How many different ways can data and evidence be analysed?

Imagine my interest on learning that there are at least four different ways of analysing data and evidence. A former RCMP police officer told me this. That was his job before he retired. He traveled all over the country and away doing it. Jim and I belong to the same Alpine ski club.

Jim was excited telling me this. It was obvious that he enjoyed his job, and did it well. I was excited too, and concerned that I didn’t even know there were four ways. But, cut me a little slack till I learn what’s involved in these four methods in the event there is a basic process and it’s reflected in what I do.

I analyse data collected during a forensic engineering investigation to determine the cause of an accident or a failure in the built or natural environment. I look at each piece of data and see if it indicates the cause of the incident. I then see if there is agreement among the different data as to cause, and the extent of the agreement.

My examination of each piece of data is based on observation. Also science, math and physic’s principles applicable to the design and construction of the accident or failure scene.

You will see a process in my forensic reports that looks like this:

  • What task did I do?
  • What data did I get from the task?
  • What cause was indicated by each piece of data?
  • What agreement is evident among the data as to cause?

A forensic engineering investigation will consist of a number of tasks, data from each, and, often, a single cause.

But not always a single cause – sometimes more than one presents as worthy of consideration. In cases and claims like this civil procedure rules, like Rule 55 in Nova Scotia, require a statement of analysis and reasoning as to why one cause was selected and each of the others rejected. This when the hired-guns are really nailed.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer and Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, March 28, 2024 ejorden@eastlink.ca)    

What annoyed me recently?

I was annoyed recently when I read on Google about the Observational Method in Geotechnical Engineering – that is, the engineering of the ground where everything is supported, or, the engineering of the natural environment. (Ref. 1)

I didn’t see any reference to the engineer or investigating expert getting his hands dirty and mud on his boots. (Ref. 2) Doing this while observing conditions on site and collecting data to design a structure or analyse the cause of a failure or accident.

It was the boots-on-the-ground aspect that was missing – conspicuous by its absence.

I saw lots of references to big, impressive structures like suspension bridges, multi-story buildings, dams, tunnels, coastal works and slope stability. But little or nothing about more humble structures like low rise buildings, suburban roads, sidewalks, retaining walls, and sign posts and towers.

I saw one research paper, out of literally dozens – like dozens – about the Observational Method in forensic engineering investigation. One.

I saw lots of theorizing on Dr. Google but not much real world stuff.

Yet, it’s the nuts and bolts in the built and natural environments that carry the day in design and construction. Also in the resolution of a dispute or the settlement of a claim. It’s this level – the guy/gal with dirty hands and muddy boots – that gets cross-examined and peer reviewed back and forth and up and down, not the theory up in the clouds.

Why isn’t this grassroots level and humble structures talked about in the Observational Method? The engineer in me was annoyed to say the least.

  1. Google Observational Method in Geotechnical Engineering and see for yourself. I did this earlier this week, possibly Dr. Google has since changed or updated.
  2. Billiam, John. One of my professors at the University of Birmingham, England noted that “Canadian engineers are noted for going on site and getting their hands dirty and mud on their boots”. I liked hearing that, and make certain I live up to it.

References

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, February 27, 2024 ejorden@eastlink.ca)    

How is evidence assessment in civil litigation the same as data analysis in forensic investigation? Or is it?

Both need to be thorough and objective, but the sameness ends there. Data analysis is based on numbers and the scientific method and is more precise. Evidence assessment is based on case law and legal principles – words – and is less precise. A hard analysis compared to a soft analysis.

Where does that leave the accident victim, the property owner, the claimant? It leaves them some wiggle room, or the butt of some. Think what lawyers – wordsmiths as they say – can do with wiggle room.

I’m not sure where these thoughts came from but they are relevant to recent blogs on the role observation plays in forensic investigation and the importance of peer review. (Refs 1 to 5) Observation – the soft underbelly of forensic investigation? (Ref. 6)

It’s interesting too that civil procedure rules governing experts, like Rule 55 in Nova Scotia, are prepared by the legal profession – the wordsmiths. Proponents of the soft analysis telling those of the hard analysis how to analyse their data and write their reports. Interesting.

But the Rule reminded me to keep my forensic report writing tight, including noting other possible causes of an incident and why they were dismissed. This echoes the scientific method in a big way – the hard analysis. I wonder if the wordsmiths realized this?

