Peer review in forensic engineering and civil litigation

Peer review is needed

We need peer review in forensic engineering to further ensure that the most thorough investigation is carried out and the most thorough, reliable, and objective technical evidence, opinions, and explanations are provided the justice system.  The court and counsel would learn from the knowledge and experience of more than one expert who would in a sense contribute to a single opinion on the technical issues (Ref. 1).

It’s needed.  I’ve read four poorly written ‘expert’ reports in the last while based on inadequate investigation and reasoning – really, very little investigation in most cases, and no reasoning in all cases.

It’s easy to include a simple form of peer review in forensic engineering

It would be easy to include a simple form of the peer review process in the investigation of a failure or accident in the built environment.  As easy as getting an independent expert to simply read the report of the investigating expert.

From that simple start, gradually move to a more comprehensive process over time.  I’m not quite sure at this stage of my thinking how a comprehensive peer review process would work in forensic engineering, but it would evolve because of the need for it.

Peer review will come in time because of civil procedure rules

The adoption of the peer review process will be driven in part by the increased emphasis on preparation of a report for the justice system - and less emphasis on discovery - arising from civil procedure rules such as Rule 55 in Nova Scotia.

The rule spells out the requirements of the expert.  They are exacting with respect to the expert being thorough, reliable, and objective, and reporting his evidence and reasoning, and also stating what other conclusions might have been drawn from his evidence.

The peer review process would seem to be essential to further ensure that such a requirement is met and the justice system and counsel are properly served.  Professional engineering associations essentially set these same requirements for those practicing in the forensic geotechnical, foundation, and structural engineering fields (Ref. 2 to 5).

The peer review process in science – the source for peer review in engineering

In science, peer review is the process by which an author or researcher’s scholarly work is checked by a group of experts in the same field – his peers, people of similar qualifications, experience, and competence, to make sure it meets the necessary standards before it is published or accepted (Ref. 6).  It constitutes a form of self-regulation by qualified members of a profession within the relevant field (Ref. 7).

Put another way, peer review is specifically geared to catch any potential biases of the primary examiner (the forensic engineer), to promote the examiner’s heightened diligence (promote thorough forensic investigation) to pursue each important clue (follow the evidence) and to recognize the clinical significance as it surfaces (objectively accept the findings) (Ref. 1). (my parenthetic additions)

In science, publishers and editors of journals have identified independent experts in different fields who are assigned to review submitted papers on the author’s research.  The independent experts and the author may be known to one another or they may not.  Or only the one may know of the other.

Peer review has been practised a very long time in science and is essential to obtaining good science.  Forensic engineering must receive the same rigid peer review before going to the judge, jury, and counsel to further ensure they get good forensic engineering..

Peer review in forensic engineering

In forensic engineering, at least during initial implementation of the peer review process, the independent expert, or experts, would be a consulting professional engineer - a peer, retained to review the investigation and report by another engineer.  Both engineers would be retained by the same party involved in the action but ideally from separate firms.

The independent expert’s job would be to check that the forensic investigation was carried out according to the standard of care existing at the time.  Also, as stated above in the introduction to this item, to check and further ensure that “the most thorough investigation is carried out and the most thorough, reliable, and objective technical evidence, opinions, and explanations are provided the justice system” in a well written report, a report that would also be reviewed by the independent expert.

This checking of an engineering expert’s work by his or her peer would be easy to implement and would constitute a simple form of peer review.  It’s recommended now in geotechnical, foundation, and structural engineering (Ref. 2 to 5).

The final report by the investigating engineering expert would be his report alone because he would have corrected any agreed deficiencies noted by his peer.

References

  1. The Forensic Panel, Google
  2. Lewis, Gary L. ed., Guidelines for Forensic Engineering Practice, ASCE, the Association of Civil Engineers, Virginia, 2003
  3. ASCE, Guidelines for Failure Investigation, Virginia, 1989
  4. Ratay, Robert T., Forensic Structural Engineering Handbook, McGraw Hill, New York, 2000
  5. ASFE, Association of Soil and Foundation Engineers, A Guide to Forensic Engineering and Service as an Expert Witness, 1985
  6. Merriam-Webster Dictionary, 2013
  7. Wikipedia, Google

 

 

 

 

A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts

Following is a list of blogs posted on this site in the past that are useful to civil litigation lawyers and their clients.  The items are classified under these headings:

  • Forensic engineering and civil litigation,
  • The role of professional engineers in civil litigation, and,
  • Managing the cost of civil litigation.

