Is there an elephant in the room?

Is there something that we should talk about that prevents carrying out a thorough forensic engineering investigation? Or at least acknowledge that it’s an issue?  We counsel and forensic engineers and scientists, the justice system’s experts?

(There is something.  And Judge John Sopinka, Supreme Court of Canada, had the solution in 1995: – retain an expert “…early in the life of a case”)

The elephant

I’m thinking that what needs to be talked about – the elephant – is inadequately funded forensic investigations and the reason for this.  Actually, not so much inadequately funded investigations, but learning about the inadequacy after some preliminary forensic work has been completed and invoiced.

Work like an initial reading of the documents and a visual examination of the site. Work at the real front-end of an investigation that identifies the key tasks that must be carried out to properly address the technical issues.

For certain, the preliminary work sometimes indicates the direction an investigation will go – the likely cause of a failure or an accident, but that’s a bonus if subsequent investigation confirms the initial assessment.

In a sense, there’s nothing wrong with having inadequate funds – there are limits to everything.  We know that justice is expensive in our society.  It’s finding out about this expense after the investigation has started – usually, at the very least, several months after counsel has taken the case, and sometimes – too often, years after.

Suddenly, it’s learned that forensic investigation can be expensive.  And this greater expense was not known when counsel took the case and assessed the worth of the file to the practice or estimated the costs to the client.  Suddenly, the worth of the file or the client’s budget is being threatened.  This is difficult to talk about.

What happens then?  Often enough, counsel decides against further investigation. Sometimes without finishing off with a simple calculation – a few hundred dollars in additional fees in one case I know of that would resolve a key issue and technically strengthen a case immeasurably.

Another time without doing a simple high school averaging of measurements to quantify what both plaintiff and defendant observed during field tests.

And, most sadly of all, a case where the technical data from preliminary forensic work clearly and easily demonstrated that counsel is suing the wrong party.

Where did the elephant come from?

He was on the move as soon as the case was taken

The expense often wasn’t known because an expert wasn’t consulted about forensic investigative costs when the case was taken by the legal practice months or years before. The elephant was on the move then.  All that was needed after that – to get the elephant in the room, was some preliminary forensic work and then an invoice.

This doesn’t help

It doesn’t help when counsel estimates the cost of forensic work by looking at past expert costs for different cases, forgetting that you’ve got to compare apples with apples when assessing costs.  You’ve got to know the tasks involved in an investigation and the cost to carry them out.  These tasks and costs vary for the different kinds of forensic investigation.

The cost of some cases

The fees for one of my cases was $1,300.  My involvement quickly stopped the hemorrhaging of the client’s funds which had reached $140,000 for various experts in two years – engineers, a scientist, a land surveyor, and lawyers.  All, including the lawyers, were being guided by one questionable, revenue-driven, technical “expert”.

At the other end of the scale, fees and expenses for another case were about $83,000 to investigate the catastrophic failure of a bridge and permanent disablement of a driver. The site was a five hour drive from the office and several visits were necessary.

Similar costs were incurred investigating the inadequate underpinning of a structure – the more we investigated, the more problems we found to be followed up on.  But, another inadequate underpinning problem cost quite a bit less, about $37,000, to investigate and oversee repair.

A landslide that affected several properties cost $44,000 in fees and expenses.  A flooding problem, $10,500.

The preliminary investigation of a fatal MVA cost $33,000 – just the preliminary work.  But it was subsequently found that this work was enough to answer the one technical question: – did a pile of soil on the highway contribute to the accident?  I was glad because the field testing was dangerous; I had put the testing on hold pending getting safety measures in place.

If memory serves, a good many forensic investigations seem to cost between about $5,000 and $35,000.  I’m sure experienced civil litigators handling more complex cases see a similar spread to the cost of experts, with the occasional rogue case coming in considerably higher – or lower.

For non-technical counsel to estimate the cost of an expert for a new case based on such a spread – with the occasional rogue in the wings, is asking for trouble.  Best that the technical expert take the risk and do the estimating early.  And there is risk for the expert in estimating costs considering the difficulty in doing this. (Refs 1 and 2)

The justice system and engineering guidelines say, in no uncertain terms, “Do thorough investigations!”

We are also required by guidelines published by our learned societies and associations, as well as by the justice system, to be thorough and exact in our engineering and scientific investigations.  This takes time which must be taken into account when estimating the cost of a forensic investigation.  If we don’t the elephant inches closer to the room.

The same as counsel is required to take time and to be thorough in their legal investigations. This if the client is to be well served by the justice system.  Sometimes – actually quite often, really, there is no case to argue or it’s weak until the technical questions have been answered.

Getting rid of the elephant

How do we get rid of the elephant, get him out of the room?  How do we prevent the surprise of inadequate funds after some preliminary forensic work has been completed and invoiced?  How do we prevent the threat this poses to the worth of the file to the practice or to the client’s budget?  How do we prevent short-circuiting a thorough forensic engineering investigation?

It’s not easy – the cost of forensic work is notoriously difficult to estimate. (see again Refs 1 and 2, also Refs 3 and 4)  But retaining an expert at the time a case is considered – rather than months or years later, will at least get you informed advice on the cost of forensic work, including the difficulty estimating costs and the possibility of surprises later.

Judge John Sopinka, Supreme Court of Canada, was clear about this in 1995 when he recommended: - retain an expert “…early in the life of a case”.  (Ref. 5)  This because of the complex issues that counsel, the courts, and the justice system had to deal with at the time, and just didn’t understand.  Society is even more complex today.  And David Stockwood Q.C. echoed this advice in 2004 in the 5th edition of his well regarded text, Civil Litigation: A Practical Handbook.

If we do this – retain an expert early, the elephant will not get in the room.  We will all be on the same page talking to one another about the real cost of forensic investigation early in the case.

  1. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2012
  2. Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2012
  3. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
  4. How experts are retained in civil litigation is changing – and the changes are good for counsel and the justice system.  Posted May 1, 2014
  5. Please, Counsel, retain an expert “early in the life of a case”. Posted March 27, 2014
  6. Reducing the cost of forensic investigations – it’s being done now by default not by plan Posted September 22, 2014