References

  1. One forensic observation does not a cause make. Posted July 18, 2023
  2. Observational Method: Example #1. Posted July 31, 2023
  3. Observational Method: Example #2. Posted August 29, 2023
  4. The science of peer review in forensic investigation. Posted November 30, 2023
  5. A mini application of the scientific method in a forensic engineering investigation. Posted December 31, 2023
  6. Google the Observational Method and learn about it at this level. For example, Google Observational Method in Geotechnical Engineering; a good example seeing as everything rests on the ground – like in Geo

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, February 20, 2024 ejorden@eastlink.ca)    

Does technology lead the law?

A lecturer in drone technology said so last evening, and I would agree in a heart beat. And I would also say that it’s a BIG lead in both civil litigation and insurance and getting bigger as we speak.

This quickly came to mind last evening when I attended an introductory lecture on drones by Dr. Ian MacVicar entitled Drones – Detectives, Deliverers, Deceivers, Spies, and Murderers. He outlined what he was going to talk about in the six, two hour lectures organized by SCANS (Seniors’ College Association of Nova Scotia). I was there as the one time guest of another student. The course is filled and over subscribed 🙁 so forget about getting in during this session.

I know that drone photography is out in front of law and insurance in forensic engineering investigation of failures and accidents in the built environment. No question about that. I don’t go on a site and investigate an issue without some drone video of the site – it has been the tie breaker on two recent cases. I’ve mentioned this in previous blogs. Usually the drone video is inexpensive for invaluable engineering data.

But I was taken aback by where drone photography has got to in the fiends covered by Dr. MacVicar’s planned lectures. Listen to the news and see how it’s being used in the wars in Europe these days. Go see how it was used for the first time in 1917 in WW1 and where it’s at now.

The lectures are so good you should consider sending a representative from your company and get up to speed, if the course is offered again. Not with the idea of becoming a tech-savvy drone photographer but to know what to look for in your expert’s report.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, January 31, 2024 ejorden@eastlink.ca)    

A mini application of the scientific method in a forensic engineering investigation

I chatted with a stranger sitting next to me at a concert recently. He told me about a concrete slab on his property that settled 10 cm in a few days after 10 years. The slab supported a small out-building. I don’t know the location of the property.

A vibratory roller was compacting layers of soil during construction of an eight (8) foot deep fill on the next lot. The chap attributed settlement of his concrete slab to the work on the adjacent property.

He filed a claim with his insurance company who had an engineer investigate the problem. I gather from the concert friend’s comments that the engineer’s investigation consisted of walking over the property and visually examining it. The insurance company denied the claim based on the engineer’s report.

I remember thinking at the time that examination of the building wall where it rests on the concrete slab would be helpful. If the slab was constructed level 10 years ago then recent settlement of 10 cm would distort the contact between the wall and the slab in some way and this would be visible.

If the slab was not constructed level years ago then the building wall would be constructed to rest on a sloping concrete slab which would also be evident during a visual examination. For example, the 2 by 4 wall studs would be longer at one end of the wall.

My concert companion also commented to suggest his lot was underlain by soft soils. Construction of a 8 foot deep fill next door suggests soft soils there as well.

Finally, vibratory rollers shake the ground, and not just directly below the roller but also beyond the roller to some extent. That’s how they compact soil and make it stronger and less compressible. Shaking the ground is accompanied by settlement of the soil surface.

So, what would application of the scientific method accomplish/do in this situation? We can go through the steps as referenced in a previous blog (Fig. 1) and listed below in the Appendix.

