Do forensic engineers jeopardize the appearance of their objectivity?

Do we jeopardize the appearance of our objectivity when we are retained and confer directly with a litigant rather than with their counsel?

Sometimes counsel recommends that their client get an expert to investigate their problem, then get back to them with a report.  Other times the litigant does this first then retains a lawyer.

How do we stay at arm’s length from the person with the problem in a situation like this and be seen to be objective?

What does this do to our need as forensic engineers “to be objective and be seen to be objective”?

I had this situation develop a while ago when I was retained by a property owner with a problem who subsequently retained counsel.  It was difficult to stay at arm’s length particularly in view of the plaintiff’s well informed technical background compared to counsel’s.

I was reminded of this situation again last week when a litigant telephoned with a serious enough problem.  The quite technical litigant described their problem well.  They also referenced their lawyer, a senior person in the town who does not advertise themselves as practicing civil litigation.

What’s going to happen if I take this case?  The inclination will be to confer with the technical litigant and much less so with the quite possibly very non-technical counsel.

Experts in the U.S. are being advised by organizations like Expert Communications and SEAK, Inc. not to take cases like this. (Ref. 1, 2) There is too much risk to the perceived objectivity of the forensic engineer according to these groups.  If we appear to be biased in the one instance, what does that do to our credibility for evermore?

Atlantic Canada is not the U.S. – civil litigation is different in the U.S., but I think we’ve got to be careful up here, nevertheless, and take steps to ensure we work closely with counsel as forensic engineers even though we might be initially retained by the litigant.

I have in the past, and would in the future, report directly to counsel and copy all material to the litigant.  I would explain to the litigant that this is the best procedure and in his interests.  An advantage is the ongoing opportunity to explain and keep counsel up to speed on technical matters.

I’ve had the experience of two cases where counsel thought they understood their case technically, and declined my briefing, and each case went badly for the plaintiff, and indications were – from the judge, no less, that they shouldn’t have.

It’s particularly important, in the interests of being seen to be as objective as possible, to have the accounts go through counsel.  This also enables counsel to carry out ongoing assessments of the merits of the case, including legal and forensic engineering investigative costs as a percent of estimated damages. (Ref. 3)

We need to guard the appearance of our objectivity with a vengeance, for the benefit of the litigant, ourselves, and counsel.  But it’s not always easy when the litigant seeks and retains the forensic engineer directly.

References

  1. Expert Communication, Dallas, Texas www.expertcommunications.com http://tinyurl.com/m2sn8sh
  2. SEAK, Inc, Falmouth, MA www.seak.com
  3. Stockwood, Q.C., David, Civil Litigation, 5th ed., 2004 Thomson Carswell, Toronto

 

Mistakes forensic engineers make

(Note: Please contact me with other examples of mistakes made by forensic engineers – in addition to the following, and I will publish them in an update)

Following are mistakes forensic engineers make in the practice of forensic engineering in Atlantic Canada.  They have been taken in part from a publication by Babitsky and Mangraviti that resonated with me as relevant to Atlantic Canada (Ref. 1) and partly from my experience in this area.

Counsel can assist the forensic engineer avoid many of these mistakes.  Asking the forensic engineer about any of these issues is one way of assisting.

Most of the mistakes occur in the investigative and report preparation stages of a forensic investigation (Ref. 2).  Mistakes occur in other stages of an investigation but these are not reported here.

Taking case

Mistake #1: Preparing different CVs for different clients.

This might happen inadvertently when a professional engineer updates his CV for each new case.

Lesson: More than one CV may imply or show that the engineer’s CV changed depending on the type of case being considered.

Solution: A professional engineer should have one CV

Mistake #2: Accepting rush cases that do not permit the engineer to follow his standard protocol.

Counsel sometimes call professional engineers late in the process of civil litigation with last-minute assignments.  These assignments require a rushed investigation, review, analysis, and forming of an opinion.

Lesson: Rushing an investigation can produce an opinion that is vulnerable to rebuttal and cross-examination.  Forensic engineers need to be able to recognize a rush assignment and decline when the timeframe is too tight to do their work properly.

Solution: Counsel should not offer and professional engineers should not accept rush or last-minute assignments.

Mistake #3: Accepting low-budget cases.  Forensic engineers sometimes accept low-budget cases.

