Toronto Mayor Rob Ford and forensic engineering

I was struck recently by the similarity between investigative journalism and a forensic engineer investigating the standard of practice existing when a structure was designed and constructed.  Also the similarity in the relief felt by both the journalists and the forensic engineer when the investigations are complete.

This occurred to me last Saturday when I read the report in the Globe and Mail about the Globe’s exhaustive, 18 month investigation of the Ford family. (Ref. 1)  I was also checking and reviewing guidelines on the weekend for researching the standard of care existing at the time a failed structure was originally designed and constructed.  This is a forensic engineering method of investigation.

The Globe reported how carefully and thoroughly they carried out their investigations – as they must do, and the efforts to which they went to corroborate their findings.  I can imagine the reporters being sent out “just one more time” to do one more interview, to follow up more lead, to get one more corroboration, and how relieved they were when the results of their investigation were finally published.  “Phew, let’s get onto something else now”

It’s not too much different when a forensic engineer must identify the standard of practice guiding the design and construction engineers for the structure that failed some years after it was built.  Or the structure where a person had an accident years later.

We interview architects, professional engineers and specifiers practicing in the area at the time to determine the standards they follow.  We also identify guidelines and codes existing then and the sources of these, and assess how representative the sources are of the industry.

If there is wide variance in what we find, we speak with more architects, professional engineers and specifiers, identify more guidelines and codes, and assess more sources until we feel satisfied we know what the average is. (Ref. 2, 3, and 4)

Sometimes it takes a lot of e-mails and telephone calls before we get satisfactory corroboration and know the average practice.  I had a Eureka..!! moment three days ago when a source of industry guidelines in Canada in a matter I was investigating was confirmed considerably as widely followed.  Until then I was getting a good understanding of practice in the industry at the time but the ’average’ wasn’t clear.  Needless to say, I was relieved to see a light at the end of the tunnel like the journalists must have been relieved to see the results of their investigation finally published.

References

  1. The Globe and Mail, Saturday, May 25, 2013
  2. Association of Soil and Foundation Engineering (ASFE), Expert: A guide to forensic engineering and service as an expert witness, 1985
  3. Ratay, Robert T., Forensic structural engineering handbook, Chap. 7, Standard of Care, McGraw Hill, 2000
  4. American Society of Civil Engineers (ASCE), Lewis, Gary L, ed., Guidelines for forensic engineering practice, 2003

New civil procedure rules will result in the writing of better expert reports

(This item is an update of a posting on much the same topic on August 21, 2012.  I elaborate some of the themes developed previously – notably the need for better report writing and the resources available to encourage this.  I also suggest that there is an argument for adding skillful report writing to the attributes of a qualified expert engineer)

The need for better expert report writing

Expert’s reports can be written better and there are resources available to encourage this.  The need for better reports will be driven in part by civil procedure rules such as Rule 55 in Nova Scotia, Canada.

Requirements of the rules

These rules require an objective presentation of opinion to the court and a statement of the certainty with which these opinions are held.  Also required is a clear explanation of the reasoning leading to the opinion.  And by inference, demonstration that a sufficiently thorough forensic investigation has been carried out to support an acceptable degree of certainty in the opinion.

Expert engineers in eastern Canada often report on the causes of failure in the built and natural environments – why things fall down or don’t work properly, and the causes of industrial and traffic accidents – why people get hurt.

Skillful report writing a key attribute of a qualified expert engineer

The need for well written reports will give counsel and the courts another attribute by which to evaluate the qualifications of an expert professional engineer.

In fact, an argument could be made for adding report writing to the five widely accepted key attributes of an expert engineer (Ref. 1):

  1. Education
  2. Training
  3. Experience
  4. Skill
  5. Knowledge
  6. Report writing

Some would say that a qualification in report writing is implicit in the basic five attributes but I don’t think so.  Engineers are basically educated and trained to examine, measure and test, and to analyse the data obtained – tasks that are quite quantitative in nature, not literary.

We report our analyses but the reports are often in the form of drawings or number-dense compositions.  Nor are we required often enough to report our reasoning – how we arrived at the numbers.  That’s not report writing to the standard required in an expert’s forensic report.

Rule 55 limits discovery of experts and, by implication, places great emphasis on the expert’s report and, by inference, the standard to which the report must be prepared.

Engineers report easily and well to other engineers but often enough don’t report well to counsel and the court.  For example, our leaps of faith from raw data to opinion are easily understood by other engineers but not so much by counsel and the court.

