Peer review costs can be controlled

Peer review adds to the cost of civil litigation, there’s no question about that.  But an acceptable cost if the expert carries out a thorough forensic investigation in a complex case and prepares a well-written report - and there are no deficiencies in either.  And if there are, a worthwhile cost finding this out early in the case.

Still, an extra cost.  I thought, what can be done about this extra cost?, as I was writing last week’s blog on the need for peer review.  I realized there is an answer and there’s information out there already. (Refs 1 to 4. Ref. 1 is a good read)

The problem is that most failures and accidents are small, fortunatley - not catastrophic, and the potential damages are also small.  The cost to determine cause and to report findings can be significant relevant to the damages claimed by the injured party or the worth of the file to the law firm.  The problem is not unique to Atlantic Canada.  The Advocates Society, Ontario recognizes ’affluent’ and ‘less affluent’ cases.

Yet the justice system needs the technical issues investigated and explained regardless the size of the case – sometimes there is no case until these issues are investigated.  And forensic engineers must do the same thorough investigation and write the same exacting report, also regardless.

Judicious selection of how an expert is used in all cases but particularly in the smaller, less affluent cases is the answer.

In the past, experts have been retained in one of two ways:

  1. Consulting expert
  2. Testifying expert

Today and in future – almost without exception, experts will serve as consulting experts in the resolution of disputes rather than testifying experts.  This is because of changes in civil procedure rules governing experts.  These are designed to expedite resolution of disputes and reduce the number of cases going to trial.

The consulting expert will submit one or the other of two basic reports according to Counsel’s instruction:

  1. Oral report
  2. Written report

The oral report can be presented in one of two ways:

  1. Factual oral consulting report
  2. Interpretative oral consulting report

(A factual report gathers together all the data from the office, field, and laboratory investigations and submits this to Counsel – without analysis and interpretation)

(An interpretative report analyses and interprets the data and draws conclusions on the cause of the failure or accident.  It can be quite comprehensive, particularly in a complex case)

(The cost of a factual report is easier to predict and control.  The cost of an interpretative report is difficult to predict and control.  Sometimes very difficult because you don’t know what you’re going to find at the site of an engineering failure or accident if you follow the evidence, (Ref. 4))

A factual oral consulting report to retaining Counsel could be quite inexpensive compared to a written report to the requirements of civil rules.  A peer review of the factual oral report could also be relatively inexpensive compared to a review of a written report.  The peer might discuss the facts with the expert – orally, and the investigation supporting these.

Similarly, an interpretative oral consulting report could be relatively inexpensive with or without a peer review compared to a written report.  More expensive, of course, because of the interpretative element, but still less than a written report.

The written report can also be presented in one of two ways:

  1. Factual written consulting report
  2. Interpretative written consulting report

The relative costs of these two ways of writing a report on the forensic engineering investigation are apparent – more for interpretative and less for factual, and more or less still with or without a peer review.

So, the cost increases from least – a factual oral consulting report without peer review, to most – an interpretative written consulting report with peer review.

How Counsel retains an expert – there are 8 different ways; count them – is a key to reducing the costs in less affluent cases while seriously considering peer review.  Retaining an expert at the beginning of a case is another key.  I did not include testifying expert because this role is less likely in future.

***

It’s important to remember, ”An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 5)  And, I might add, can turn questioning and rebutting the report before discovery into a cakewalk, a tsunami, if the report is distributed to all parties.

References

  1. How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system. Posted May 1, 2014
  2. Reducing the cost of forensic investigation – it’s being done now by default not by plan. Posted September 22, 2014
  3. Peer review in forensic engineering and civil litigation. Posted November 26, 2013
  4. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013
  5. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report, Preface, Page xiii, SEAK Inc., Falmouth, Mass. 2014

 

 

Peer reviewing an expert’s report ensures the justice system gets what it needs

That is, thorough forensic investigations and reliable, objective expert reports.

Civil procedure rules governing expert’s reports are strict. (Ref. 1, 2)  You can’t have a good report without a thorough investigation.  Peer reviewing an expert’s report ensures a thorough investigation.

Peer review is needed but isn’t being provided.  I’ve read four poorly written expert reports in recent years based on inadequate investigation and reasoning.  Really, very little investigation in most cases and no reasoning in all cases.  I’m sure there are others out there.

Peer review is needed in forensic engineering every bit as much as in scientific research.  Research papers are published in reputable journals only after they are peer reviewed.

Peer review is provided for in the remediation of petroleum contaminated sites.  The provincial governments in Atlantic Canada reserve the right to peer review a report on the remediation of a contaminated site according to the Atlantic risk based corrective action process (RBCA). (Ref. 3)

There’s no question the standard of care for expert reports must be as high as that for research papers and reports on remediated sites.

