The role of a professional engineer assisting counsel prepare for Trial

This item is the last in a series on the role of a professional engineer in the different stages of civil litigation.  Other items in the series are listed below in the References.

The series is intended to help lawyers and their clients understand how they can use professional engineers in the resolution of disputes with technical issues.

The detailed tasks at this stage are listed below in blue.

Professional engineer’s role in preparing for 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 summatioins.

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 professional engineer’s role might consist of the following tasks:

(The tasks are rendered in bold and regular text to facilitate ease of reading)

  1. Review all technical documentation, electronic data, physical evidence, tangible exhibits, and possible demonstrative evidence on the case
  2. Review transcripts of the testimony at Discovery of lay and expert witnesses and assess relevance of new technical data
  3. Confer with counsel about their clear understanding of the evidence from the forensic engineering investigation, any new evidence arising from Discovery, the technical facts supported by the evidence, and the technical issues on which the claim, defence, counter claims, and cross claims are based
  4. Prepare supplementary reports and statements as required by counsel on new technical evidence arising from Discovery
  5. Assist counsel in narrowing the technical issues to be determined at trial
  6. Suggest technical lines of questioning to counsel to examine perceived mistakes in technical data and evidence, or flawed reasoning by opposing lay and expert witnesses.  Be objective in these suggestions
  7. Prepare exhibits, displays and demonstrative evidence for trial
  8. Review agreed document book to be familiar with the technical material
  9. Identify need to retain experts to help with any new technical matters arising from Discovery
  10. Review summaries of the discoveries and the documents
  11. Review technical witness statements and factual decisions
  12. Check that the technical issues, facts, and evidence have been completely and fully identified and properly summarized
  13. Review how technical witness statements and demonstrative aids are included in the trial brief
  14. Review detailed factual chronology and the references to the technical engineering evidence
  15. Check repair costs that may be offered or expected to receive if question of settlement may be reviewed at this stage
  16. Review the forensic engineering investigation file and prepare to testify at trial if required by counsel
  17. Engage in a mock examination with counsel, including direct and cross-examination in preparation for testifying at trial
  18. Assist in mock examination of technical witnesses in preparation for direct and cross-examination at trial
  19. Attend examination at trial of opposing expert and lay witnesses and audit their testimony (see Interesting Note below) 
  20. Alert counsel to possible new lines of questioning arising from the professional engineer’s monitoring at trial of the testimony of other witnesses, particularly technical experts.  Be objective in doing this
  21. Testify at trial as an expert witness on the engineering investigation carried out

(Interesting Note: I met with an RCMP officer recently in connection with a matter.  He mentioned in passing that during his cross-examination in his last three cases, the cross-examining counsel for the defence had a professional engineer monitoring his testimony – the RCMP officer’s, and advising counsel of possible additional lines of questioning)

References

  1. Steps in the civil litigation process, published August 28, 2012
  2. Steps in the forensic engineering investigative process, published October 26, 2012
  3. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
  4. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
  5. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
  6. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
  7. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
  8. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
  9. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
  10. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
  11. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012

 

The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference

This short item is one in a series on the role of a professional engineer assisting counsel at the different stages of civil litigation.  Others in the series are listed below in the References.

The series is intended to help lawyers and their clients understand how they can use professional engineers in the resolution of disputes with technical issues.

The detailed tasks at this stage are listed below in blue.

Trial Date Assignment Conference

Once the principal discoveries have 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 based on formal submissions by the parties setting out:

  • The issues,
  • How many witnesses they will have,
  • How many of these witnesses are experts,
  • 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,
  • Date by which expert reports are to be circulated,
  • Finish date,
  • Date for the trial readiness conference, and,
  • The date of the trial.

A professional engineer might assist counsel prepare for the Trial Date Assignment Conference in the following ways:

  1. Review forensic engineering investigation file and brief counsel on technical matters and issues relevant to the Trial Date Assignment Conference
  2. Advise counsel about time needed to finalize engineering report suitable for circulating as required by the judge
  3. Brief counsel on future availability for testifying at trial

References

  1. Steps in the civil litigation process, published August 28, 2012
  2. Steps in the forensic engineering investigation process, published October 26, 2012
  3. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
  4. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
  5. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
  6. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
  7. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
  8. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
  9. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
  10. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012

Japanese tunnel collapse; Uncertainty in the forensic engineering investigation of foundation failures

(This is one in a series of articles on the investigative methods used in forensic engineering)

Japanese tunnel collapse

The recent highway tunnel failure in Japan (Ref. 1) reminded me of the difficulty in reliably determining the physical, chemical, and mechanical properties of foundation soils and rocks.