“The need has skyrocketed for experts with specialized knowledge who can skillfully explain their knowledge (italics mine) and provide relevant opinions.  Experts play a significant role in investigating failures and presenting their findings in court (almost always today in a report).  In addition, plaintiffs, defendants, counsel, judges, and juries are being asked more and more to believe and rely upon opinions of the experts, a phenomenon known as “expert credito”. (Ref. 1)

Rule 55 (Nova Scotia) will promote better report writing and forensic engineering investigation

When I first prepared a report two years ago according to the requirements of Rule 55 I was struck by the potential for this rule to promote better expert report writing,  And, by extension, better, more thorough forensic engineering investigation.  You can’t write a good report unless you’ve carried out a thorough investigation.

Reason for poorly written expert reports  

I have been troubled by the poor composition, unsupported statements, and leaps of faith in drawing conclusions – some that would scare a tightrope walker, that I’ve seen in some experts’ reports.

No surprise given that we engineers and scientists like to measure things, crunch numbers and analyse data.  We are not wordsmiths by nature.  But this doesn’t relieve us of the responsibility to communicate our findings in simple English and to do it effectively.

Not to fault the technical expert too much.  We are not educated and trained to communicate with lay people.  We practice for several decades communicating for the most part with other technical types – no simple English skills needed - jargon only spoken here.  Finally, we are retained in later years for our extensive technical knowledge and experience and presented as experts to the courts - only to find we can’t write and speak simple English to civil litigation lawyers, judges, and juries.

Nor is the civil litigation lawyer – the wordsmith in the process – relieved of a responsibility to confirm that the expert they retain can present their findings skillfully in well written, laymen’s terms.  Confirm that the expert can write so judges and juries can understand.

The role of the expert in the judicial system is to interpret and explain technical material.  One role of counsel is ensuring that he or she understands the report before it goes forward.  Counsel is like a gate keeper.

Being technical is neither an excuse nor the justification for poor writing.  The inability to write well is a career-limiting short-coming (see Ref. 2) – and a potential embarrassment to lawyers, judges, and juries, not to mention the engineer and the scientist.

My experience leading to these views on the state of expert report writing

My experience leading to these views has been with engineering and legal firms ranging in size from sole practicioners to 50 to 75 staff.  Firms located in eastern and western Canada, and overseas in Australia, the U.K., and the Caribbean.

However, my colleague, Gary Bartlett, P.Eng. noted that he experienced a culture in much larger organizations – 200+ staff, that encouraged and required good writing skills, and they achieved this (Ref. 2).  Gary was an electrical engineer with the Canadian air force – air crew, for about 12 years then with the aerospace industry for at least another 25 years.  He still writes reports for the industry.

So, while there is a problem out there, the character and extent of it varies.  It behooves the lawyer in selecting an expert to learn a little something about where his expert is coming from with respect to his skill writing a report.

Resources for expert report writers

CDs and books

I was prompted to write this item on receiving a newsletter from Expert Communications, Dallas, Texas, a few days ago. (Ref. 3)  This firm provides expert witness training tools and other services to experts.

The newsletter announced the availability of a CD on report writing entitled, Expert Report Writing: Effective and Defensible.  The CD is an hour-long teleseminar of a discussion between Rosalie Hamiliton of Expert Communications and Steven Babitsky, president of SEAK, Inc.  SEAK also provides services to experts. (Ref. 4)

Steven Babitsky is formerly a trial attorney and a co-author of Writing and Defending Your Expert Report.  This book is one of the best I’ve read and studied on the subject.  Every expert should be given a copy by their retaining counsel.

Rosalie advised in an e-mail that If you have Steven’s book you don’t need the CD, although they do complement one another to some extent.  But, she says, if you don’t have time to read a book and actually like to get your education via oral and video presentations, then the CD will provide insight into this important topic of report writing.

Critical thinking course

Talking about oral presentations, one of the most valuable experiences I’ve had in recent years, with respect to my practice in forensic engineerng investigation and the accompanying report writing, was to take a course in critical thinking.

This was an intensive, year-long, two, 1.5 hour lectures a week course given by Professor Chris MacDonald at Saint Mary’s University in Halifax (Chris is now at Ryerson University in Toronto). (Ref. 5)  There was considerable emphasis in the course on looking critically at the basis of statements made to us and that we make; What’s the statement founded on?  What are you saying and basing your statement on?  These are critical questions for an expert to keep in mind when writing a report.

