) These environmental assessments have strict requirements.  I know, I’ve done them – but there are some “that do not … require an exhaustive assessment”.   When I read that in the standard, I was reminded: That’s the way it is in forensic engineering investigation.

References

  1. Principles governing communicating with testifying experts.  The Advocates’ Society, Ontario, June 2014.  Posted June 11, 2015
  2. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
  3. Counsel: Your case benefits when you visit the scene of a personal injury or engineering failure.  Posted April 30 , 2016
  4. ASTM E1903-11 Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process, ASTM International, West Conshahecken, PA, 2011

 

 

 

Where are the Advocate’s technical issues going?

What’s an expert to do?  Should he tell or no?  Should he make a point of telling the advocate where the technical issues are going if this might not be a good place for his case compared to where it’s at now?  Should he say if the initial hypothesis as to cause needs modifying or rejecting completely.  Would the expert be perceived as biased if he did this?

The expert serves the judicial system but he is retained by the advocate.  The system wants justice for all parties.  The advocate wants a win for his party.  These conflicting interests can cause problems for the expert.

I see this problem occasionally.  I thought of it when I posted last week’s blog and commented there about where the technical issues might be going. (Ref. 1)

Would an expert be seen as biased if he saw that the technical issues were changing and wanted to alert the advocate to their increasing lack of compatibility with his argument?  And if the expert keeps investigating, it’ll only increase the cost of the investigation to no avail to the advocate but still to the judicial system.

Frequent reporting in the spirit of updating an initial hypothesis is the answer, and relying on a technically, reasonably informed advocate to ask questions.  Even encouraging him/her to get like that.  I understand the system requires the advocate to be informed of the technical issues and be able to explain these to the system, so the structure’s in place to keep this problem in check.

Reference

  1. The cause of an oil pipeline leak is an easy call for a forensic expert.  Posted February 23, 2017

The cause of an oil pipeline leak is an easy call for a forensic expert

(I believe an oil pipeline leak is a good example of how easy it can be to initially figure out the cause of a failure.  Civil litigators and insurance claims consultants like to know early on where the technical issues in a case might be heading)

***

An oil pipeline has got to be one of the simplest structures in the built environment, “…a line of connected pipes that are used for carrying liquids and gases over a long distance”.  (Ref. 1)

The pipes are connected by welding the ends together.  The pipeline is often supported at the connections on simple foundations.  This would be the case in terrain underlain by permafrost – permanently frozen ground – or where it’s more economical to build above the ground rather than bury the pipeline.  Welding and building foundations are the two main tasks on-site in pipeline construction.

Such a simple, linear structure is susceptible to pressure to build it fast.  Fast work can be a threat to the quality of the welded connection and the foundations.

Pipeline planners and designers estimate cost in part on how fast it can be built.

Pipeline contractors make money by building it fast.  “Excavate the ground, construct the foundations, lift a length of pipe in place, weld the connection.  Next please.”

The adequacy of the ground to support foundations is investigated by engineers along the pipeline route at the design stage – but not at the location of every pipe connection.  Foundation soils vary even in the most uniform of natural deposits.  The soils will be weaker at some locations and stronger at others.  Too weak a soil will cause a foundation to subside and possibly over stress the welded connection and cause it to fail and leak – oil.

The adequacy of the welded connections and the foundations are inspected, ideally by an independent materials testing and inspection firm – but not likely at every connection.  A grossly inadequate weld while unlikely that is missed during inspection might leak oil regardless the adequacy of the foundation.  A less than adequate weld combined with the stress from a subsiding foundation might break and leak oil.  A low probability perhaps but still.

An initial hypothesis as to the cause of a leak would be easy for a forensic engineer.  S/he’s got three main choices for a simple structure like a pipeline:

  1. A poorly welded connection,
  2. A subsiding foundation over stressing a properly welded connection, or
  3. A subsiding foundation over stressing a poorly welded connection.

Depending on specific conditions at the failure site, the expert would pick one of the possibilities for their initial thought on the cause of the oil leak.

Reference

  1. Merriam-Webster, Dictionary 2017

Biased experts cured with a soak in the “hot tub”

Intentional and unintentional bias is a fact of life in forensic investigation and reporting, in life in general for that matter.  Fortunately, there is a solution to the problem and one that will benefit from formal rules governing experts, like Rule 55 in Nova Scotia, when the bias-solution comes to the Atlantic provinces.

The bias-problem was reported in a story in the National Post with the headline “Hired gun in a lab coast: How medical experts help car insurers fight accident victims”. (Ref. 1)  Judges in Ontario noted the bias in the investigation and reporting of some medical doctors on injuries from car accidents.  Also the money they earned from companies who were favoured in the medical reports.

The problem is not unique to the medical profession.  Bias exists in the work of those in different professions and vocations.  I’ve seen it in reports during my engineering work in the Atlantic provinces - blatant bias in one report recently.