I published an item on peer review in the past (Ref. 4) but was reminded of it when I was reviewing a recent handbook on expert work. (Ref. 5)  Also when I was reviewing the RBCA process recently.  Peer review is referenced 38 times in the index of the 626 page handbook.  The authors discuss peer review on dozens of pages.  Their guidance in this text – and previous handbooks on report writing (Ref. 6, 7), is based on review of 100s of civil cases.

***

In science, peer review is the process by which an author’s work is checked by a group of experts in the same field – his peers, people of similar qualifications, experience, and competence.  They make sure it meets the necessary standards before it is accepted and published. (Ref. 8)  It constitutes a form of self-regulation by qualified members of a profession within the relevant field (Ref. 9).

Put another way (Ref. 10), peer review is specifically geared to (my parenthetic additions):

  • Catch any potential biases of the primary examiner (the forensic engineer),
  • Promote the examiner’s heightened diligence (promote thorough forensic investigation)
  • Pursue each important clue (follow the evidence), and,
  • Recognize the clinical significance as it surfaces (objectively recognize and accept the findings).

Peer review has been practised a long time in science and is essential to obtaining good science.  Forensic engineering must receive the same rigid peer review before going to the justice system to further ensure the system gets what it needs.

***

It would be easy to include a simple form of the peer review process in the investigation of a failure or accident in the built environment.  As easy as Counsel getting an independent consulting professional engineer to review the investigation and report of the investigating engineer.  To check that the investigation was carried out to the standard of care existing at the time and that the report meets the requirements of rules governing expert reports.  From that simple start, gradually move to a more comprehensive process over time.

Professional engineering societies have similar guidelines for those practicing in the forensic geotechnical, foundation, and structural engineering fields (Ref. 11 to 14).

***

The adoption of the peer review process will be driven in part by the increased emphasis on preparation of a report for the justice system - and less emphasis on discovery and trial, as a result of civil procedure rules such as Rule 55 in Nova Scotia.

The rule spells out the requirements of the expert.  They are exacting in requiring that the expert is thorough, reliable, and objective, and reports his evidence and reasoning, and also states what other conclusions might have been drawn from his evidence. (Ref. 1, 2)

***

Better that Counsel arrange to have his expert`s report and investigation peer reviewed and catch any deficiencies that might be present, than an expert for an opposing party do this.

References

  1. Counsel, tell your expert about the Rule governing expert opinion. It’s important. Published September 11, 2015 at www.ericjorden.com/blog
  2. Nova Scotia Civil Procedure Rule 55, sub-section 55.04
  3. Atlantic Risk Based Corrective Action process (RBCA), 2015
  4. Peer review in forensic engineering and civil litigation.  Published November 26, 2013
  5. Mangraviti, Jr., James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Be a Successful Expert Witness: SEAK’s A-Z Guide to Expert Witnessing, SEAK, Inc, Falmouth, MA 2015
  6. Mangraviti, Jr., James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc, Falmouth, MA 2014
  7. Babitsky, Steven and Mangraviti, Jr., James J., Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, SEAK, Inc., Falmouth, MA 2002
  8. Merriam-Webster Dictionary, 2016
  9. Wikipedia, Google
  10. The Forensic Panel, Google
  11. Lewis, Gary L. ed., Guidelines for Forensic Engineering Practice, ASCE, the Association of Civil Engineers, Virginia, 2003
  12. ASCE, Guidelines for Failure Investigation, Virginia, 1989
  13. Ratay, Robert T., Forensic Structural Engineering Handbook, McGraw Hill, New York, 2000
  14. ASFE, Association of Soil and Foundation Engineers, A Guide to Forensic Engineering and Service as an Expert Witness, 1985
  15. Merriam-Webster Dictionary, 2013
  16. Wikipedia, Google

 

The year in review: The Top 10 Business Ethics Stories of 2015

You might be interested in the item “The year in review: The Top 10 Business Ethics Stories of 2015“.  A common theme is questionable business ethics. See following:  http://businessethicsblog.com/2015/12/31/top-10-business-ethics-stories-of-2015/

The list was prepared by Chris MacDonald and Alexei Marcoux, co-editors of Business Ethics Highlights.  www.businessethicshighlights.com

These are not stories about “…minor rule-bending, fiddling along the margins…” to use Dr. MacDonald’s expression but major ethical breaches.  And some well planned like the outright lying by Volkswagen to the regulators and it’s customers.

Chris has been blogging on business ethics for 10 years – since November 2005, at www.businessethicsblog.com.  He’s got an international reputation in this field.  (Ref. 1)

Following are links to Chris’ two most recent blogs:

Dec. 15 http://www.canadianbusiness.com/blogs-and-comment/loblaws-selling-homeopathy-is-junk-science-and-bad-corporate-ethics/

Nov. 24 http://www.canadianbusiness.com/blogs-and-comment/how-design-can-help-companies-make-better-ethical-choices/

Reference

  1. Most influential business ethics blog; Chris MacDonald, Ph.D, Blogger.  I posted this item about Chris on April 4, 2013