The importance of instruction in critical thinking can be gathered from the fact that hundreds of first year students in the liberal arts programs at Saint Mary’s and other universities are required or encouraged to take a course like this.  The course was given by three different professors the year I took it.  My class had about 200 students.

It’s interesting that many universities require first year arts students to take a course in critical thinking.  But don’t require this of first year engineering students.  A serious omission in my opinion.

Experts, regardless of how experienced, well known, and long in the tooth they might be would benefit from a course like this – and their expert reports would be better for it.

But, like reading books, not everyone can take time out to take courses at a university.  I’m beginning to think that on-line sources like The Great Courses can help solve that problem. (Ref. 6)

This firm offers several hundred courses on DVD and CD on a range of topics including critical thinking, reasoning, and writing.  The presentations are good and reasonably priced.  You receive a synopsis of the course with the DVD if you still want to do some reading.  A transcript of the lectures can also be purchased.  Some of the courses are interactive.  I have three of their courses on reasoning and writing and will buy two more for $79 in the next two weeks.

Arguing and report writing

Gaining some understanding of Toulmin logic would also benefit those of us writing expert reports.  I see it as a practical logic as opposed to a formal logic.  Toulmin advocates – analogous with existing practice in law – a procedural rather than a formal notion of validity.  He outlines a way that assertions and opinions can be rationally justified.

His text, The Uses of Argument, is a hard read because of the terminology and style of writing in vogue in the U.K. in the 1950s when he first published his ideas. (Ref. 7)  But, fortunately, you can go on-line and view graphical representations of his ideas which I thought were quite good.  There are also courses and lectures on his methods in simple English.  The illustrations will remind experts in writing their reports of the importance of ensuring their statements are well founded.

There’s no shortage of resources on writing better expert reports

There’s no shortage of guidance and no excuse for not writing better expert reports.  This will be driven by the high standards required by civil procedure rules like Rule 55 in Nova Scotia.  Rules like this will result in the writing of better expert reports and the carrying out of more thorough forensic engineering investigations.

References

  1. American Society of Civil Engineers, Guidelines for Forensic Engineering Practice, 2003, Chapter 2, Qualifications of Forensic Engineers
  2. Personal communication. Gary Bartlett, P.Eng., VP Engineering, (ret’d), IMP Aerospace, Halifax, Nova Scotia, Canada
  3. Expert Communications, Dallas, Texas www.expertcommunications.com
  4. SEAK, Inc., United States www.seak.com
  5. MacDonald, C., The power of critical thinking, Canadian edition
  6. The Great Courses www.thegreatcourses.com
  7. Toulmin, Stephen E., The uses of argument, updated edition, 2003, Cambridge
  8. Howard, V. A. and Barton, J. H., Thinking on Paper, William Morrow and Company, 1986

 

 

 

It’s not Big-Data, it’s Big-Computer that’s making its presence felt in society

Including in forensic engineering in big and helpful ways – but, we must know and keep in mind what the computer is doing.

One of the mistakes experts make is not understanding the computer programs they use to analyse data and what the programs are based on (Ref. 1).  This would include the accuracy of the mathematical models relevant to the problem they’re investigating.

We’ve heard about the discrepancies in the predictions of different climate-change models.  I also noted in a recent posting (Ref. 2) that big-data is giving us correlations not causes – and it’s the latter that’s of paramount importance in forensic engineering.

Big-data refers to the ability of society to harness huge amounts of data in novel ways with today’s computers, and analyse the data to produce useful insights on people, or goods and services of significant value. (Ref. 3)  This is the “big-data” revolution.

But Big-Data is really all about Big-Computer power.

I was reminded of this on reading an item in the Globe and Mail recently on how our lives are being “datafied” in both good and not-so-good ways (Ref. 4).  (The item is a good read if you’re interested in staying up to date on what’s happening with big-data)  I also reflected on this after doing a preliminary literature search for a case on-line last week in a few hours that would have taken a few days a decade or more ago.

The computer is the common denominator in what was reported in the Globe and Mail and my literature search.  The computer is generating a lot of the data that is subsequently being gathered together and analysed – also by the computer.

For me, I was able to quickly get a handle on existing and past standards, codes of practice, and guidelines in North America and Europe via Google.  I was also able to review the science relevant to my problem at Wikipedia.  Both using computer power.