The solution to the problem was also noted in the National Post.  It’s the “hot tub” method in which experts give their evidence concurrently.  It was developed in Australia and is getting good reviews in the UK.  It’s being looked at in the US and Canada.

An Australian judge, Justice Steven Rares, gives a detailed explanation of the method with 46 references. (Ref. 2)  The “hot tub” label is obvious on reading Rares’ paper.  The Australian courts have been acknowledged as having the most experience in this technique dating back to about 1985. (Ref. 2)

Briefly, the way it works: After each expert has prepared his or her evidence they confer in a pre-trial meeting, without lawyers.  During the meeting they prepare a joint report on the matters about which they agree and those on which they disagree, giving short reasons as to why they disagree. (Ref. 2)

At trial – in the unlikely event it goes that far - the experts meet again and each is asked to identify and explain the principal issues as they see them, and each is given the opportunity to comment and ask questions of the others. Counsel  then has the opportunity to examine the joint report and the experts’ comments on it. (Ref. 2)

There is resonance between this method and the requirements of the formal and strict rules governing experts and their reports. Well written reports by experts retained by opposing parties are a near perfect fit with the “hot tub” solution.

The growing bulk of the academic and legal papers on the topic seem to agree it’s a good idea. (Ref. 3)  However, there is a view by some that the formality of the new rules governing experts and their reports reduces the possibility of discussion amongst experts – key to the “hot tub” method. (Refs 2, 3)

I believe that problem will be overcome because most cases don’t go to trial - and even in the few that do, the solution involving experts’ reports will be made to work because it’s needed.  Well written expert reports and agreement amongst experts, as presented in a joint report, are essential to the successful and expedient resolution of disputes at all stages.

The ”hot tub” method is working well in reducing bias, saving court time and reducing civil litigation costs. (Refs 2, 3)  That fact will carry the day.

It’s being called for in Ontario where judges see a bias-problem.  It would work well in the Atlantic provinces.

For certain it’ll work well in the hard sciences like engineering where we are disposed to working together to figure things out and solve problems, without getting cranky with one another.

References

  1. Blackwell, Tom, “Hired gun in a lab coast – how medical experts help car insurers fight accident victims”, National Post, January 7, 2017, page A7
  2. Rares, Steven, Judge of the Federal Court of Australia and an additional Judge of the Supreme Court of the Australian Capital Territory, “Using the “Hot Tub” – How Concurrent Expert Evidence Aids Understanding Issues”, October 12, 2013. Google, January 14, 2017
  3. van Rhijn, Judy, Hot-tubbing experts – should lawyers like it?, Canadian Lawyer July 4, 2011

 

Where does civil litigation come from, and how much?

It comes from the built environment.  Exactly where in the environment and how problems can develop – and owners experience damage – is seen below in the answer to this question.  A simple, high-school-level multiplication at the end of this short blog - but first, a few easily understood comments on what’s involved in engineering..

Engineering at its best addresses the concerns and accommodates the interests of the parties involved at each stage in the life cycle of an engineered facility.

  1. Seeing a need
  2. Conceptualizing how to meet the need
  3. Planning
  4. Investigating
  5. Designing
  6. Constructing
  7. Inspecting
  8. Operating
  9. Maintaining
  10. Renovating
  11. Reconfiguring, and,
  12. Decommissioning

The goal of the engineering effort can be seen as satisfying the concerns of people at each of these stages, or at least dissatisfying them as little as possible.”  (Ref. 1)

***

I added Seeing a Need to this well thought-out list in Ref. 1 because you can’t conceptualize meeting a need until you recognize you’ve got one.

I added Investigating because it’s an important stage, particularly

  • for the part of a facility below the ground surface,
  • for earthworks of any kind,
  • for anything that impacts the environment and
  • when new materials and design and construction procedures are involved.

And I added Inspecting because it’s important to ensuring the facility is constructed according to the design, for the agreed cost.

***

Forensic engineering can be defined as applying engineering principles, knowledge and experience to problems and failures where legal liability may be decided in a legal forum.  However, much of the work of forensic engineering leads to the resolution of a problem without formal legal proceedings.” (after Ref. 1)

Failure can be defined as an unacceptable difference between an actual condition and the intended or reasonably anticipated condition of an engineered facility.  Failure may not involve a complete or even partial collapse.  It may involve a less catastrophic deficiency or performance problem such as unacceptable: (after Ref. 1)

  • potholes in the pavement,
  • foundation settlement,
  • structural movement and cracking,
  • earthworks, slope and retaining wall movement,
  • water and weather damage,
  • leaking roof,
  • environmental contamination,
  • structure and infra-structure maintenance,
  • repair of a problem, and,
  • mechanical and electrical equipment operation.”