Lesson: In low-budget cases, it is unlikely that forensic engineers will be able to do adequate investigation and analysis due to budgetary constraints.  There is never an adequate excuse – including a low budget - for doing substandard or incomplete forensic investigative work.

Solution: Forensic engineers should not accept low-budget cases.  The forensic engineer should determine at the outset if an adequate budget has been set to perform investigative work properly.

Investigation

Mistake #4: Failing to document.  Forensic engineers fail to adequately document their investigation and findings.

Lesson:   The judge, jury, opposing counsel, and other forensic engineers may take a long, hard look at the manner in which a forensic engineer documents his investigative work.  If the engineer is careless, less weight will be given to his findings and opinion.  Forensic engineers run the risk of having their investigative tasks, reports, opinions, and testimony discounted or even excluded.

Solution: Forensic engineers should meticulously document their investigative work.

Mistake #5: Failing to establish and follow protocol. Failing to follow one’s own standard investigative protocol due to time or financial constraints can be a serious mistake.

Lesson: When forensic engineers have a protocol or procedure and do not follow it they should expect that their findings, conclusions, and opinions will be questioned, and in some cases undermined.

Solution: Brief retaining counsel on the difficulty this presents and consider declining the assignment when the deadline or budget is insufficient.

Mistake #6: Failing to review the the complete set of records.  Forensic engineers are sometimes provided an incomplete set of records or portions of records to review, and agree to review this less than full record.

Lesson: In agreeing to review less than the full record, the forensic engineer may put themselves in a very difficult position.  They should expect to be asked why they did not review the entire record, if missing portions may be significant, particularly if they requested to see the entire set of records.  They may be asked to review the omitted records while testifying.

Solution: Forensic engineers should not accept portions of records or an incomplete set of records to review without the full understanding of retaining counsel of the potential consequences of this.

Mistake #7: Not asking for all the records.  Forensic engineers sometimes do not ask for all of the records in the case they are working on.

Lesson: The forensic engineer shows a lack of due diligence when he does not ask for a complete set of records from retaining counsel.  In addition, the engineer opens himself up to unnecessary questioning by opposing counsel.

Solution:  The forensic engineer should ask for all documents.

Mistake #8: Not corroborating facts provided by counsel.  Forensic engineers take facts provided by retaining counsel without checking them.

Lesson: Forensic engineers who do not corroborate the facts are vulnerable to cross-examination by opposing council.

Solution: Where feasible, corroborate the facts in the case.  This is best done by a comparison to the records, documents, statements, discovery testimony, and investigative findings.

Writing reports

Mistake #9: Writing reports that are based on incomplete investigations and insufficient data.

Forensic engineers sometimes write reports, for example, a preliminary report, that they do not anticipate will become part of the litigation process.  They also are sometimes asked to take on forensic assignments only to learn later that insufficient data are available to render a report to a reasonable degree of engineering certainty.

Lesson: The failure to do a complete and adequate investigation and testing will always look worse when the engineer is forced to testify and support his (preliminary) report.

Solution: Forensic engineers writing reports should always anticipate that they may have to defend their reports at discovery or trial.  The report should be of a quality that is easily defended.

Do not write a report and express an opinion until you have sufficient facts to do so.  It might be necessary after studying the available evidence to advise counsel that he is unable to render an opinion to a reasonable degree of engineering certainty.

Mistake #10: Writing a report without being asked by counsel.  Professional engineers may do this because it is a natural step in an investigation.  However, counsel is an advocate on behalf of the client.  If the investigative findings are not favourable counsel may not want one published.

A report is also an expense, even if the findings are favourable, and may be seen as a means of cutting corners.

Lesson: Forensic engineering reports are generally discoverable.  They are also expensive and must be requested.

Solution: Do not write a report until retaining counsel requests one.  But, encourage a report because it is usually the best way to explain fully and properly to counsel and to the judge and/or jury the technical issues, the forensic investigation and the findings.  Judges are wordsmiths and usually prefer a well written report.

Mistake #11: Not writing a report according to civil procedure rules like Rule 55 in Nova Scotia.  Rule 55 is very explicit on what to cover in a report.  It outlines what the justice system needs to resolve the technical issues in a dispute.