But, at the end of the day, I’ve got to check the sources and citations supporting this information lest I make the mistake experts sometimes do of not knowing the accuracy of their sources.  I’ve started on this and did a little by e-mailing and in due course conferring on the telephone with a consultant in Texas.

It was “big-computer” power that took me across the continent and overseas not “big-data”.  The data was there – in a computer database; the computer went to it, and scooped it up for me.

References

  1. Babitsky, Steven and Mangraviti, Jr., James J., The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc, 2008
  2. Experts on the wane? Blog posted on this site on April 18, 2013
  3. Mayer-Schonberger, Victor and Cukier, Kenneth, Big Data: A Revolution That Will Transform How We Live, Work and Think, Houghton Mifflin Harcourt, New York, 2013
  4. The Globe and Mail, Thursday, May 9, 2013, page A21

The role of a professional engineer assisting counsel prepare for a Settlement Conference. Update on how to save time and money

(You are likely to be concerned, as I am, at the situation described in the following – a situation that wastes our client’s time and money)

The update is of a short item that was the 8th in a series on the role of a professional engineer at the different stages of civil litigation.  All the items in the series are listed below in the Bibliography and can be read on this blog site.

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

Update

My update expresses concern that civil cases are getting to the Settlement Conference stage before a forensic engineering investigation of the cause of the failure or accident is carried out.

Someone is going to get stung one of these days going forward with a case without a reliable determination of cause.  I haven’t seen this happen yet but it’s due.  And the more unusual the technical problem, the greater the risk.

At a Settlement Conference, you put forward a summary of your arguments to the judge on behalf of your client.  Too often the arguments are based on a cause that seems obvious.  But until the investigation is commissioned and completed and a technical expert has rendered a reliable, objective opinion – as per the requirements of Rule 55, you just can’t be sure.

To some extent, implicit in reliable is thoroughness.  Thorough case preparation on your part can’t be had without a reliable investigation of cause early in the litigation.

Also, cases settle quicker once a forensic investigation is carried out.

Fairly recently, I’ve seen two cases settle within a few weeks to a couple of months after technical opinions were rendered – many years, that’s many years, after a failure in the one case and an accident in the other had occurred and litigation begun.  I suspect another accident that I’m aware of will resolve just as quickly.  Time is money.  I don’t know what the injured parties were thinking letting these cases go on for years.

The six tasks listed below were originally identified for a perfect litigious world – civil litigation unfolding as it should; in the best interests of the parties involved.  I’ve suggested a seventh task after checking the investigations I’ve completed and realizing how imperfect that world is.

Seriously, counsel can take a case forward to a Settlement Conference with greater confidence – much greater than that possible based on the seemingly obvious, if a forensic investigation of cause is carried about the time a statement of claim or defence is filed.  And litigation resolved earlier and money saved.

Original Settlement Conference

If mediation or arbitration is not tried or is unsuccessful then lawyers for the parties meet and confer with a judge to decide if a settlement is possible with his assistance.  By this time the parties will be ready to go to trial.  They will have the documents that they will be relying on, reports from professional engineers and other experts, physical and demonstrative evidence, and testimony from discovery.

The lawyers, in advance of the Settlement Conference, send the judge a brief summary of their arguments and any relevant documents.

At the conference the judge will listen to the lawyers and try to achieve a settlement.  The judge will sometimes give an opinion on how they would decide the case if they heard it at trial.  However, they cannot force a settlement and would not officiate at the trial because of their role in the Settlement Conference.

A professional engineer might assist counsel at this stage of civil litigation by carrying out the following tasks:

  1. Review all technical evidence and technical facts identified at discovery, paying particular attention to new evidence
  2. Re-assess determination of cause of failure, inadequate performance, or cause of accident
  3. Check all technical documents and information that will be relied on in counsel’s arguments during the Settlement Conference
  4. Identify technical evidence and facts favourable to the opposing party
  5. Re-assess the technical strengths and weaknesses of the claim or the defense and brief counsel
  6. Review and comment, as appropriate, on the technical content of counsel’s proposed summary to the judge of their arguments and documents
  7. Carry out a forensic engineering investigation if you didn’t do this years ago

Biblio

  1. What is forensic engineering?, published, November 20, 2012
  2. Writing forensic engineering reports, published, November 6, 2012
  3. Steps in the civil litigation process, published, August 28, 2012
  4. Steps in the forensic engineering investigative process, published October 26, 2012
  5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
  6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
  7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
  8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
  9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
  10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
  11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
  12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
  13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
  14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
  15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com