Update and re-issue of the role of a professional engineer ….
I decided to update and re-issue this article after recently blogging on the changes taking place in civil litigation. Also after blogging on the importance of well-written expert reports. (Ref. 1, 2, 3) The article first appeared on June 26, 2012.
These changes are resulting in greatly increased emphasis on the expert’s report. If well-written, the report will result in the technical evidence being presented and responded to quickly and clearly by all parties. The dispute will be resolved sooner.
These changes will also encourage retaining an expert as early as possible. Because, of course, you can`t have an expert report without a forensic investigation, and you can`t have an investigation until you have an expert. The sooner an expert is consulted and an investigation carried out - if needed, the sooner the dispute can be resolved.
Some cases may be over before they begin. If an expert is consulted when counsel is deciding on whether or not to take a case, the expert’s comments may show that the case is technically weak or too costly to investigate thoroughly.
To summarize, I’m updating this blog because of the following effects that changes in civil litigation are having:
- Increased emphasis on the expert’s report
- Earlier retention of an expert
The role of a professional engineer …
Civil litigation tentatively begins when counsel meets with a potential client. The purpose is to gather information to help him or her assess the merits of the case and decide if he should take it.
A professional engineer could have a role in this meeting, or in consultation shortly afterwards. This is particularly the case if the legal and technical issues are likely to be complex requiring extensive engineering investigation to support a reliable opinion.
I’ve seen cases that should never have gone forward. In some cases because of a lack of technical merit. In others because of the client’s limited financial resources to bear the cost of the forensic engineering investigation necessary to determine the cause of the failure or accident. These would be costs learned about after a claim was filed – and only after a professional engineer was retained to investigate the technical issues.
During the meeting, counsel obtains information from:
- The client’s description of the problem and the damages he believes he has incurred,
- Documents provided by the client,
- Knowledge of witnesses,
- Answers to questions raised by the lawyer,
- The lawyer’s past experience of similar matters, and,
- Comments by an expert on the technical issues.
One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case. An expert can make or break a case and if thought to be necessary should be chosen carefully and retained early (Ref. 4). Even if only retained briefly to confirm counsel’s assessment of technical merit, in the event counsel decides not to take the case.
If a professional engineer is not included in the meeting, then counsel might confer with one later during his review of the facts prior to making a decision about the case. The engineer would, of course, review the information from the meeting, particularly the documents, and identify the technical issues prior to advising the lawyer.
The engineer can also provide preliminary comment on the forensic engineering investigation needed to address the technical issues and to formulate an opinion on the cause giving rise to them. The engineer would outline some of the tasks that would need to be carried out during an investigation and the time involved – factors that can have a significant impact on the cost of litigation.
If the technical issues are complex – and the engineer can certainly help determine that, the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs. The client’s ability to bear these costs is important information in counsel’s decision on taking the case. An engineer can have a role in assisting counsel make that decision.
A professional engineer’s tasks during counsel’s first meeting with the client
Following are 18 tasks that a professional engineer – or any expert for that matter, could carry out during or shortly after counsel’s first meeting with a potential client. Completing some or all of these would assist counsel’s decision about taking the case:
- Attend and audit the meeting for technical issues, or meet with counsel shortly afterwards
- Review client’s descriptions of the problem and the reasons for claiming damages
- Read available documents
- Review witness’ statements as soon as taken by counsel
- Begin identification of potential technical issues
- Begin identification of technical documents counsel must seek
- Familiarize counsel on the typical stages and tasks in a forensic engineering investigation, the possibility of unexpected follow-up investigations, the fact that investigations can sometimes lead in unexpected directions, the time required, and the difficulty estimating costs (See a bundle of blogs, Ref. 5)
- Outline a preliminary engineering investigation and the major tasks involved
- Speculate on follow-up investigations
- Identify specialists that may be required
- Speculate on the order of magnitude of forensic investigative costs
- Identify physical evidence, tangible exhibits and possible demonstrative evidence
- Brief counsel on parties that might be involved in the potential litigation and their relationship to the technical issues
- Provide information that would facilitate early settlement
- Note unfavourable evidence for the potential client’s claim
- Remind counsel that only one side of the story is known. The opponent’s story and documents could give rise to a small shift in the technical facts and alter the complexion of the claim
- Tentatively assess the technical merits of the case with respect to the potential parties
- If counsel decides to take the case, and position letters are appropriate, ensure that demand letters, and responses, are based only on well-established technical facts and data as known at the time
- How experts are retained in civil litigation is changing – and the changes are good for counsel and the justice system. Posted May 1, 2014 http://www.ericjorden.com/blog/2014/05/01/how-experts-are-retained-in-civil-litigation-is-changing-and-the-changes-are-good-for-counsel-and-the-justice-system/
- Guidelines for writing an expert witness report. Posted May 17, 2014 http://www.ericjorden.com/blog/2014/05/17/how-to-write-an-expert-witness-report/
- The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012
- Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
- A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted 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/