The blogs – neatly bundled in this one posting, will enable counsel and clients to quickly learn how engineering experts address the technical issues in a case during the civil litigation process.

You can click on the addresses below and instantly go to the item you want to read.  When you’re finished reading, click on the back arrow and return to this blog.

Forensic engineering and civil litigation

  1. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell
  2. Steps in the civil litigation process.  Posted August 28, 2012 http://www.ericjorden.com/blog/2012/08/28/steps-in-the-civil-litigation-process/
  3. What is forensic engineering?  Posted November 20, 2012 http://www.ericjorden.com/blog/2012/11/20/what-is-forensic-engineering/
  4. Steps in the forensic engineering investigative process.  Posted July 15, 2013 http://www.ericjorden.com/blog/2013/07/15/steps-in-the-forensic-engineering-investigative-process-with-an-appendix-on-costs/
  5. “Technical” visual site assessments: Valuable, low cost, forensic engineering method.  Posted September 4, 2012.  http://www.ericjorden.com/blog/2012/09/04/technical-visual-site-assessments-valuable-low-cost-forensic-engineering-method/
  6. Writing forensic engineering reports.  Posted November 6, 2012 http://www.ericjorden.com/blog/2012/11/06/writing-forensic-engineering-reports/
  7. New civil procedure rules will result in the writing of better expert reports.  Posted May 20, 2013 http://www.ericjorden.com/blog/2013/05/20/new-civil-procedure-rules-will-result-in-the-writing-of-better-expert-reports/
  8. What do you think?  How do you express the degree of certainty with which the expert holds the opinion?  Posted June 8, 2013  http://www.ericjorden.com/blog/2013/06/08/what-do-you-think-how-do-you-express-the-degree-of-certainty-with-which-the-expert-holds-the-opinion/

The role of professional engineers in civil litigation

  1. What comes first in civil litigation, the chicken or the egg? Posted October 21, 2013 http://www.ericjorden.com/blog/2013/10/21/what-comes-first-in-civil-litigation-the-chicken-or-the-egg/
  2. The role of a professional engineer in counsel’s decision to Take a Case.  Posted June 26, 2012 http://www.ericjorden.com/blog/2012/06/26/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case/
  3. The role of a professional engineer assisting counsel prepare a Notice of Claim.  Posted July 26, 2012  http://www.ericjorden.com/blog/2012/07/26/the-role-of-a-professional-engineer-assisting-counsel-prepare-a-notice-of-claim/
  4. The role of a professional engineer assisting counsel prepare a Statement of Claim.  Posted September 11, 2012 http://www.ericjorden.com/blog/2012/09/11/the-role-of-a-professional-engineer-assisting-counsel-prepare-a-statement-of-claim/
  5. The role of a professional engineer assisting counsel prepare a Statement of Defence.  Posted September 26, 2012 http://www.ericjorden.com/blog/2012/09/26/the-role-of-a-professional-engineer-assisting-counsel-prepare-a-statement-of-defence/
  6. The role of the professional engineer assisting counsel prepare an Affidavit of Documents.  Posted October 4, 2012  http://www.ericjorden.com/blog/2012/10/04/the-role-of-a-professional-engineer-assisting-counsel-prepare-an-affidavit-of-documents-6th-posting-in-a-series/
  7. The role of a professional engineer assisting counsel during Discovery.  Posted October 16, 2012  http://www.ericjorden.com/blog/2012/10/16/the-role-of-a-professional-engineer-assisting-counsel-during-discovery/
  8. The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR).  Posted November 16, 2012 http://www.ericjorden.com/blog/2012/11/16/the-role-of-a-professional-engineer-assisting-counsel-during-alternate-dispute-resolution-adr/
  9. The role of a professional engineer assisting counsel prepare for a Settlement Conference.  Posted November 29, 2012 http://www.ericjorden.com/blog/2012/11/29/the-role-of-a-professional-engineer-assisting-counsel-prepare-for-a-settlement-conference/
  10. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference.  Posted December 12, 2012 http://www.ericjorden.com/blog/2012/12/12/the-role-of-a-professional-engineer-assisting-counsel-prepare-for-a-trial-date-assignment-conference/
  11. The role of a professional engineer assisting counsel prepare for Trial.  Posted December 19, 2012 http://www.ericjorden.com/blog/2012/12/19/the-role-of-a-professional-engineer-assisting-counsel-prepare-for-trial/

