(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.
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.
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.
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.
- 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/
- 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/
- 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/
- Babitsky, Steven and Mangraviti, Jr., James L., Writing and Defending Your Expert Report, SEAK, Inc., Falmouth, MA, 2002
- Stockwood, Q.C., Civil Litigation, 5th, Thomson Carswell Ltd, 2004