Professional engineers and other experts provide better services to civil litigation lawyers, the judge and the jury when they have some understanding of the civil litigation process.
Counsel, in particular, benefits when they retain an expert who is well informed about the process and their role in it. Many experts are limited in this knowledge. I know I was when I started practicing forensic engineering a number of years ago.
Expert witnesses play an important role in modern litigation (Ref. Stockwood, Q.C.). The educational component of the contribution engineers provide to the civil litigation process is invaluable (Dunphy, Q.C.). Experts fulfill this role better when they understand the process.
The purpose of this posting is to enlighten experts on the nature of the civil litigation process. More detailed information can be had from David Stockwood’s easily read text, Civil Litigation, 5th edition. Every expert should be given a copy of this text by retaining counsel.
Because of the sequential nature of the process, it is possible for an expert witness to start serving at almost any point during the process. But, of course, beneficial to all concerned to be commissioned at the start of a lawsuit. Joining the proceedings after they have begun requires the expert to “catch up” (ASCE Guidelines). And risks counsel finding himself “out on a limb” with a weak case technically.
The following is what I’ve come to understand about the civil litigation process after a literature and internet search and conferring with acquaintances in law. There is some comment in the following item on the role of professional engineers at different stages in civil litigation. I added these comments to provide a little technical context.
The civil litigation process involves the following main steps:
- Pre-Civil Litigation
- Counsel’s First Meeting With Client
- Pleadings (Notice of Claim, Statement of Claim, Statement of Defense, Affidavit of Documents)
- Alternate Dispute Resolution (ADR) (Negotiation, Mediation, Arbitration)
- Settlement Conference
- Trial Date Assignment Conference
1. Pre-Civil Litigation
This, in a sense, is the first step in the litigation process – trying to avoid a lawsuit.
All reasonable efforts are made at this stage to resolve a dispute with someone. This would include talking with them and sending letters. Counsel may be retained who would send letters as well.
If, in spite of the letters, the person who believes their property has been damaged, or believes they have been injured through negligence, if they still have not come to an agreement to resolve the conflict then the next step can be taken and a lawyer consulted and litigation possibly begun.
At this stage, professional engineers occasionally receive enquiring telephone calls in which a dispute is described and the engineer’s comments sought on the technical issues in the problem.
2. Counsel’s First Meeting With Client
The purpose of the lawyer and the client’s first meeting is so counsel can gather information to help him assess the merits of the case and decide if he should take it. The lawyer will also be representing his firm to the client during the meeting.
In meeting with the client the lawyer obtains information from:
- the client’s description of the problem and the damages the client believes he has incurred,
- documents provided by the client,
- knowledge of witnesses,
- answers to questions raised by the lawyer, and
- the lawyer’s past experience of similar matters.
One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case. An expert can make or break a case (Stockwood, Q.C.) and if thought to be necessary should be chosen carefully and retained early – even if only briefly in the event counsel decides not to take the case.
If the technical issues are complex – and a professional engineer can certainly help determine these issues, their complexity, and an order of magnitude of investigative costs – the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs. The client’s ability to bear these costs is important information in counsel’s decision on whether or not to take the case.
If the lawyer does decide to take the case, the next four steps in the civil litigation process are collectively known as the Pleadings – the Notice of Claim, the Statement of Claim, the Statement of Defense, and the Affidavit of Documents..
3. Notice of Claim
Civil litigation officially begins with the lawyer preparing and filing a Notice of Claim, a document that introduces the litigation. It describes the parties and the fact that the plaintiff is starting a legal action in court against a defendant or a group of defendants. The Notice of Claim is typically attached to the Statement of Claim, the documents filed with the court, and then served on the defendants.
A professional engineer could have a particularly critical role at this stage in litigation. The engineer could contribute to counsel’s assessment of the strength of a case and whether or not to actually begin a lawsuit by filing a Notice of Claim.
4. Statement of Claim
The Statement of Claim is more particular. It is a document that further describes the parties and defines their relationship(s) with each other. It is a listing of the facts both legal and technical. In construction and engineering claims, the parties oftentimes have a formal contract. In general negligence claims, the parties are often in proximity such that one owes the other a legal duty – to do or not do something.
Counsel sets out the disputed issues and the claims the wronged party, the plaintiff, is making against the defendant. The claims would include, for example, the relief sought – what the plaintiff wants the court to award. This can be very general, such as claiming damages, interest and costs, and does not usually state exact dollar figures.
