What comes first in civil litigation, the chicken or the egg?

What comes first in a case with technical issues?  Filing a claim for damages or conferring with an expert?  Identifying the parties responsible or conferring with an expert. Discovering the parties involved or conferring with an expert?

I’ve been retained as an expert before a claim has been filed and in other cases many years afterwards, and at all stages in between.  In one case, 11 years after a claim was initiated – a claim that was subsequently resolved four months after a simple forensic engineering investigation was carried out.  Why not years earlier and save a lot of money and aggravation?

I’ve been retained in a number of cases, either a few weeks before discovery, a few weeks before ADR, or a few weeks before trial.- long after the die has been cast with respect to case strategy.  And without the benefit of informed comment on the technical issues.  I was consulted in one case a few weeks before trial, and the claimant did not even know the precise location of the structure alleged to have caused the damage – on one side of a hill or the other in a case where location was important!

It’s easy for me to imagine that some claims have been filed by counsel without benefit of some initial forensic investigation and comment by a technical expert – and the wrong parties named in the action.

I’m sure similar comments could be made and examples given about early and late involvement of a technical expert in defending against a claim.

Is there any question about the answer to the question, “What comes first in civil litigation …?”  Or should at least come close to being first.

I’ve also, wisely, been consulted by the owner of a structure that failed somewhat  catastrophically, after the owner had retained counsel, and after Notice of Claim had been filed – but, fortuitously, before counsel developed case strategy.  A close call that one.

I’ve also been retained very early by property owners with a problem, saw that they should confer with a civil litigation lawyer, and been able to refer them to suitably qualified people.

“Expert witnesses play an important role in modern litigation.  The choice of an expert may have a crucial bearing on the outcome of a case.  An expert can make or break a case and should be chosen carefully and early.”  (Ref. 1)

(David Stockwood’s practical handbook on civil litigation went to five editions – the latest in 2004, suggesting he was onto something with his guidelines for civil litigation lawyers.  I’ll bet he was planning a sixth edition when he passed away prematurely)

Technical experts should be involved early if for no other reason so they don’t have to play ‘catch-up’ later, which can be expensive.  Also, so counsel is not caught out on a limb, which could be embarrassing.  Involved possibly as early as counsel’s initial assessment as to whether or not to take a case, for certain before a statement of claim or defence is filed.  (Ref. 2 to 7)

Assessing the merits of a claim should involve early input from an expert when there is the slightest chance that technical issues are involved along with the legal issues.  Experts know about technical issues.

For example, a forensic engineering investigation:

  • determines the cause of a problem or an engineering failure in the built environment, or the cause of an accident,
  • provides evidence that establishes the technical facts
  • identifies the technical issues arising from the cause of a failure or accident on which a claim for damages is based, or a defense mounted.

Knowing cause, and the strength of the technical evidence and the importance of the technical issues – all determined for the most part by the expert, counsel can reliably assess the merits of a case and whether or not to proceed.

Most important in an assessment of merit is knowing who is responsible for the damages and who to name in an action and this frequently derives from knowing the cause of the failure or accident.

And no assessment of the merit of a claim involving legal and technical issues would be complete – would in fact be lacking terribly, without an initial assessment of legal and forensic engineering investigative costs.  (Ref. 1, 3, and 8 to 10)

Who better qualified to assess technical costs than the technical expert?  And, wisely, to be given the opportunity to do this as early as possible in the action.

For certain, there are situations where a claim or defense might be filed before a technical expert is consulted – sometimes the technical issues may seem minor, but not years after the fact.

It seems prudent for counsel to err on the side of caution and retain an expert early, like the legal handbooks and forensic engineering guidelines recommend.  (Ref. 1, and 11 to 13)  It’s easier to defend (to the client) having been prudent than not.

References

  1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed. 2004, pg. 14, Thomson Carlswell
  2. Steps in the civil litigation process, posted, August 28, 2012
  3. Steps in the forensic engineering investigative process with an Appendix on costs, posted July 15, 2013
  4. The role of a professional engineer in counsel’s decision to take a case, posted June 26, 2012
  5. The role of a professional engineer assisting counsel prepare a Notice of Claim, posted July 26, 2012
  6. The role of a professional engineer assisting counsel prepare a Statement of Claim, posted September 11, 2012
  7. The role of a professional engineer assisting counsel prepare a Statement of Defence, posted September 26, 2012
  8. How to manage the cost of civil litigation, posted October 4, 2013
  9. Difficulty estimating the cost of forensic engineering investigation, posted July 23, 2013
  10. Why the difficulty estimating the cost of forensic engineering investigation?, posted September 1, 2013
  11. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, New York, 1989
  12. ASCE, Guidelines for Forensic Engineering Practice, New York, 2003
  13. ASCE, Guide to Investigation of Structural Failures, New York, 1986

 

 

 

 

 

How to manage the cost of civil litigation

Management should be easy

Managing the cost of civil litigation should be easy when it involves technical issues.  But that doesn’t necessarily mean that it will be inexpensive.  Nor that you will know at the start exactly what the final cost will be.