  1. The problem in this situation is confirming that the concrete slab did settle 10 cm recently and, if this is the case, why – the cause?
  2. Talk with the owner and learn about construction of the building. Talk with the adjacent lot owner and the contractor and learn about construction and compaction of the fill. Visually observe construction of the site, also the concrete slab and the building resting on it.
  3. If observations confirm that the slab has settled recently and a vibratory roller operated next door then the roller causing the slab to settle is a reasonable hypothesis.
  4. Survey and measure the layout of the site including the distance of the 8 foot deep fill from the building that settled. Measure construction of the building that settled and confirm the reported settlement. Check surficial geology maps for the type of soil underlying the site. Experiment: Excavate a test pit and confirm the type of soil. Re-enact construction activity at the site by measuring the vibration of the soil at different distances from a walk-behind plate compactor.
  5. Collect data: Note the data collected from each of these measurements and experiments.
  6. Analyse the data, the results: Note the cause of the building settlement as indicated by each measurement and experiment. Also where different data agree and reinforce cause and where data don’t agree. Identify additional measurements/experiments that could be carried out. For example, measure the vibration at distances from a vibratory roller similar to that used during construction and compaction of the 8 foot fill. Also measure the settlement of monitoring points at different distances from the vibratory roller. Analyse this data and how it agrees/disagrees with other data on cause.
  7. Conclusion: Note the probable cause of the building settling 10 cm based on the analysis – the vibratory roller. Also note other possible causes – none – and why these were dismissed.
  8. Form opinion: The vibration from the vibratory roller caused the building to settle 10 cm the same as it caused the 8 feet of soil to settle as it was being compacted.
  9. Write a detailed report on the measurements and experiments done during the mini scientific investigation, the data collected, analysis of this data, the conclusion drawn and the opinion arrived at. Do this, for example, according to guidelines for experts in Nova Scotia and also the excellent expert report writing manuals available for sale.
  10. Peer review: If a cost/benefit analysis justifies, get a peer review of your forensic investigation of whether or not compaction of the 8 foot fill caused the 10 cm settlement of the building. Get it done by a colleague rather than another. If you’re out on a limb because of an error – they sneak in at times – better that you learn from a colleague and get back off the limb, and fix things, rather than a stranger do the peer review and you fall to the ground.

References

  1. The science of peer review in forensic investigation. Posted November 30, 2023

Appendix

Steps in the Scientific Method

  1. Problem: The problem is determination of the cause of the failure or accident.
  2. Observation: Get briefed on what is known about the failure or accident. Read documents. Walk over the site and visually examine where the accident or failure occurred.
  3. Hypothesis: Note the possible cause of the incident based on the evidence from the briefing, reading the documents and visually examining the site of the failure or accident.
  4. Experiment: Identify investigations suggested by the possible cause. Investigations like a) the layout of the site, b) the size of the site and its components, c) maintenance of the site, and, d) activity at the site when the accident or failure happened. Re-enact the accident.
  5. Collect data: Note the data got from each of these investigations.
  6. Analyze results: Note the cause of the failure or accident as indicated by each piece of data. Note where there is agreement and disagreement amongst the data on cause. Identify additional investigations that could be carried out. Carry out these investigations and analyze the data.
  7. Conclusion: Note the probable cause of the accident or failure based on the analysis. Note other possible causes and the data supporting these, and why these causes were dismissed.
  8. Form opinion: Form and state opinion on the cause of the accident or failure.
  9. Report: Report in detail what was done during each step in the investigation according to the guidance of civil procedure rules like Rule 55 in Nova Scotia and manuals on expert report writing.
  10. Peer review: Review what was done during each step of the investigation and it’s conformance to the standard of practice and what a reasonable person would do.

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

The science of peer review in forensic investigation

A forensic investigation of a failure or accident in the built environment is the scientific method in action, like it is in many fields of study. (Ref. 1) It goes through the same systematic stepped process as the scientific method, or it should.

Peer review by a forensic expert’s colleagues – the last stage in a forensic investigation – checks that this has happened. In a sense, peer review is the scientific method in action again.

The following 10 steps in the scientific method are well known – it’s not rocket science. The actual tasks carried out at each step during a forensic investigation are less well known but easy to understand. For example, what’s simpler to understand in the following than “Reading documents” in Step #2?:

  1. Problem: The problem is determination of the cause of the failure or accident.
  2. Observation: Get briefed on what is known about the failure or accident. Read documents. Walk over the site and visually examine where the accident or failure occurred.
  3. Hypothesis: Note the possible cause of the incident based on the evidence from the briefing, reading the documents and visually examining the site of the failure or accident.
  4. Experiment: Identify investigations suggested by the possible cause. Investigations like a) the layout of the site, b) the size of the site and its components, c) maintenance of the site, and, d) activity at the site when the accident or failure happened. Re-enact the accident.
  5. Collect data: Note the data got from each of these investigations.
  6. Analyze results: Note the cause of the failure or accident as indicated by each piece of data. Note where there is agreement and disagreement amongst the data on cause. Identify additional investigations that could be carried out. Carry out these investigations and analyze the data.
  7. Conclusion: Note the probable cause of the accident or failure based on the analysis. Note other possible causes and the data supporting these, and why these causes were dismissed.
  8. Form opinion: Form and state opinion on the cause of the accident or failure.
  9. Report: Report in detail what was done during each step in the investigation according to the guidance of civil procedure rules like Rule 55 in Nova Scotia and manuals on expert report writing.
  10. Peer review: Review what was done during each step of the investigation and it’s conformance to the standard of practice and what a reasonable person would do.