The Statement of Claim is served on the defendant by the plaintiff, typically through a process server who is engaged to personally hand-deliver the document to the defendant. The process server swears an affidavit that this was done.
5. Statement of Defense
The defendant’s lawyer prepares a Statement of Defense that replies to each claim and allegation made by the plaintiff. The defendant may file counter-claims and also claims against third parties with the court. The document sets out the legal and technical facts and the legal grounds that the defense is relying on in their reply to the plaintiff and in their claims and allegations against the plaintiff and third parties.
The role of a professional engineer retained by the defence at this stage would be similar to that of a professional engineer for the plaintiff:
Amendments to both the Statement of Claim and the Statement of Defence may be issued by the respective parties after their initial claims are made.
Once the last of the Statements of Claim and Defence and amendments have been filed – one for each party, the pleadings are said to be closed.
The parties involved in the dispute may now exchange informal letters to try and come to an agreement and settle their differences before proceeding with a number of other steps. In a sense, the clock starts ticking at this point in the countdown to going to trial.
6. Affidavit of Documents
If the matter is not settled, the next step is disclosure of each party’s relevant documents. This is done by means of an Affidavit of Documents that all parties prepare, swear, serve and file with the court. A party must produce in its affidavit all documents and electronic information it has in its possession or control relevant to the matters in issue.
Note: Ideally, all forensic engineering investigations of the cause of the problem would be complete by this stage. These would be the separate investigations commissioned by the different parties to the dispute. Some would be quite simple like reviewing the work of other engineers. Other investigations might be quite complex like determining the cause of the problem that initiated the claim for damages in the first place. The resulting technical data would have provided the basis for well informed and well thought out pleadings.
Discovery, in general, is a step in the civil litigation process whereby information is obtained from the opposing parties or other witnesses.
At the discovery stage all engineering investigation is complete, all evidence, engineering data, and testimony that any party may offer at trial is known and can be fully examined by all other parties. The cause of the engineering failure, poor structural performance, or personal injury/fatal accident has been determined.
By reviewing the total body of evidence, the parties and their counsel are able to assess the strength of their respective positions if the action proceeds to trial. This review and assessment is carried out in three ways:
- Discoveries (ask questions)
- Interrogatories (submit written questions)
- Undertakings (agree/undertake to provide information, data and physical evidence later)
Prior to discovery in some jurisdictions, questions can be asked of an expert in writing by opposing parties. In Nova Scotia this is Rule 55 of the Civil Procedure Rules. These questions are delivered through counsel to the expert and must be responded to within a stipulated period of time. This procedure was developed to limit the discovery of experts.
Discoveries are oral question-and-answer sessions under oath where each party’s counsel poses detailed questions to the other party’s witness(s), including engineering experts, about the opinions and testimony they will offer at trial. A discovery is formal and similar to trial except it is not held in a court before a judge. The sessions are recorded by a court reporter who transcribes the proceedings which can be used later at trial.
Interrogatories are written questions from opposing parties to engineering experts by agreement which were not asked at discovery. The questions must be answered within a prescribed period of time.
Undertakings are agreements by the engineering expert who is answering questions to provide answers later or copies of documents or other material. This would be information that the engineer could not readily provide to the opposing party at the time. The information may consist of paper documents, electronic data and physical evidence. The engineer undertakes to provide the information within an agreed period of time.
8. Alternate Dispute Resolution (ADR)
ADR is a step that can be carried out at any stage in civil litigation – even before an action is filed. It’s a way of resolving disputes without going to court. In some areas, over 90% of lawsuits involving the built environment settle before going to trial.
Once an action is commenced, ADR can still occur at any point but is mainly used after document production and discoveries have taken place. At that point, each side is more fully aware of the other side’s case and has more information to assess the merits of the case, the strengths and weaknesses for both parties, and the likely outcome if proceeding through to trial. As such, ADR becomes relevant as the parties know better where each side stands.
There are different forms of ADR but the following are common and particularly relevant to civil litigation.
An engineering expert’s services are generally the same regardless of the ADR method selected by the client.
In Negotiation, participation is voluntary and there is usually no third party who facilitates the process or suggests a solution.
