The role of a professional engineer assisting counsel during Discovery

The professional engineer as an expert witness has an important role assisting counsel at the discovery stage of civil litigation.

Discovery is a process of obtaining information from the opposing parties and their lay and expert witnesses by asking questions.

This item, one in a series, identifies and lists tasks the engineer might carry out during preparation for the questioning.  Engineers basically assist by contributing the technical component of the questions.  They also testify at discovery as experts when called on.

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.

Information is obtained and the evidence reviewed by asking questions in the following ways:

  • Discoveries (ask questions)
  • Interrogatories (submit written questions)
  • Undertakings  (agree/undertake when asked 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 – delivered through counsel, which must be responded to within a stipulated period of time.  For example, Rule 55 of the Civil Procedure Rules of Nova Scotia.

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.

The role of the professional engineer at the discovery stage of the civil litigation process might involve the following:

  1. Review all technical documentation, electronic data, physical evidence, tangible exhibits, and possible demonstrative evidence on the case sworn to by the parties to the extent this information is known
  2. Confirm the technical evidence, facts, and opinions as presented by the parties
  3. Identify technical evidence and documentation that may exist and be discoverable but wasn’t noted in the Affidavit of Documents
  4. Confer with counsel about their clear understanding of the evidence from the forensic engineering investigation, the technical facts supported by the evidence, and the technical issues on which the claim, defence, and counter claims are based
  5. Identify relevant technical data and information that should be sought from parties involved in the litigation
  6. Identify engineering investigation that has not been carried out by the parties because of various constraints (e.g., omission, budget, time/schedule, site access)
  7. Suggest technical lines of questioning to counsel to obtain missing but relevant information, or to examine perceived technical mistakes or flawed reasoning by opposing lay and expert witnesses
  8. Review the forensic engineering investigation file and prepare to testify as an expert witness if presented by counsel
  9. Engage in a mock discovery with counsel, including direct and cross-examination of the professional engineer
  10. Attend and audit discovery and testimony of opposing experts and lay witnesses for technical content
  11. Assess relevance and explain technical testimony to counsel during the discovery proceedings
  12. Prepare for and testify as an expert witness on the forensic engineering investigation carried out by the professional engineer
  13. Review transcripts of the testimony of lay and expert witnesses and identify and assess relevance of unknown technical data
  14. Confer with counsel on the technical content of the transcripts
  15. Assist counsel in narrowing the technical issues to be determined 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.

The role of the professional engineering assisting counsel at this stage of the discovery could involve the following:

  1. Review reports by others and assist counsel prepare written technical questions not asked at discovery
  2. Prepare written technical questions for engineering experts arising from an audit of the discovery and testimony of expert and lay witnesses
  3. As the professional engineer being discovered, research answers to the interrogatories and provide these

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.

The role of a professional engineer at this final stage of the discovery is well defined:

  1. Research and submit answers to questions, and gather together and provide documents, data and physical evidence not provided during discovery  
  2. Review transcripts of proceedings and note any technical information that may affect the engineer’s opinion

At this stage in civil litigation, the parties have presented all information on their respective positions to the court.  All the facts and engineering data are known making it an opportune time for the parties to attempt resolution of their dispute by mediation or arbitration.

References

  1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, Thomson Carswell, 2004
  2. Steps in the civil litigation process; posted August 28, 2012
  3. The role of a professional engineer in counsel’s decision to take a case; posted, June 26, 2012
  4. The role of a professional engineer assisting counsel prepare a Notice of Claim; posted July 26, 2012
  5. The role of a professional engineer assisting counsel prepare a Statement of Claim; posted, September 11, 2012
  6. The role of a professional engineer assisting counsel prepare a Statement of Defence; posted, September 26, 2012
  7. The role of a professional engineer assisting counsel prepare an Affidavit of Documents; posted, October 4, 2012

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