***

I thought to blog on this topic – science in forensic investigation – when the extent of observation in forensic investigation kept coming to mind. Subjective observation compared to objective field and laboratory testing. (Refs 2 to 4) And how peer review ensures the forensic investigation including its subjective observations is properly carried out.

It was while researching this topic that I realized a forensic investigation and it’s peer review are both examples of the scientific method in action. The penny dropped again when I realized the simplicity of the scientific method – a bunch of simple steps. Others have seen this hence the wide application of the scientific method to the simplest of problems. (Ref. 1)

References

  1. Google “scientific method” and be surprised like I was at it’s wide and sometimes simple application.
  2. One forensic observation does not a cause make. Posted July 18, 2023
  3. Observational Method: Example #1 Posted July 31, 2023
  4. Observational Method: Example #2 Posted August 29, 2023

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada November 30, 2023 ejorden@eastlink.ca)    

Principles governing the cost control of dispute resolution and claim settlement involving experts

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

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

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

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

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

***

OVERVIEW

The total cost of dispute resolution or claim settlement includes the cost of an expert’s services.  Properly incorporating these costs into a claimant’s or party’s total costs is essential to good claim management.  This requires knowing about the services you’re buying – the nature and methods of forensic investigation and how these costs develop.

Principles are needed to guide a party managing these costs.  I concluded this after noticing that experts were sometimes retained months after a dispute arose or a claim made, occasionally years after. 

I also noticed that an investigation was sometimes stopped when the cost of the expert’s services exceeded the budget set by the party involved – a budget with a technical component set by a non-technical person.  I couldn’t help wondering if the dispute resolution or claim settlement, and the injured parties interests, were sometimes compromised as a result.

I identified the following seven (7) principles to help the parties to civil litigation, a dispute or insurance claim, manage their costs.  There is a comment on each.  I say identified  because the principles have always existed but sometimes overlooked.

PRINCIPLES 1, 2 and 3 are fundamental to cost management.  You can’t go wrong if you follow these three.

(There are also good reads in the References as cited in the Comments)

I think of a party as one or more of the following:

  1. Counsel and advocates
  2. Insurers
  3. Insurance claim managers, consultants and adjusters
  4. Property owners
  5. Architects, engineers, builders and contractors
  6. Victims of accidents and failures in the built environment
  7. Injured parties, in general, for whatever reason

***

For a long time in the Atlantic provinces, experts have played an important role in civil litigation, dispute resolution and insurance claim settlement.  You don’t hear about the majority of these issues because they involve small or medium-sized loses, failures and accidents.  They’re not catastrophic, breaking news.  Many are also less affluent. (Ref. 1)

But, affluent or not, they all require an expert to be thorough, reliable and objective even when investigating one, small technical issue.

It’s difficult to be thorough when you’re retained late in the process and impossible when your work is stopped mid-investigation.

A timely and reliable estimate of an expert’s costs, based on the forensic work s/he must do, is essential to good management – with informed input from the expert.  This is the case in civil litigation, for example, regardless of whether the file is taken by counsel on a fee or contingency basis.

How serious is the omission?  Less than good management results when the expert’s invoices start to come in threatening the budget that the expert had no part in setting, and the expert’s services are suddenly stopped.

For example, I’m certain stopped in one claim involving the disputed height of a feature in the landscape, to the detriment of any damages entitled the injured party.  A height argued back and forth and up and down by three opposing parties in three discovery documents, with no good evidence.  Yet a height quickly and easily got by an expert with simple, high school math.

And in another case involving a slip and fall accident that resulted in the injured party changing firms.  Fortunately, in another slip and fall accident counsel was on site to see and photograph the expert’s investigation and testing – and saved the day for the injured party when the forensic work was stopped by management because of cost.

