(The update includes a case history illustrating the importance of a preliminary estimate of engineering invesigative costs before filing a Statement of Claim. A bibliography lists all the items published last year in “The role of ….” series. This item was originally published on September 11, 2012)
Preparing and filing a Statement of Claim with the court – typically along with the Notice of Claim, is the second of four steps collectively known as the Pleadings in the civil litigation process.
A professional engineer or other expert can be particularly valuable at this stage. Our forensic engineering investigations provide the evidence that establishes the technical facts and identifies the technical issues on which a claim for damages in the built environment is based.
(Tasks by a professional engineer assisting Counsel are listed below in blue text)
A preliminary estimate of forensic engineering investigative costs by the professional engineer might be particularly valuable at this time. See the following case:
Case; Wet Basement: This case illustrates the importance of planning and estimating the cost of an engineering investigation of the cause of a failure before preparing and filing a Statement of Claim. An important question is whether or not a claim for damages will cover the estimated investigative costs. An argument can also be made for carrying out some preliminary engineering investigation to learn if there is likely to be a basis for a claim in the first place.
I was retained by Counsel to investigate the cause of a wet basement found shortly after the client purchased the property. A visual inspection of the property established the strong possibility that the cause would support a claim. However, the certainty of an opinion based on a visual, somewhart subjective inspection would be much less than an opinion based on objective measurements and tests in the field.
The field tests were estimated to cost several thousands of dollars excluding engineering analysis and reporting. In additon, there’s always a possible need for follow-up investigations in cases like this. Counsel and client decided not to carry out the field tests because of the costs. I do not know if the claim was pursued based on my visusl assessment and preliminary opinion.
We can also evaluate the technical content of the Statement of Defence and the technical strengths and weaknesses of the defence’s response to the plaintiff’s claims.
The following assumes the early involvement of a professional engineer to ensure a Statement of Claim is technically well founded and cost effective. Early involvement avoids the engineer or expert having to play catch up, and counsel finding himself out on a limb with a Statement of Claim that is not as technically complete and as well founded as it might have been.
The role of a professional engineer during the different steps in the civil litigation process was described in a number of postings last year - see the following references and bibliography.
- Notice of Claim
- Statement of Claim
- Statement of Defense
- Affidavit of Documents
The Statement of Claim is more particular than the Notice of Claim. It is a document that further describes the parties and defines their relationship(s) with each other. The Statement of Claim is a listing of the facts. 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 for the plaintiff prepares a Statement of Claim that 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, costs, and interest. It 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 person delivering the document swears an affidavit that this was done.
A professional engineer can assist counsel in the following ways during preparation of a Statement of Claim (the list of tasks are shown in regular and bold text to make them easier to read) :
- Review narrative from the complainant for technical evidence
- Review available evidence of lay witnesses, and other experts and specialists
- Complete the engineering investigation of the cause of the failure or accident, the technical issues and questions identified by counsel, and any follow-up investigations found to be necessary. (Some preliminary engineering investigations during earlier steps in the civil litigation process would have alerted counsel as to the direction the engineering investigation seemed to be leading with respect to counsel’s interests)
- Analyse the data gathered during the investigations and establish the cause of the failure or the accident
- Document the reasoning leading to the identification of the cause
- Define the technical issues between the parties as established during the investigations
- Identify the technical facts relevant to the cause of the failure or accident
- Identify the evidence supporting the facts
- Review the Statement of Claim and confirm the correct understanding of the technical facts and issues in the claim the plaintiff is making against the defendant
- Identify parties that could be involved in the engineering failure or accident that have not been named in the Statement of Claim
- Prepare preliminary design of repair of the damaged structure
- Prepare preliminary estimate of the cost of repair
- Prepare a report on the instruction of counsel describing the investigations, the data gathered, the analysis and reasoning, the findings, the conclusions, and the opinion formed
- Review the Statement of Defense, counter claims, and cross claims – and counsel’s response to these statements, and ensure correct understanding of technical facts and issues
- Assess the technical strengths and weaknesses of the case for the defense, the counter claims and cross claims
- Steps in the civil litigation process. Published August 28, 2012
- The role of a professional engineer in counsel’s decision to take a case. Published June 26, 2012
- The role of a professional engineer assisting counsel prepare a Notice of Claim. Published July 26, 2012
- Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed., 2004, Thompson Carswell
- ASCE Guidelines for Forensic Engineering Practice, 2003, American Society of Civil Engineers
- What is forensic engineering?, published, November 20, 2012
- Writing forensic engineering reports, published, November 6, 2012
- Steps in the civil litigation process, published, August 28, 2012
- Steps in the forensic engineering investigative process, published October 26, 2012
- The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
- The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
- The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
- The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
- The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
- The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
- The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
- The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
- 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 Trial, published, December 19, 2012
- Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: firstname.lastname@example.org, email@example.com