Managing the cost of litigation

  1. How to manage the cost of civil litigation.  Posted October 4, 2013 http://www.ericjorden.com/blog/2013/10/04/how-to-manage-the-cost-of-civil-litigation/
  2. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2012 http://www.ericjorden.com/blog/2013/07/23/difficulty-estimating-the-cost-of-forensic-engineering-investigation/
  3. Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2012 http://www.ericjorden.com/blog/2013/09/01/why-the-difficulty-estimating-the-cost-of-forensic-engineering-investigation/
  4. Should experts do pro bono work?  Posted November 13, 2013 http://www.ericjorden.com/blog/2013/11/13/should-experts-do-pro-bono-work/
  5. Do forensic engineers jeopardize the appearance of their objectivity? Posted June 28, 2013  http://www.ericjorden.com/blog/2013/06/28/do-forensic-engineers-jeopardize-the-appearance-of-their-objectivity/

 

 

 

Should experts do pro bono work?

Should experts do forensic engineering investigative work for free?  Would this jeopardize their objectivity or the justice system’s perception of it? (Ref. 1)

I have concluded that, in general, we should not and yes it would.

A possible exception would be a financially strapped client who otherwise might not have access to the justice system.

This question came up recently during lunch with a colleague who had referred an Atlantic Canada legal aid group to me.  One of their clients had a problem the cause of which my colleague recognized was more in my area of expertise to investigate than his.

I was contacted by a student lawyer with the legal aid group and called to a meeting.  I was told by an administrator almost before I could sit down, “We don’t have much money..!!  What’s your fee?”

I told them my hourly fee and also referred them to the Fees page on my website. www.ericjorden.com/fees  My schedule of fees is comparable to other senior professional engineers practicing forensic engineering in eastern Canada and, for that matter, elsewhere in Canada and the U.S.

They briefed me on the problem – an environmental failure, experienced by their client, the plaintiff.  Also that they had a court date about six weeks hence.

One of their biggest problems – aside from the tight court schedule, was that they did not know the precise location of the structure alleged to have caused the failure.  The location was critical to determining if the structure was the cause.

I outlined some of the tasks I would need to carry out in a forensic engineering investigation – including first locating the structure. (Ref. 2)

They said they would get back to me but I haven’t heard from them since.

Should I have said I would do the work pro bono instead of stating my fee?

In discussing this later with my colleague, he noted, “You’re doing the work for free for one party.  How is that different from doing the work for a fee for one party?”  He’s done work pro bono for the clients of this legal aid group feeling, “I should put back into the community”.

But we’re not doing the work for one party, we’re doing the work for the justice system.  The one party is paying an expert to gather technical evidence to be submitted to the court.  Also to explain the technical findings to the judge and jury, and to the counsel for the parties involved.  And to do this objectively, thoroughly, and reliably.  The justice system’s requirements for the expert to be objective are very clear.  There are no qualifications on this objectivity. (Ref. 3)

But the justice system represents the community’s interests.  Shouldn’t we from time to time put back into the community?

We must do this but not in this forum.  The justice system’s understanding of where we are expected to come from as experts affects their perception of our actions.  Lawyers are expected to be subjective and advocate on behalf of the client.  Experts are expected to be objective and advocate on behalf of the truth.

In our society, doing something for free for someone tends to imply a closeness that would not be acceptable for an expert in forensic work, even if the closeness is only slight.  There is the implication that we want to help someone when the clear implication should be that we want to help the court.  The requirement that we ‘stay at arm’s length’ is compromised.  If there’s any uncertainty at all about the objectivity of the relationship between the expert and the client there’s risk of being perceived as biased to the client’s interests.

We pay for goods and services in our society.  We can’t get away from that.  And you get what you pay for.

“Perception is extremely important.”, noted Alan E. Mitchell, a former lawyer in private practice and former Nova Scotia Minister of Justice.  Alan was of this opinion in a recent discussion I had with him about the Senate and Rob Ford scandals.  Perception applies across the board in human affairs.

We as experts must not do pro bono work – as a rule, even if we might want to as community minded citizens.

References

  1. Do forensic engineers jeopardize the appearance of their objectivity?  Posted June 28, 2013  http://www.ericjorden.com/blog/2013/06/28/do-forensic-engineers-jeopardize-the-appearance-of-their-objectivity/
  2. Steps in the forensic engineering process with an Appendix on costs.  Posted July 15, 2013 http://www.ericjorden.com/blog/2013/07/15/steps-in-the-forensic-engineering-investigative-process-with-an-appendix-on-costs/
  3. Rule 55 Nova Scotia Civil Procedure Rules