Would I be perceived as biased?

Would I be perceived as biased if I told counsel about literature that discusses both the technical and non-technical issues – including legal issues, of a problem in the built environment?

A while ago, I was assessing the state-of-the-art of a science relevant to a case I’m working on.  I was interested in the factors affecting the test results of a material property.  Also the current understanding in science of this property and it’s determination.

I was also interested in the development of various devices over the years to test/measure this material.  And the accuracy and reliability of devices on the market today.

For me, it was all about the science and forensic engineering.

I was surprised in reviewing a technically, very up-to-date piece of literature on this material property to find it also addressing the interests of owners – and litigators who might be acting on their behalf, in connection with problems to do with such a material.  This literature was current and treated both technical and non-technical issues very comprehensively.

I was also surprised to find in a more dated piece of literature that it was all about the interests of the property owners, the users of the property, and their counsel – and very little about the technical issues.  The title and abstract had misled me.

So, here was very informative literature in which the parties involved in the case I was working on would be quite interested.  And possibly the insight gained would resolve the dispute earlier.

My role in this case was to serve the justice system with reliable technical data and an explanation of this data, and to do this in an unbiased, objective manner.  Counsel’s role is to serve the best interests of their client.

In a perfect world I should be able to inform all parties about this literature.

I’m not sure what would have happened if I had informed my party, and so I hesitated.  If I informed counsel and the information was not distributed would I be perceived as biased?

If I refrained and waited until I was instructed to draft a report on the matter then I would reference the literature as a matter of course.  That would seem to solve such a problem because a report is not usually requested by counsel unless they are comfortable distributing it.  Maybe there was no question about bias.

But still, it`s an interesting question: “Would the expert be perceived as biased if he told counsel about literature of considerable legal interest and little or no technical interest?”

 

How many ways can a building fail, and possibly result in civil litigation or an insurance claim?

How about 209 different ways?  A lot to say the least.  Some result in catastrophic collapse of a building.  Others result in inadequate performance of different components of a building.

And they’re all known and understood by engineers, and all have been categorized and tabulated in considerable detail.  (Ref. 1)

(Note: This blog comments on a good, easy-to-read, reference book for civil litigators and insurance claims personnel.  One that is easy to obtain as an interlibrary loan from Memorial University, NFLD.  It will help you understand the technical issues in your cases and claims)

These different ways of failing can all be prevented with adequate planning, design, construction, and maintenance of a building.  One definition of engineering design might be the following: - ’Identify all the ways a building or structure can fail, then address each and make sure it doesn’t’.

Easy to understand

The different ways of failing can be fairly easily understood by civil litigation lawyers, claims managers and consultants, and property owners.  Knowing this should make your work easier - in understanding an expert’s report and discussing the technical issues and findings with him.

A very good, reference book

David Nicastro, in his book, ‘Failure Mechanisms in Building Construction’, has cataloged all 209 different ways a building can fail, and then gone on to tabulate and cross reference them.  This is all done in quite readable text.  (For Failure Mechanisms, read, the technical cause of failure - it’s easier)

I came across his book while researching the literature on a case I’m investigating now.

The detailed tabulation lists each cause alphabetically down the page then – across the page - notes the building material affected and how each shows up – manifests itself in the building material.

Finally, reference is given to a case history elsewhere in the book illustrating many of the different ways of failing.  There is even a glossary of forensic engineering terms to assist understanding the technical cause further.

An example of how the book can be used

(The item in red is one of the 209 ways a building can fail – selected from the alphabetical list down the page.  The items in blue – column headings across the page - note the distress in the building when the failure occurs, the materials affected, and one or more typical case histories)

For example, a client’s structure experiences:

  • Differential foundation settlement – the way in which his structure failed, the technical cause.
  • The distress to the structure is manifested as unwanted movement and distortion.
  • The materials and systems affected by this movement are the structural systems and foundations.
  • A case history in Nicastro’s book is the differential settlement of the temporary foundation support of a bridge deck during construction.

Another example, a client’s structure experiences:

  • Corrosion – the way in which a component failed, the technical cause.
  • The corrosive distress to the structure manifests itself as an unsightly appearance
  • Affecting the component’s materials, the metals.
  • Case histories in the book include a steel masonry shelf, and reinforcing steel in a concrete wall façade.  Both corroded with the infiltration of rain water.

Your eyes will not glaze over reviewing this cataloging then the tabulation.  You will feel good at such readily available and easily understood technical data next time you have litigation involving a building failure.

A finishing touch - a good bibliography with sections on civil litigation and ADR 

A finishing touch – if you want additional information, is an annotated bibliography of forensic engineering that includes a separate reference to most of the 209 different ways a building can fail.

The bibliography is arranged in four categories, two of which, in addition to covering the above references, is a little closer to the basic interests of counsel and insurance claims personnel, albeit with a technical bent:

  • Litigation and Expert Testimony
  • Alternative Dispute Resolution (ADR)

Book based on decades of engineering experience

David Nicastro’s text is a good reference and a big help to all of us who must deal with the failure of a building.  It’s based on Mr. Nicastro and his co-author’s decades of experience investigating the cause of building failures.  It’s been well researched, and it’s published by a well respected civil engineering association.  ASCE has been serving civil engineers and the public in North American since the mid 1,800s – about 160 years.  They publish good material.

This listing and categorizing makes me think…

This listing and categorizing for buildings makes me think that similarly exhaustive lists could be prepared for the many ways that each of the different civil engineering structures could fail.  There’s a quite broad categorizing in a couple of texts but not to the same exhaustive detail as in Nicastro’s book.  (Ref. 2 and 3)  This, possibly, because there are many more buildings in the world than civil engineering structures like bridges, dams, roads, retaining walls, wharves, and causeways.

I will refer my clients to Mr. Nicastro’s book in future.

Reference

  1. Nicastro, David H., ed., Failure Mechanisms in Building Construction, ASCE Press, American Society of Civil Engineers, Reston, Virginia 1997 (Readily available by interlibrary loan from Memorial University, Newfoundland)
  2. Greenspan, Howard F., et al, Guidelines for Failure Investigation, ASCE Press, American Society of Civil Engineers, Reston, Virginia 1989
  3. Janney, Jack R. et al, Guide to Investigation of Structural Failures, ASCE Press, American Society of Civil Engineers, Reston, Virginia 1979, 1986