An expert’s “dirty hands and muddy boots”

Canadian and American engineers are ”…known for going on site and getting their hands dirty and mud on their boots”.  And this is a good thing in forensic engineering, and engineers should go there as soon as possible and as often as need be.

I know this to be true. I don’t feel comfortable until I get out on site.

I heard this expressed by one of my professors at a university in the U.K. when I was overseas doing graduate work years ago. (Ref. 1)

It felt good hearing this at the time, and I’ve tried to live up to that view of us.  It’s fairly easy for me because the field is a place I like to go.

I’ve thought for a while to share this with you.  But I didn’t quite know how to explain what it meant.  Still not quite sure.  For certain, it means much more than the initial site visit and visual assessment in a forensic engineering investigation (Ref 2).  It’s a cultural thing.  It’s a feeling, a good feeling; we just want to get out on site and collect data, build things – with our hands, fix things, solve problems, do stuff.  If we get dirty, it’s okay, it washes off, and besides, we’re doing things.

It’s important that counsel establish that their expert got out on site.

Our interest in being on site fits in with guidelines in the forensic engineering literature.  These recommend, for example, that the investigator be present and witness field and laboratory tests.  This carries a lot of weight in the justice system, the investigator, the expert, doing and seeing things done.

You can’t go to a site after a building or civil engineering structure has been erected and examine reinforcing steel buried in concrete, structural steel hidden behind gyproc walls, and foundations buried in the ground.  There are regulations in some municipalities today that require the engineer to be there when it was being done and sign off on this.

Our interest also resonates with the fact that about 80% to 85% of what we learn is acquired visually.  Collecting data visually is the way we get most of our information.  You can’t beat picking up a concrete impression on site, walking and poking around, ‘kicking a few tires’.  It’s difficult to talk about something without seeing it.

We like working with people to get a job done, but when we examine a site, investigating and collecting data, we like to do this privately and in a relaxed manner without the distractions of the presence of another person.

Counsel would do well to establish if their expert did this: Got out on site a lot.  He should also cross-examine and establish if opposing counsel’s expert did this as well.

Credibility goes way up if an expert has gone into the field and got “his hands dirty and mud on his boots”.

References

  1. Professor John Billam, Department of Engineering, University of Birmingham, U.K.
  2. “Technical” visual site assessments: Valueable, 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/

 

 

 

 

 

 

 

 

 

 

 

 

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 is an update of a previous blog on 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), partly from my experience in forensic engineering, and partly from suggestions by colleagues.

Mistakes numbers 4, 5, 8, 13, and 18 have been added to the list.

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 engineering investigation.  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 the steps in the forensic engineering investigative process (Ref. 2).

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 time-frame 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.

Mistake #4: Taking a case for which the forensic engineer is not qualified.

Experts sometimes mistakenly step outside their sandbox and take a case for which they are not qualified.

Lesson: The almost certain inadequacy of your forensic investigation will be found out.  This will reflect on your reputation and credibility.

Solution: Do not accept work for which you are not qualified.

Mistake #5: Recommending an expert to counsel when we do not know well that expert’s qualifications.

We sometimes refer counsel to other experts whose qualifications for the investigation we do not know well.  And subsequently, that expert does not carry out an adequate investigation.

Lesson: The inadequate work of the recommended expert reflects poorly on the person who recommended him/her.

Solution: Do not recommend anyone whose work you do not know well.

Investigation

Mistake #6: 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 #7: Failing to establish and follow a standard investigative 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 #8: Getting seduced by the tyranny of the obvious (Ref. 3) 

The professional engineer does not carry out a thorough forensic engineering investigation because the cause is ‘obvious’.

Lesson: You learn from an expert for another party to the action that the obvious cause was incorrect.

Solution: Carry out a thorough forensic engineering investigation even if it’s only to confirm the obvious.

Mistake #9: 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 #10: 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 #11: 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 #12: 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 (Ref. 4).

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 #13: Writing vague, equivocal and uncertain reports.

Experts sometimes write vague, uncertain reports that are open to different interpretations because of insufficient data or the expert’s writing style.