What it does mean is that there is a simple process that can be followed.  A process to keep you and the client informed at different stages of litigation of the costs-to-date and the estimated total costs.  And keep you and the client informed with an increasingly accurate assessment of final costs.  There is a process for managing the financial realities of civil litigation (Ref. 1).

Why must cost be managed?

The cost of civil litigation must be managed in some way because:

  1. Civil litigation can be expensive (Ref. 1)
  2. Accurately estimating the cost of civil litigation is difficult (Ref. 16, 17)
  3. Clients generally don’t understand the financial realities of litigation (Ref. 1)

If you can measure something you can manage it.  Put another way, originally, ’What gets measured, gets done’ (Ref. 2).

If you are measuring something on a regular basis you can manage and control it.  If you take the measure of the costs of civil litigation – estimate, up-date, and evaluate the costs, periodically, for example, at the different stages of litigation, you can manage and control the costs.

Managing and controlling costs means ensuring you input the most up-to-date costs into your periodic re-assessment of the merits of continuing an action.

Categories of cost in civil litigation

Fortunately, what could be easier than noting three main categories of cost in civil litigation involving technical issues?:

  1. Legal costs
  2. Cost of the role of the expert at the different stages of an action, and,
  3. The cost of the forensic engineering investigation

Key stages in cost estimating

Stages in civil litigation

Then obtaining estimates of these costs and updates at the following key stages of civil litigation as recommended in practical handbooks of civil litigation (Ref. 1):

  1. Initial preparation and pleadings,
  2. Preparation and completion of discovery,
  3. Preparation and completion of ADR (Alternate Dispute Resolution)
  4. Long-range preparation for trial, and,
  5. Short-range preparation for trial.

I added Item #3 on ADR to the recommendations in legal handbooks because new technical data might arise in discovery that would merit an update of estimated costs.  Also, because the vast majority of cases do not proceed to trial (Ref. 1).

You as counsel would estimate your legal fees at these successive key stages and add them to the other two categories of fees.

You would work with the expert in estimating the second category of costs, the role of the expert at the different stages of civil litigation (Ref. 3 to 14).

The professional engineer would estimate the third category, the cost of the forensic engineering investigation.

Stages in forensic engineering investigation

Updated cost estimates can be given for the forensic engineering investigation at the following stages of an investigation:

(Ideally, much of the engineering investigative work would be complete by key stage #2 in the above, Preparation and Completion of Discovery.  In fact, in a perfect world, civil litigation wouldn’t be entertained at all in a case with technical issues until a forensic engineering investigation had been completed, the cause of an engineering failure or an accident determined, and the technical merits of the case assessed):

  1. Visual assessment of the site and preliminary planning of the investigation
  2. Field investigations – often after documenting damage to the structure, also after determining site conditions
  3. Research
  4. Follow-up investigations
  5. Data analysis

Counsel would take these updated investigative costs from the professional engineer, add them to the legal costs, and to the cost of the role of the expert in litigation, to obtain total, updated, civil litigation costs, and the client advised.

Then do this again at key stages of the engineering investigation and at key stages of the civil litigation process.  The merits of the case would be reviewed on each occasion and the client updated so that he or she could make a decision on whether or not to continue the action.

The estimating of forensic engineering investigative costs assumes a full scale investigation – same as counsel is encouraged in legal handbooks to assume a full scale trial when estimating costs (Ref. 1).

Reporting costs to the client

It’s important when counsel is reporting costs-to-date plus estimated future costs to express these costs as a percentage of the cost of the failed structure and/or the likely award.  Do this for estimated costs that err on the high side.  This percentage can be quite enlightening with regards to the wisdom of continuing the action.

Few clients realize how much it costs to become involved in litigation (Ref. 1).  Nor how difficult it is for counsel and the expert to estimate total costs (Ref. 16, 17).  Some cases and engineering investigations become very complicated.  A stepped approach to managing costs and frequent updates helps the client deal with the uncertainty.

