Judge John Sopinka, Supreme Court of Canada was clear on this matter of retaining experts:
“Much of the civil litigation today, both civil and criminal, involves subject matter which is not readily understood by the average juror or judge. Expert evidence serves to simplifly these matters which so commonly crop up in our complex and scientifically oriented society …
…due to the pervasive use of experts, counsel undertaking a case of any complexity must consider, early in the life of the case, whether there are areas in which an expert can be of assistance.” (Ref. 1. Italics mine)
And Judge Sopinka said this back in 1995 – 19 years ago! Society is even more complex and scientific today, and more litigious.
“Expert witnesses play an important role in modern litigation.” Said in 2004 – 10 years ago. (Ref. 2)
The technical issues can make or break a case. The sooner you retain an expert the better, even if only briefly - preferably as soon as when you are deciding whether or not to take a case. (Ref. 1, 3)
Your decision about taking a case should reflect an assessment of the technical issues involved. Your assessment should reflect input from an expert in identifying the technical issues and estimating the cost to investigate these.
Assess whether or not there are, in fact, any technical issues, the number of technical issues, their nature and complexity, some feel for the forensic investigation needed, some feel for the cost to investigate, the file’s worth, etc.
Do this in spite of the considerable difficulty assessing the extent and cost of a forensic investigation. Take a stab at it with the assistance of an expert and the resources that are out there (Ref. 4) – and do it early in the case like Judge Sopinka recommended.
Who better qualified to help you make that assessment than the expert who might do the forensic work for you?
All the while as you assess the need and consider retaining an expert remember the different roles of the lawyer and the expert (Ref. 5):
- The lawyer’s function is to advocate on behalf of the client’s position, to shape his or her client’s position into the legal stance that is likely to prevail in negotiation or court.
- The expert’s role is to thoroughly investigate the cause of a failure or accident, describe and explain the technical issues, the investigation, and the evidence, and present reliable, objective opinions without regard to the outcome of the legal dispute.
For certain, whatever you do, determine first if you and the justice system will need input from an expert, and talk to an expert in deciding this – early in the case.
I was prompted to blog on this issue when I learned of a litigator who under-estimated the total cost of forensic investigation by 50% in one case - seemingly, not too bad, but read on, and by a factor of 300% in another - shocking regardless the circumstances. And those percentages were just for the preliminary forensic work in both cases – that is, relating counsel’s estimated total costs to the expert’s invoiced preliminary costs!
The expert in both cases was retained several years after the lawyer took the cases.
Needless to say, the expert’s findings – technically favourable to the plaintiff in both cases, may not be used because they would need to be disclosed to opposing counsel. Think it works like that. And that would involve the expert again with additional cost.
In another case, definitely the wrong party is being sued, if only the technical issues are considered. This is based on a very conclusive, visual site assessment by an engineering expert of a quite striking and unusual failure. Seeing the highly probable cause of the problem – not the exact cause, mind you, and the party responsible, was too simple.
In the same case, there is definite damage to another structure on the same site but the party involved has not been named. As near as I can gather, the owner of this structure is not even aware of the damage and his possible right to compensation.
Why these mistakes in these cases?
In the first two cases I suspect because an expert was retained by counsel several years after the cases were taken. And counsel did the retaining with little or no appreciation of the investigations that would be required by the expert, and the cost of these. And no expertise in estimating these technical costs to relate to the estimated worth of the file.
In the third case, I suspect that the plaintiff is unfamiliar with civil litigation and the need and the cost of an expert. And his counsel doesn’t know how to use an expert to get the case going in the right direction and in the most cost effective way.
I’m certain the people involved in these three cases are capable people in their own right, but not in planning and estimating the costs of forensic investigation. That’s what experts are for.
I could go on and cite other cases from my personal experience and from that of other experts.
But, to be fair, I can also cite cases of a bad choice of an engineering “expert” and terrible costs ensuing for the client because of inadequate and bloated engineering investigation.
In one case, managed by one engineering “expert”, $140,000 total fees were submitted and paid to one law firm, one land surveying firm, and three engineering firms. A simple investigation and peer review for $1,200 by another expert quickly demonstrated that there wasn’t a problem caused by others and the client didn’t have a case.
For certain, that’s a blog for another day.
Please, Counsel, confer with and retain a well regarded expert early in the life of the case, for the sake of your good file management and your client’s best interests.
- Sopinka, John, Judge, Supreme Court of Canada, The Use of Experts, Chap 1, The Expert: A Practitioner’s Guide, Volume 1 by Matthews, Kenneth M., Pink, Joel E., Tupper, Allison D., and Wells, Alvin E. Carswell 1995
- Stockwood, David Q.C., Civil Litigation: A Practical Handbook, 5th edition, Thompson Carswell 2004
- The role of a professional engineer in counsel’s decision to take a case, June 26, 2012 http://www.ericjorden.com/blog/2012/06/26/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case/
- A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts, November 20, 2013 http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/
- Lewis, Gary L., editor, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003