Lesson: Not writing a report according to the rules may undermine the report and reduce it’s weight.

Solution: Write your report according to the rules.

Mistake #12: Sharing draft reports with counsel.  Forensic engineers share their draft reports with retaining counsel and then re-work the reports.

Lesson: Sharing draft reports invites close questioning from opposing counsel about the influence of retaining counsel on the report writing process.

Solution: Do not share draft reports with retaining counsel.

Mistake #13: Not ensuring counsel understands the investigation and the findings thoroughly – the investigative tasks, the purpose of each task, the data from each task, the analysis, the findings, and the cause of the problem.

Lesson: Counsel may not present the technical evidence correctly and as a result argue ineffectively on behalf of his client.  This could reflect unfairly on the forensic engineer.

Solution: Recommend a meeting with counsel and report on the investigation in detail.  Make certain counsel clearly understands.

References

  1. Babitsky, Steven and Mangraviti, Jr., James L., The Greatest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc., Falmouth, MA, 2008 http://store.seak.com/the-biggest-mistakes-expert-witnesses-make-and-how-to-avoid-them/
  2. Jorden, M.Sc, P.Eng., Eric E., Steps in the forensic engineering investigative process, posted October 26, 2012
  3. Stockwood, Q.C., Civil Litigation, 5th, Thomson Carswell Ltd, 2004

What do you think? How do you express “the degree of certainty with which the expert holds the opinion”?

How do you express “the degree of certainty with which the expert holds the opinion” as required by some civil procedure rules in Atlantic Canada? (Ref. 1)  For example, Rule 55 in Nova Scotia.  Do you know?

What did the draftees of rules like this have in mind?

How do you indicate if the degree of certainty is high or low, or somewhere in between?  How do you indicate that it’s just over 50% or close to 95% or somewhere in between?

Most definitions of “degree” in different dictionaries include words like “steps”, “stages”, “grade”, “classifications”.  These words suggest to me something that can be measured, or at least the attributes of different levels of classification identified.

What words should we use if we use words?  If we use numbers, how do we measure “degree” of certainty?

Would the court expect an engineer or some other applied scientific expert to quantify the degree of certainty?  Engineers like to measure things and to some extent, the courts, judges, juries, counsel, the public, know and expect this.  How do you measure the degree of certainty?

It’s been said, if you can measure something you can manage it. (Ref. 2)  How do you measure the degree of certainty and manage to achieve an acceptable certainty when forming your opinion?

If we could measure it we could manage it and ensure it’s over 50%, say, or close to 95%, and assure the court that our opinion is correct.

Could you quantify degree of certainty by reporting that you carried out a certain number of studies of equal validity and more than half of those lead to your opinion?  Would that be quantification?

Is it necessary to quantify the degree of certainty, as engineers would like to do?  Or is it sufficient in Atlantic Canada to express an opinion in an expert report as follows, as recommended by one organization in the U.S. (Ref. 3):

It is my opinion “based upon a reasonable degree of (engineering, medical, legal, accounting, jewelry appraisal, or other field) certainty that …”

When I first read this recommendation I e-mailed the first author, Steven Babitsky, a former personal injury trial attorney, and was told this means “more likely or more probable than not and is legally sufficient”. (Ref. 4)  Is he saying “beyond a reasonable doubt”?  If this gets us just over the line, 50+%, what about all the other classifications of certainty between 50+% and 95%?

Are these words as suggested in the U.S. sufficient for the requirements of civil procedure rules like Rule 55 in Nova Scotia?  Are they a sufficient statement of  ”the degree of certainty” as required by our courts?

What do you think?  How do we express the degree of certainty to the court?

Do we use words to express the degree of certainty?  If so, what might those different words be to indicate different degrees, steps, stages, classifications, etc. of certainty?  Or do we measure and quantify, and, if so, how do we do this?

References

  1. Civil Procedure Rules, The courts of Nova Scotia, Contents of Expert’s Report, Rule 55.04 (2) (c)
  2. Osborne, Jack, Personal communication
  3. Babitsky, Steven, and Mangraviti, Jr., James J., Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, SEAK, Inc., Falmouth, Mass., 2002
  4. Babitsky, Steven, personal e-mail communication, August 19, 2009