The approach is not unlike the cost control procedures in the field of project management – constant re-evaluation and updating based on new data (Ref. 15).

It’s difficult to accurately estimate the cost of forensic engineering investigation because of the unknowns (Ref. 16, 17).  Counsel should help the client to understand, however, that the difficulty estimating costs decreases as technical data becomes available during key stages, and the accuracy of the cost estimate increases.

Counsel must ask for these updated cost estimates at key stages because it takes time to update the scope of a forensic engineering investigation and update a cost estimate, but, it’s worth it.

Summary

To summarize, as part of your on-going assessment of the merits of a claim or of a defense,

  1. Obtain the very approximate forensic engineering investigative costs from the engineer at the start of an action,
  2. Confer with the professional engineer and together determine the cost of the expert’s role at each stage in the civil litigation process,
  3. Add your legal costs to the engineering investigative costs and to the costs of the expert’s role in the civil litigation process to obtain a total cost,
  4. Brief your client at the start of an action on the estimated total costs and the legal and technical merits of the action, including comments on the difficulty estimating costs by you and the expert.
  5. Then do this again – estimating total costs - at key stages of the engineering investigation and at key stages of the civil litigation process, review the merits of the case again, and update the client at each stage, and, finally,
  6. Express the estimated total costs at each stage as a percentage of the expected award, which can be enlightening.

It sounds easy managing the cost of civil litigation, and it is easy – a well identified step by step process - and counsel and clients can benefit from that process.

Counsel does need to be alert though considering that many of you handle many files.  I’ve heard “…hundreds of files…” by one senior lawyer, “…lots…” by another, and “…dozens…” by a young lawyer.  So, be careful and pay attention to individual cases and manage the cost of civil litigation as easily as it can be done.

***

The cost of civil litigation and the scope of forensic engineering investigation

Before a professional engineer can actually estimate costs, the scope of a forensic investigation must be planned, based on an initial hypothesis of the cause of the failure or accident.  This planning takes time and involves identifying:

  1. The methods of investigation,
  2. The tasks associated with each method,
  3. The people, expertise, and skills needed to carry out the tasks
  4. The supplies and equipment needed by the people, and
  5. The time to carry out the tasks

Only after the scope of an investigation is developed, and updated at key stages, can the cost of a forensic engineering investigation be estimated.  This takes time, estimating, but if done properly the client knows approximately where he’s at cost-wise and where he might be going at any particular stage.

The actual scope and cost of a forensic investigation comes into better focus as each stage is reached and passed.

The estimating of forensic engineering investigative costs assumes a full scale investigation – same as counsel is encouraged in legal handbooks to assume a full scale trial when estimating costs.

And an assumed full scale forensic engineering investigation that responds to the justice system’s requirement for a thorough and reliable investigation that leads to an objective opinion as to cause.  (Ref. 4, 18 to 21).

 References

  1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed. 2004, pg. 14, Thomson Carlswell
  2. Personal communication, Osmond, NSLS, Jack, Owner, Affinity Contracting and Environmental Ltd., Halifax and Ball, P.Eng., Ken, Former manager, Imperial Oil Refinery Ltd. (“What gets measured, gets done”)
  3. Steps in the civil litigation process, published, August 28, 2012
  4. Steps in the forensic engineering investigative process with an Appendix on costs, published July 15, 2013
  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 Resolution (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. Project Management Institute, A Guide to the Project Management Body of Knowledge, Most recent edition, Newtown Square, Pennsylvania, USA
  16. Difficulty estimating the cost of forensic engineering investigation, posted July 23, 2013
  17. Why the difficulty estimating the costs of forensic engineering investigation?, posted September 1, 2013
  18. Civil procedure Rule 55, Nova Scotia
  19. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, New York, 1989
  20. ASCE, Guidelines for Forensic Engineering Practice, New York, 2003
  21. ASCE, Guide to Investigation of Structural Failures, New York, 1986

Bibliography

  1. Bent, James A. and Humphreys, Kenneth K., Editors, Effective Project Management Through Applied Cost and Schedule Control, Marcel Dekker, Inc., New York, 1996

Update

This item is an update of a recently published item on managing the cost of civil litigation.  The update basically involved expanding the section above, ‘Why must cost be managed?‘.  The section is expanded by adding and explaining an important managerial concept, and it’s application to civil litigation, that, ‘If you can measure something you can manage it’, or, put another way, ’What gets measured, gets done’.