One writer identified 209 ways a building can fail – and that was just in the part of the building above the ground surface. (Ref. 2)  A building can also fail in numerous ways below ground.  In fact, the part of the structure below ground – foundation, basement, utility pipes, drainage systems – is in many ways the most complex part to design and construct.  Not the most glamorous part, just the most complex.  Another writer identified numerous ways that a building’s basement and foundations can cause problems. (Ref. 3)

Contractors will tell you they are glad when they get out of the ground and start erecting the upper part of a structure.

A building is just one of the many 100s of different structures with their component parts that comprise the built environment – think about that, 1 of many 100s.  Look around next time you’re outside and count just the ones you see.

When can a structure fail in it’s life cycle - in the process from it’s inception and birth to it’s decommissioning at the end of it’s useful life?  At any of the 12 stages in the list above.

To answer the question, Where does civil litigation come from?  Count the places:

  • many 100s of different structures
  • multiplied by 100s of ways some can fail
  • multiplied by the 12 stages in an engineered facility’s life
  • multiplied by the different parties at each stage who might feel wronged and entitled to damages.

At it’s simplest, allowing two wronged parties at each stage, almost a quarter of a million ways that civil litigation can develop – 240,000.

I’m sure a similar calculation could be done for personal injury accidents in the built environment.  For example, the numerous slip, trip and fall accidents – likely more than the traffic accidents in the Atlantic provinces in 2016.

References

  1. Kardon, Joshua B., ed,, Guidelines for Forensic Engineering Practice, The American Society of Civil Engineers (ASCE), Reston, Virginia, 2012
  2. Nicastro, David H., ed., Failure Mechanisms in Building Construction, ASCE, Reston, Virginia, 1997
  3. The National Research Council of Canada, Performance Guidelines for Basement Envelope Systems and Materials, Final Research Report, April 2007

 

“A rose by any other name…”; Primers for lawyers

“…Lot of preparation beforehand – a lawyer just doesn’t walk into a court“.  That comment by Ron Pizzo, Pink Larkin, resonated with me during his talk at an APTLA conference in Halifax early last month.  I thought, “…Lot of forensic investigation beforehand – an expert just doesn’t render an opinion and write a report”.  The line in Romeo and Juliet came to mind, “A rose by any other name…” (Ref. 1)

(APTLA: Atlantic Provinces Trial Lawyers Association)

The title of Ron’s talk was ”Wrongful Dismissal Primer: What to Know When an Aggrieved Employee Walks into your Office.”  And the abstract: “What you need to know to quickly assess a case and the advice you should give a potential client during the initial meeting to set realistic expectations.” ”

I’m not a lawyer but Ron’s talk seemed to be a good primer.  He listed several tasks, issues and cases to consider in assessing the merits of a case.  I’m sure he was comprehensive to the extent possible in the time available.

Ron’s talk might be broadened to embrace an assessment of the merits of civil litigation cases in general, including those involving an expert.  Or his talk used as an inspiration.

I posted a blog on the role of a professional engineer – any expert for that matter – in counsel’s initial assessment of a civil case. (Ref. 2)  A “what you need to know” item from the technical point of view.  Included was a list of 18 tasks that an expert could do to help counsel assess merit.  There was some emphasis on identifying realistic expectations for both counsel and the potential client, particularly about the cost of civil litigation involving an expert.

In an initial meeting, a lawyer, in most areas of practice, is being asked by a person who feels wronged if they are entitled to damages.  For example, Ron’s aggrieved employee. Or in the case of the built environment, by a person, an owner, whose property was damaged or by a person who was injured in an accident.

In the case of property, the difficulty is that awards are dependent on the cause of the property damage or personal injury and the party (s) responsible.  For an aggrieved employee, Ron outlined the issues and questions on which a case is dependent - what’s involved in getting a “feel” for the merit of the case.

Experts also have experience, questions to ask and cases to go to, in their respective fields, that point to possible causes allowing them to help lawyers get a feel for a case.

For example, it’s well known in forensic engineering that many foundation failures are due to inadequate geotechnical investigation of the foundation soils before design and construction.  As well, engineering societies and various authors have published on the different ways structures can fail – total collapse or component malfunction - based on a review of the engineering literature. (Refs 3, 4 and 5)

A general primer would be a valuable resource - one co-authored by a legal expert and a technical expert, that helps civil litigation lawyers get a “feel” for a case and set realistic expectations for a potential client.  At the end of the day clients also need to know that a lawyer must prepare and an expert must investigate.

References

  1. Shakespeare, William, Romeo and Juliet, Act II Scene II
  2. The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012.  Updated May 21, 2014
  3. Nicastro, David H., editor, Failure Mechanisms in Building Construction, ASCE Press, American Society of Civil Engineers, 1997
  4. Guidelines for Failure Investigation, American Society of Civil Engineers, 1989
  5. Janney, Jack R., Guide to Investigation of Structural Failures, American Society of Civil Engineers, 1986