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

 

 

 

 

 

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