And in still another when a case involving a head injury settled four months after an expert was retained and submitted a report on cause – 11 years after the case was taken.

Somewhat related, a confidential survey of remediation contractors for the National Research Council found that contaminated site remediation was costing more than it should, in many cases much more, for want of an expert – $35,000 billed instead of $5,000 incurred on one small cleanup according to a contractor. (Ref. 2)

It doesn’t have to be like this.  There’s enough guidance out there now to help a consultant or adjuster manage the cost of a claim, or counsel manage the cost of civil litigation. (Ref. 3)  Guidance that allows the expert to do his work thoroughly, reliably and objectively and serve the dispute resolution process properly.

This can be done while ensuring, as required by common law, that experts: (Ref. 4):

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

These requirements of experts are the same in all issues involving dispute resolution and claim settlement.  The great majority of experts know that they serve the process not the party, as found in a pilot study of 152 experts that have testified in Canada. (Ref. 5)

The requirements of common law also mean that an expert must engage on a fee basis rather than a contingency basis, and accounts kept up to date.

I realized that while there’s guidance in the literature, it needs to see the light of day.

I knew about the Principles Governing Communications With Testifying Experts developed by The Advocates Society, Ontario. (Ref. 1)

I identified the following Principles Governing the Cost Control of Dispute Resolution and Claim Settlement Involving Experts (the “Principles”) patterned on this document.  The Principles are intended to provide guidance in a similar way.

How did I identify the Principles?  For certain I was guided by the Principles Governing Communications with Testifying Experts.

But I also had insight from my practice in forensic civil engineering in the Atlantic provinces since the late 1980s.

As well, my blogging since 2012 on the nature and methods of forensic engineering was immensely helpful – including about 18 blogs on the cost of civil litigation involving experts. (Ref. 6)  You learn when you write.

Prior to my forensic work, I practiced civil engineering, specializing in geotechnical and foundation work, and often enough environmental site assessment and remediation.  My degrees were from the University of New Brunswick in Canada and the University of Birmingham in England. I worked in eastern, western and northern Canada, off-shore Nova Scotia, and in the Caribbean, the U.K. and Australia.  I saw a few failures and accidents during that time.

Prior to engineering, I studied land surveying for two years at the College of Geographic Sciences in Nova Scotia and practiced on Prince Edward  Island.

In addition, drafts of the Principles were read by colleagues in engineering and a civil litigation lawyer.  All offered good comments.  Those by the lawyer and a town planner were particularly helpful.  I tweak the Principles from time to time based on comments by readers.

The Principles are not intended to address the cost of all disputes and claims but to provide some guidance on managing those involving experts.  The Principles focus on:

  1. Early retention of an expert
  2. Frequent conferring with the expert
  3. The estimated scope of an expert’s services and costs
  4. The experts’s greater qualification for assessing technical costs
  5. Early incorporation of the expert’s costs into the dispute resolution process 
  6. Frequent updating of cost as evidence comes in
  7. The shock of the financial realities in dispute resolution (Refs 4 and 10)

As with the Principles Governing Communications with Testifying Experts, the hope is that by adhering to the following Principles, parties to a dispute or insurance claim will fulfill their duties to their clients and customers at a well managed cost without compromising the work of experts.

The PRINCIPLES

PRINCIPLE 1

A party should consult early with an expert about the cost of investigating a dispute, an insurance claim, a failure in the built environment or an accident.  In the case of civil litigation, preferably before the case is taken during the merit-assessment stage.

Comment

The emphasis in Principle 1 is on “consult early”.  This can’t be emphasized too greatly.  Too many cases are taken and disputes go forward only to find months or years after the fact – when an expert is finally consulted – that more investigation is needed than there is budget.

Managing the cost of an issue starts with an initial cost estimate, and the technical component of the cost can only be estimated by an expert.  Expert consultation at an early stage costs money but very little compared to the cost of a technically weak dispute or insurance claim found out too late.

Properly managing cost starts by identifying the different expenses contributing to the cost.  When one of the expenses is a personal service like an expert, engaging with the expert early is good cost management.

PRINCIPLE 2

A party should recognize that the expert is the person best qualified to estimate the cost of his or her services based on their assessment of the scope of an investigation of the technical issues.