If an individual or a firm has a disagreement with another they may get together to discuss the problem and reach a mutual agreement. This way the parties can work out a solution that best meets the needs and interests of all parties.
In some cases individual parties may also prefer to hire a lawyer or a counselor who has the expertise to help a firm to negotiate or who can negotiate on behalf of the firm.
In Mediation, there is a trained, neutral third party, a mediator, who facilitates the resolution process (and may even suggest a solution) but does not impose a solution on the parties, unlike judges. Mediation often leads to resolutions that are tailored to the needs of all parties. The process is informal and completely confidential. As a result parties may speak more openly than in court.
In Arbitration, participation is typically voluntary and there is a third party who, as a private judge, imposes a resolution. At an arbitration hearing, a party to a dispute may have a representative speak on their behalf.
Arbitration may occur when parties have a dispute that they cannot resolve themselves and agree to refer the matter to arbitrators. Arbitration can also occur because parties to contracts agree that any future dispute concerning an agreement will be resolved by arbitration.
Arbitrators are often people who are experts in a specific area of the law or a particular industry, for example, the professions, pharmacy and engineering.
The arbitrator makes a decision based on the facts, any contracts between the parties in dispute, and the applicable laws. The arbitrator will explain how the decision was reached.
If the applicable law allows, parties can decide in advance whether the arbitrator’s decision will be final and binding or whether it can be submitted to a court for review if a party disagrees with the decision.
9. Settlement Conference
If ADR is not tried or is unsuccessful then lawyers for the parties meet and confer with a judge to decide if a settlement is possible with his assistance. By this step in the civil litigation process the parties will be ready to go to trial. They will have the documents that they will be relying on, reports from professional engineers and other experts, and information from discovery.
The lawyers, in advance of the Settlement Conference, send the judge a brief summary of their arguments and any relevant documents.
At the conference the judge will listen to the lawyers and try to achieve a settlement. The judge will sometimes give an opinion on how they would decide the case if they heard it at trial. However, the conference judge cannot force a settlement and would not officiate at the trial because of their role in the settlement conference.
10. Trial Date Assignment Conference
Once the discovery has taken place, any party can ask for a trial date. This is done with a formal notice to the court for a Trial Date Assignment Conference.
These conferences are predicated on formal submissions by the parties setting out:
- how many witnesses they will have,
- how many of these witnesses are experts,
- the issues,
- the general subject matter to which each witness will speak,
- how long the trial will take and,
- whether the trial will be judge alone or judge and jury.
The lawyers for each party attend in front of a judge during the Date Assignment Conference or confer over the telephone. The parties to the action do not usually take part in the conference.
At the conference, the court sets a number of applicable dates:
- the date by which all discoveries are to be completed,
- the date by which expert reports are to be circulated,
- the finish date,
- the date for the trial readiness conference and,
- the date of the trial.
When lawsuits occasionally reach this stage, the role of the professional engineer at trial is similar to that during discovery. However, while discovery testimony can focus on intricate detail, trial testimony generally addresses key issues and themes.
The procedure at trial consists of a number of question-and-answer sessions on the evidence and witness testimony, similar to those during discovery, followed by closing arguments or summations. The judge may ask questions at any time during the trial.
At the end of the trial in civil litigation, a judge studies the evidence and testimony, makes findings and arrives at a decision. Decisions typically are issued later by the judge rather than from the bench and are given in writing.
- The civil litigation process – an overview. Heydary Hamilton, Ontario www.heydary.com
- ASCE Guidelines for Failure Investigation 1989
- ASCE Guidelines for Forensic Engineering Practice 2003
- P.E.I. legal information, www.legalinfo.org Going to Court: Civil Trial Procedure
- Community Legal Information Association of Prince Edward Island, Inc. ISBN 978-1-894267-51-9 2003
- Personal communication, 2011, Gavin Giles Q.C., McInnes Cooper, Halifax
- Personal communication, 2011, Michael Dunphy Q.C. and Ashley Dunn, Cox Palmer, Halifax
- Personal communication, 2011, Jean McKenna, Partner, Ritch Durnford, Halifax
- Walker, Janet, gen. ed., Civil Litigation, 6th edition, 2005, Emond Montgomery Publications Ltd., Toronto
- Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th edition, 2004, Thomson Carswell, Toronto
- Flowcharts summarizing the processes under the Rules of Civil Procedure, Ontario, January 1, 2010 (Google)