Make sure your expert knows about this Rule before he starts his investigation. Particularly the sub-section on the content of an expert’s report. (Ref. 1) Abiding by the Rule, as required by the judicial system, may increase the time spent gathering data – the forensic engineering investigation, and also the time spent analysing the data and writing the report. Increased time means increased cost.
This is possible – higher costs, for the small to medium size forensic investigations typical in Atlantic Canada and I suspect across the country. Certainly when these investigations are complex.
Experts are unlikely familiar with the Rules in the same way that lawyers are unlikely familiar with the expert’s field of practice.
Engineers sometimes investigate a failure or an accident and report the cause but stop short of a detailed description of what they did. Particularly the technical analysing and reasoning lest counsel’s eyes glaze over. Many lawyers just want an answer – “and spare me the details”. This might be the case when the engineer is retained as a consulting expert rather than a testifying expert.
Knowing about the Rule and that it requires more comprehensive reporting doesn’t mean estimating the cost of the forensic investigation is any easier. (Ref. 2) It just alerts counsel and the expert to the information that must be reported and that costs may be higher.
1. Things leading to the opinion
The expert’s report, according to the Rule, must include everything the expert regards as relevant to the expressed opinion. This approximates a full engineering report.
Everything means that the report contains all of the following information to support the opinion (I have expanded and added to the statements in the Rule according to how engineers investigate failures and accidents):
- Identify and describe in detail the steps and tasks carried out during the investigation and the purpose of each.
- Describe any research carried out.
- List and describe the data obtained from each task.
- Analyse the data from each task and any research – its nature, what it means, how the data from the different tasks are related to each other, and how each is related to the failure or the accident.
- Fully explain the reasoning leading to the opinion.
- Describe a test(s) to formulate or confirm the opinion.
- State the degree of certainty with which the opinion is held.
- State any qualification put on the opinion because of the need for further investigation or for any other reason.
- Reference all the literature and other material consulted in arriving at the opinion.
- List the documents and other information acquired to prepare the opinion.
This is comprehensive reporting. It takes time and it can be expensive particularly in a complex case.
2. Things leading to a different opinion
But the Rule also requires that the expert’s report draw attention to anything that could reasonably lead to a different conclusion. If “drawing attention” to “anything” means identifying and investigating other interpretations of the data, or follow-up investigations, then including the listed information on these things takes time. It may not mean exhaustive investigating and reporting but even a little more adds to the cost of an expert’s opinion..
Experts may not expect such comprehensive report requirements. It’s important to give an expert a heads-up at the time he is being retained and before he starts his investigation. I was given a copy of this rule by counsel shortly after it was published – after I had carried out a forensic engineering investigation but before I had written my report. It turned out okay but we like to know about such requirements before we start an investigation.
- Nova Scotia Civil Procedure Rule 55, sub-section 55.04
- A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts. Posted November 20, 2013 (Contains blogs on estimating the cost of forensic investigations)