These properties are used in design and construction and must be determined for all earth and earth-supported structures resting on or in the ground.  Earth is made up of soil, rock, and water.

Design and construction of the tunnel relied on the properties of the rock the tunnel was in.  The tunnel would be a rock structure, a structure formed of or in rock.

Media reports are that the concrete lining of the tunnel collapsed after the anchor bolts corroded and gave way - more specifically, possibly the heads of the bolts corroded and rusted.  The concrete lining held in the place by the failed anchor bolts would then fall to the floor of tunnel and the vehicles there.

Questions?

  1. Was the corrosiveness of the groundwater and/or the rock reliably determined along the entire length of the proposed tunnel alignment preparatory to tunnel design?  This chemical property of water and rock would be important to anchor bolt design.
  2. Was the degree of fracturing of the rock mass reliably determined in the event it is found that the bolts were not embedded deeply enough and some pulled out?

Unlikely, is the answer to both questions considering the nature of a tunnel.

Difficulty carrying out reliable engineering investigations

A forensic engineering investigation of the cause of a failure or a complete collapse, where the initial hypotheris is that the cause lies in the ground, would check if the physical, chemical, and mechanical properties were reliably determined.  This checking during a forensic engineering investigation would experience similar difficulties to that during a field investigation for original design purposes.

Cause of difficulty

The difficulty in reliably determining the physical, chemical, and mechanical properties of foundation soils and rocks is due to the heterogeneous nature of the ground beneath the structure.

Soil and rock are construction materials like the timber, concrete, and steel, for example, that are elsewhere in a structure.  The difference is that where concrete and steel are very uniform – the same throughout, soil and rock are very non-uniform – not the same throughout; heterogeneous.

The design properties of steel, for example, are selected from a book taken off a shelf in the design office.  The properties are very reliable.  The properties of foundation soils and rocks must be determined for each construction site by means of field and laboratory testing.  The properties as determined can be quite reliable or quite unreliable, and everywhere in between.

I learned a long time ago when practising in England to expect the unexpected when dealing with the ground.

A review of foundation failures in England found that many were due to inadequate determination of the properties of the foundation soils and rocks.

What reliability depends on

The reliability of the properties determined for foundation soils and rocks depends in part on:

  • the nature of the surface of a site – the topography,
  • the degree of heterogeneity of the foundation soils and rocki,
  • the nature of the structure,
  • the thoroughness of the field and laboratory testing,
  • local practice, and,
  • the experience of the professional engineer planning the field work, and interpreting the data.

Examples of variable reliability in engineering investigation

In the case of the tunnel in Japan, the surface of the construction site would be a mountain.  How do you reliability and thoroughly determine the properties of the rock along the alignment of a tunnel beneath a mountain?  There are methods but the costs are very high.  There are less costly methods but the reliability is much lower.

The rock is investigated in advance of the working face of the tunnel during construction.  But this doesn’t give as reliable data on the properties of the rock above and near the crown of the tunnel.

A highway is a linear structure like a tunnel.  The surface of the highway site is relatively level.  Determining reliable physical, chemical, and mechanical properties is easier by comparison to a tunnel.

Mountains are sometimes formed by the upthrusting of rock formations from below.  The mountains on the west coast of North America were formed that way.  This uplifting distorts and fractures the rock – introduces greater heterogeneity into the rock formation.  There is likely to be greater variability in the physical, chemical, and mechanical properties along the tunnel alignment because it is beneath a mountain.

The ground surface at construction sites in Truro and also on the valley floor of the Annapolis Valley in Nova Scotia are level but the foundation soils must be expected to be quite variable.  This because of how they were formed in water and beneath glaciers.

Nature of field testing and the inherent uncertainty

Field testing at construction sites to determine physical, chemical, and mechanical properties is characterized by testing at discrete points.  The judgement call for the professional engineer is how close or far apart those points should be.  Then interpreting and extrapolating the data from the test points to all the soil and rock inbetween the discrete points – the great mass of soil and rock compared to the very small amount of soil that is field tested.  Then assigning physical, chemical, and mechanical properties to these construction materials.

Because of the uncertainty inherent in this process, engineering reports include a section on the limitations of the engineering investigation.  The section states that if changed conditions are encountered during construction – changed with respect to those reported, the engineer who did the field tests must be contacted.  He is given an opportunity to review his interpretation and extrapolation of the data at the discrete field test points, and the properties he assigned to the mass of soil and rock for design purposes.

Forensic engineering investigation of foundation failures is burdened by this same inherent uncertainty.  In spite of this, a forensic investigation would be more thorough and reliable if for no other reason but to avoid making the same mistake twice

References

1. Globe and Mail, December 4, 2012.