The role of a professional engineer assisting counsel prepare a Statement of Defence

The Defendant’s counsel prepares a Statement of Defense that replies to each allegation made by the Plaintiff.  The Defendant may file counter-claims and also claims against third parties with the court.  The Statement of Defense sets out the facts and the legal grounds that the Defense is relying on in their reply to the Plaintiff and in their allegations against the Plaintiff and third parties.

The Statement of Defense is the third step in the Pleadings:

  • Notice of Claim
  • Statement of Claim
  • Statement of Defense
  • Affidavit

A professional engineer retained by the Defense might focus on the following in his or her forensic engineering investigations:

  • Review the technical evidence supporting the Plaintiff’s claims
  • Carry out engineering investigations to confirm or refute the Plaintiff’s investigations
  • Carry out engineering investigations of perceived wrongs and damages that could give rise to counter-claims and cross claims
  • Assess the technical strengths and weaknesses of all parties

Once the last of the Statements of Defense have been filed, including any amendments, – 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.

The role of a professional engineer retained by the Defense at this stage would be similar to that of a professional engineer retained by the Plaintiff:

  1. Visit and visually examine the site
  2. Review the technical facts given in support of the Plaintiff’s claim and the technical evidence supporting these facts
  3. Review available documentation and evidence of lay witnesses, and experts and specialists
  4. Identify and explain the technical issues in the allegations in the Statement of Claim
  5. Carry out engineering investigations to confirm or refute the thoroughness and reliability of the Plaintiff’s investigations and the evidence and facts arising from these investigations
  6. Assess the technical strengths and weaknesses of the Plaintiff’s case and for each party identified by the Plaintiff
  7. Identify the technical facts relevant to the Defense’s position and the evidence supporting these facts
  8. Assess if enough technical data is available for the Defense to respond to the Statement of Claim
  9. Assess the technical strengths and weaknesses of the Defense’s position
  10. Carry out engineering investigations for the Defense of perceived wrongs and damages that might give rise to counter claims and cross claims
  11. Evaluate preliminary design and costs of repair of the damaged structure
  12. Identify parties that could be involved in the engineering failure or accident that have not been named in the Statement of Claim, the Defense, or any counter claims and cross claims
  13. Review the Statement of Defense and counter claims, and response to Statement of Claim, for correct understanding and representation of the technical issues and facts 
  14. Prepare a report, on instruction of counsel, describing the forensic engineering investigations, the analysis of the data collected, the findings, the conclusions, and the opinions formed relevant to the Statement of Claim’s allegations, the Defense’s response, and counter claims and cross claims

References

  1. Steps in the civil litigation process.  Published August 28, 2012
  2. The role of a professional engineer in counsel’s decision to take a case.  Published June 26, 2012
  3. The role of a professional engineer assisting counsel prepare a Notice of Claim.  Published July 26, 2012
  4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed., 2004, Thompson Carswell
  5. ASCE Guidelines for Forensic Engineering Practice, 2003, American Society of Civil Engineers

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