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

 

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