Comment

The cost of an expert’s services can only be estimated by the expert, and only after he or she has estimated the scope of their work by carrying out tasks such as the following:

  1. Taking a briefing by the party on the failure or accident
  2. Reviewing available documentation
  3. Visually examining the site, either virtually or in person
  4. Identifying the technical issues in consultation with the party

Emphasis must be placed on estimated because not even the expert knows where his investigation will lead if he follows-the-evidence.

It helps if a party confers with the expert and gains some understanding of the investigative process and how costs develop.  This in a manner similar to how an expert is expected to have an understanding of the judicial process in a civil litigation matter.

PRINCIPLE 3 

A party should confer often with the expert during the investigation and get frequent cost-to-date and estimated cost-to-complete the expert’s work at key stages during the forensic investigation.  Then add these to the cost-to-date and cost-to-complete the party’s cost to get up-to-date total costs of the dispute resolution.  

Comment

This is a key and ongoing task in the cost control of civil litigation, and in dispute and claim resolution, in general.

Conform to this principle and you’ve got hard data for controlling your costs.  This is a fundamental principle in the well developed field of project management. (Ref. 3)

The scope of an expert’s investigation may change and be greater or less than initially assessed.  The importance of some conventional tasks may fade while unexpected follow-up tasks may need to be considered.

Care must be taken with undue focus on a budget.  There’s no question one needs to be set but it must not be perceived as a fixed price for which an expert agrees to do all that is necessary.

In civil litigation, for example, counsel and expert must each have some understanding of the other’s role to make it work.  Key stages in both the legal process and the forensic process are well known.

Also well known in project management is that the cost-to-complete a project is (1) very approximate at the beginning, (2) gets better as a project goes to completion and is (3) quite accurate towards the end.  This also applies to all dispute and claim resolution involving experts.

It doesn’t help, of course, that we occasionally have situations where estimating the cost to investigate a catastrophic failure or a terrible accident is sometimes easy, and estimating the cost to investigate a simple failure is sometimes difficult. (Ref. 7)

It helps to learn why it’s difficult for an expert to identify and estimate the cost of all the tasks in a forensic investigation.  It varies from easy, to difficult, to very difficult, to impossible. (Ref. 8)

It’s important for a party to have a plan for managing the cost of investigating the technical issues.  For “taking the measure” of the dispute resolution or claim settlement and the expert’s costs at key stages in the process.  This in the spirit of “If you can measure it you can manage it” that’s cast-in-stone in engineering. (Ref. 9)  Such a plan is reflected in Principle 3.

PRINCIPLE 4 

A party to a dispute involving experts must recognize that he is managing a potentially expensive process.

Comment

Remember in civil litigation that “…most clients are unfamiliar with the technical and procedural aspects of litigation.  They are also unfamiliar, and shocked, by the financial realities”. (Ref. 4)

“It’s necessary to fully explain the “facts of life” at an early stage using a delicate touch so that the client does not become completely discouraged from enforcing his rights.” (Ref. 4)

I believe David Stockwell’s comments speak in part to the fact that the cost of civil litigation, and all dispute and claim resolution, including that involving experts, can be controlled but only to a limited extent – part of the financial realities.

“A lawyer just doesn’t walk into court – a lot of preparation is necessary beforehand”. (Ref. 10)  Similarly, an expert just doesn’t write a report and render an opinion on the cause of a failure or accident in the built environment – a lot of investigation is sometimes necessary beforehand.  Some cases don’t go forward properly until the expert’s work is done, and some don’t go forward at all.

PRINCIPLE 5 

Counsel can manage costs better by retaining an expert according to the needs of the case, basically as a consulting expert or a testifying expert.

Comment

Civil Procedure Rules governing experts are resulting in more out-of-court resolution of disputes.  As a result, experts will be increasingly retained as consulting experts.  There are different ways this can be done with different costs. (Ref. 11)

There’s a big difference in expert costs between the least expensive where you retain an expert to (1) do a virtual visual site assessment (no site visit and walk-over survey) (Refs 12 and 13) or to (2) peer review the work of another and report verbally – more expensive but good insurance. 

To the most expensive where you retain an expert to (1) carry out a detailed forensic investigation, (2) collect data (3) analyse data, (4) draw conclusions, (5) formulate an opinion and (6) write and submit a report compliant with the Rules.