Lesson: Your report and opinion may be rejected by the court.  This is happening often enough.

Solution: Carry out a thorough forensic investigation.  Use precise, certain language and state your findings and opinion clearly and directly in simple, declarative sentences. (Ref. 4)

Mistake #14: 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 a report published.

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

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 #15: 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 #16: 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 #17: 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.

Mistake #18: Appearing to advocate on behalf of the client. 

This may inadvertently occur when the technical findings of the investigation support the client’s case.  The forensic engineer may appear to be advocating in making the technical truth known to the justice system.

Lesson: Your credibility as an expert is compromised if you are perceived to be advocating for the client.  Credibility is like a slippery rock: Hard to get back (on)once you lose it (slip off).

Solution: State the technical data quietly and clearly without any hint of enthusiasm for the truth you have found.  Do not use emphasis when expressing findings or conclusions.

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. Steps in the forensic engineering investigative process, posted October 26, 2012 http://www.ericjorden.com/blog/2012/10/26/steps-in-the-forensic-engineering-investigative-process/
  3. Getting seduced by the tyranny of the obvious, posted December 9, 2013 http://www.ericjorden.com/blog/2013/12/09/getting-seduced-by-the-tyranny-of-the-obvious/
  4. Babitsky, Steven and Mangraviti, Jr., James L., Writing and Defending Your Expert Report, SEAK, Inc., Falmouth, MA, 2002
  5. Stockwood, Q.C., Civil Litigation, 5th, Thomson Carswell Ltd, 2004

 

“Getting seduced by the tyranny of the obvious”

I got thinking about this phrase after a colleague replied: “Don’t get seduced by the tyranny of the obvious”.  This reply to my request for examples of mistakes experts make in civil litigation cases (Ref. 1),

(My colleague requested no citation but he is an experienced professional engineer, quite well known in eastern Canada, and been around the block a few times.  He looked at a draft of this posting)

We were chatting about the mistakes experts make.  He was referring to an engineer not carrying out a thorough forensic engineering investigation because “the cause is obvious”.  And, as a result, sometimes making a mistake, and learning that the ‘obvious’ cause is wrong.

Counsel needs to know about this fairly human susceptibility of experts.  They can help ensure an expert doesn’t make this mistake by clearly stipulating a thorough investigation.  Regardless as to where the initial investigation seems to be leading.

There’s no question that forensic engineers sometimes make this mistake - get seduced by the tyranny of the obvious.

Why?  Some reasons:

  • We honestly think we’ve nailed the cause and stop investigating.
  • We are susceptible to the good feeling you get when you quickly determine the cause of a failure in the built environment or the cause of an accident.  We like getting at the truth and the good feeling at finding it.
  • We got egos, and sometimes think we’re more insightful than is actually the case, and, besides, a quick assessment and fix of a problem looks good on us.
  • We made the mistake of taking a case with an inadequate budget or too tight a deadline.

The Merriam-Webster dictionary defines tyranny as, ‘a rigorous condition imposed by some outside agency or force, e.g., living under the tyranny of the clock’.  And for obvious, the dictionary says, ‘easily discovered, seen, or understood’.  Power over something is implicit in tyranny.

You decide not to carry out a thorough investigation after doing a little investigation because you believe you have found the cause of the failure - it’s obvious.  Except you learn later – perhaps from an expert retained by another party, that you’ve made a mistake, that there was another cause.  Or you had difficulty explaining in court why it was obvious.  Or difficulty explaining why you didn’t carry out a thorough investigation to be sure of the obvious.  You forget that it’s easier to explain doing too much than too little.

You found something, latched onto it, and didn’t look further.  The obvious had you in its power.

Forensic engineers, take care that the seemingly obvious answer to the cause of a failure or an accident doesn’t blind you to your commitment to the justice system to do a thorough investigation.  And Counsel, take care that your expert has an adequate budget and sufficient time to carry out a thorough investigation (Ref. 2), and understands that you want him to check the obvious with such an investigation.

References

  1. Mistakes forensic engineers make.  Posted June 20, 2013. http://www.ericjorden.com/blog/2013/06/20/mistakes-forensic-engineers-make/
  2. 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/