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, fortunately - 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:
- Consulting expert
- 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:
- Oral report
- Written report
The oral report can be presented in one of two ways:
- Factual oral consulting report
- 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:
- Factual written consulting report
- 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.
- How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system. Posted May 1, 2014
- Reducing the cost of forensic investigation – it’s being done now by default not by plan. Posted September 22, 2014
- Peer review in forensic engineering and civil litigation. Posted November 26, 2013
- A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013
- 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