I must say it again, getting an expert to do a virtual visual site assessment at the beginning of a forensic investigation is the least expensive way of retaining an expert.  And often enough, such an assessment shows where the forensic investigation is heading giving good reason to stop and agree a resolution.

There are differences between the cost of a verbal report and a written report at any stage of an investigative.  There are also differences between a factual report when the expert gives the data only, and an interpretative report when the expert analyses the data and gives the analysis as well.

The “hot-tub” method of resolving differences between expert’s findings and opinions is another cost effective way of working with consulting experts. (Refs 14, 15 and 16)  Experts for the different parties in a dispute or claim (1) meet with their different reports, (2) discuss these, (3) resolve any differences where possible and (4) agree a single report on the matter that includes noting any differences.

PRINCIPLE 6 

A party should confer with the expert to understand the technical issues and help identify the key one(s) that must be investigated.

Comment

Start this process – it could be ongoing as investigative data comes in and the technical issues change – as soon as the expert has been briefed on the dispute and had a chance to assess an initial scope of investigation.  There will be good control of an expert’s costs if only one or two technical issues must be investigated compared to several.

In civil litigation, for example, cost is well managed when an expert has some understanding of the judicial process and counsel is similarly informed about the forensic investigative process – and they talk often about the relevant technical issues.  This understanding serves all the Principles well.

PRINCIPLE 7

Beware the tyranny of the bottom line – the effect of undue focus on the worth of the file to the firm on the thoroughness, reliability and objectivity of an expert’s work and also on any damages due the injured party. (Ref. 17)

Comment

A firm must make money else there won’t be someone there to represent the interests of the injured party.  But care must be taken that a balance is struck that is consistent with good dispute and claim-resolution processes and forensic practice, and the appropriate interests of the injured party.

References

  1. The Advocates Society, Principles Governing Communications With Testifying Experts, Ontario June 2014
  2. Jorden, Eric E., How to Reduce Oil Spill Damage Claims; Early Study Results, Atlantic Claims Journal, The Official Journal of the Insurance Claims Association of Nova Scotia, November 12, Winter 2002
  3. Kerzner, PhD, Harold, Project Management; a Systems Approach to Planning, Scheduling and Controlling, 8th ed, 2003, John Wiley and Sons, Inc., Hoboken, New Jersey
  4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
  5. Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018
  6. A Bundle of Blogs: How to Manage the Cost of Civil Litigation Involving Experts.  Posted August 31, 2017
  7. (Fairly easy) estimating the investigative cost of a catastrophic engineering failure. Posted August 13, 2013
  8. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2013
  9. “If you measure it you can manage it” – and do thorough forensic engineering, and cost effective civil litigation.  Posted June 18, 2015
  10. “A rose by any other name …”, Primers for lawyers.  Posted December 19, 2016 (Note comment by Ron Rizzo, Pink Larkin, Lawyers, Halifax)
  11. How to retain an expert in a cost effective way.  Posted November  30, 2018
  12. What can you get from virtual visual site assessment about the cause of leaning retaining wall?  Posted November 13, 2020
  13. A Bundle of Blogs: On using visual site assessment in forensic investigation.  Posted January 25, 2021
  14. “Hot tubing” experts reduce the cost of civil litigation and ensure objectivity.  Posted March 31, 2018
  15. Biased experts cured with a soak in the “hot-tub”. Posted January ???, 2017
  16. Corbin, Ruth M., The Hot-tub Alternative to Adversarial Expert Evidence, The Advocates Journal, Spring, 2014
  17. Professional ethics and the tyranny of the bottom line.  Update. Posted October 11, 2012

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada July 30, 2019 ejorden@eastlink.ca)    

(Updated by Eric E. Jorden, M.Sc., P.Eng., September 24, 2020, March 18, 2021, December 30, 2021 and October 28, 2023)

How do you cross-examine a hired gun who is wearing the iron ring?

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

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

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

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

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

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

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

References

  1. Merriam-Webster Dictionary 2023
  2. Dr. Google, The Ritual of the Calling of an Engineer
  3. Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018

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

Appendix

Ritual of the Calling of an Engineer

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

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

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

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

New forensic technique: Sit, look and think

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

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

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

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

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

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

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

Your eye-glazing education

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

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

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

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

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

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

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

***

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

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

References

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

Appendix

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

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

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

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

***

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

***

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

***

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

***

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