Subtitled: Counsel, what part of “No” can’t you pronounce?
(This is an update of an item posted in 2012 – see Ref. 2, as part of a series on the role of a professional engineer assisting counsel in civil litigation – see Bibliography below)
We all must decline a case sometime, in engineering and in law, in the best interests of the injured party and ourselves. We don’t always do that – say “No” when it’s in order.
For certain, we would decline because we believe the party doesn’t have a case, or we don’t have time to handle.
But, we must also decline because the problem is outside our area of expertise. Or we don’t have sufficient expertise yet in an area we would like to practise. Including the expertise to project manager the case that would be argued by more experienced counsel or professional engineers.
I am investigating three failures and accidents now that were referred to me by two well experienced professional engineering colleagues who felt, on being contacted by counsel, that the problem was outside their area of expertise. They were correct in this regard and it was professional of them to recommend another.
I do not take cases where the failure or problem appears to involve mechanical or electrical engineering. Nor cases where a traffic accident has occurred involving a collision between two or more vehicles. I just don’t have qualifications or experience investigating and analysing the cause of these types of problems.
However, I would take a case where the traffic accident involves a structure on or near the highway. For example, the Rankin fatal motor vehicle accident that appeared to involve a pile of salt on the highway - a structure to an a engineer. Or a fatal step ladder accident that appeared to involve a defect in the step ladder – also a structure to an engineer.
I take cases that involve the failure of a structure or damage to a structure, particularly those cases involving the foundations, also cases involving environmental contamination, flooding, and drainage.
It’s important when recommending another professional engineer or lawyer that you have specific knowledge or experience of the person being recommended in the area of expertise required. Recommending someone carries considerable responsibility. There are some individuals and organizations that don’t recommend people in the event the recommended person doesn’t work out.
I’ve worked on three cases where I wondered about the experience of counsel in civil litigation. In two cases it seemed like open and shut cases for the plaintiffs but they lost. In one of these, relevant engineering investigative data, that had been reported to the plaintiff, did not seem to get presented in a timely manner to the defense, as noted by the judge. In a third case, the plaintiff was near the discovery stage when it was realized that relatively expensive engineering investigation was needed that couldn’t be justified by the possible award.
We must say, “No”, when we are evaluating whether or not to take a case if it’s outside our area of expertise in law or engineering, and only recommend another lawyer or engineer if we have reliable knowledge of our colleague’s expertise.
(I’ve made small changes to hopefully make it easier to read)
Civil litigation tentatively begins when counsel meets with a potential client. The purpose is to gather information to help him or her assess the merits of the case and decide if he should take it.
A professional engineer could have a role in this meeting, or in consultation shortly afterwards. This is particularly the case if the legal and technical issues are likely to be complex requiring extensive engineering investigation to support a reliable opinion.
Some cases shouldn’t go forward
I’ve seen cases that should never have gone forward. Not because of a lack of technical merit but because of the client’s limited financial resources to bear the cost of the forensic engineering investigation necessary to determine the cause of the problem. These would be costs learned about after a claim was filed and discoveries held – and only after a professional engineer was retained to investigate the technical issues.
Information counsel wants
During the meeting, counsel obtains information from the client’s description of the problem and the damages he believes he has incurred, documents provided by the client, knowledge of witnesses, answers to questions raised by the lawyer, the lawyer’s past experience of similar matters, and comments by an expert on the technical issues.
Expert can make or break a case
One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case. An expert can make or break a case and if thought to be necessary should be chosen carefully and retained early (Ref.1). Even if only retained briefly to support counsel’s assessment of merit, in the event counsel decides not to take the case.
If a professional engineer is not included in the meeting, then counsel might confer with one later during his review of the facts prior to making a decision about taking the case. The engineer would, of course, review the information from the meeting, particularly the documents, and identify the technical issues prior to counseling the lawyer.
The engineer can also provide very preliminary comment on the engineering investigation needed to address the technical issues and to formulate an opinion on the cause giving rise to them. The engineer would educate counsel by outlining some of the tasks that would need to be carried out during an investigation and the time to do these – factors that can have a significant impact on the cost of litigation.
Client’s ability to bear costs
If the technical issues are complex – and the engineer can certainly help determine that, the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs. The client’s ability to bear these costs is important information in counsel’s decision on taking the case. An engineer can have a role in assisting counsel make that decision.
Tasks a professional engineer can carry out in assisting counsel
Following are tasks that a professional engineer – or any expert for that matter, could carry out during or shortly after counsel’s first meeting with a potential client to assist counsel’s decision about taking the case. The list is highlighted in blue and bold to break up a long list of tasks and hopefully make the list easier to read – there’s no special significant to what is blue or bold. There are a lot of helpful suggestions for counsel in the following:
- Attend and audit the meeting for technical issues, or meet with counsel shortly afterwards
- Review client’s descriptions of the problem and the reasons for claiming damages
- Read available documents
- Review witness’ statements as soon as taken by counsel
- Begin identification of potential technical issues
- Begin identification of technical documents counsel to seek
- Familiarize counsel on the typical stages and tasks in a forensic engineering investigation, the fact of unexpected follow-up investigations, the fact that investigations can lead in unexpected directions, the time required, and the difficulty estimating costs
- Identify physical evidence, tangible exhibits and possible demonstrative evidence
- Brief counsel on parties that might be involved in the potential litigation and their relationship to the technical issues
- Provide information that would facilitate early settlement
- Note unfavourable evidence for the potential client’s claim
- Remind counsel that only one side of the story is known. The opponent’s story and documents could give rise to a small shift in the technical facts and alter the complexion of the claim
- Tentatively assess the technical merits of the case with respect to the potential parties
- Outline preliminary engineering investigation and the major tasks involved
- Speculate on follow-up investigations
- Identify specialists that may be required
- Speculate on the order of magnitude of investigative costs
- If counsel decides to take the case, and position letters are appropriate, ensure that demand letters, and responses, are based only on well-established technical facts and data as known at the time
- Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
- The role of a professional engineer in Counsel’s decision to take a case. Published June 26, 2012
- 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