Unusual data increases reliability in forensic investigation

I mentioned in the last year how you can form an initial hypothesis about the cause of a failure or accident with very little data – a few pictures, some knowledge of construction, etc. (Refs 1, 2, and 3)

And in 2012 how construction inspection and maintenance are weak stages in the design-construction-maintenance life-cycle of a structure.  Less attention is paid to these stages, particularly maintenance. (Refs 4 and 5)

I thought last Friday just how accurate an initial hypothesis can be with some hard, cold data from an unexpected source.  I was reading the National Post about the frequency of elevator failures in Canada as found during an investigation by The Canadian Press. (Ref. 6)

Give a forensic engineer information like the following – or similar data on other problems experienced by your clients - and he’s going to quickly tell you the likely cause of your client’s failure or accident – quickly give you a reliable, initial hypothesis:

“Everyday Canadians are trapped in faulty elevators.  Countless others are inconvenienced.  And it’s getting worse.  More than 12 calls per day to fire fighters last year in Ontario – a total of 4,461.  Double the number of calls in 2001.  It’s a crisis now, not one coming later.

“Toronto led the way last year with about 2,862 rescue calls to 911.  Montreal had 1,532 calls.  Vancouver, 428.  Ottawa, 314 in 2014.

Nancy Lean had a terrifying experience in 2014 as she rode a noisy elevator from the second floor to the basement at York Regional Police Headquarters in Aurora, Ontario.  It jolted when it hit the bottom.  She was okay but she’s nervous in elevators now.” (Ref. 6)

I was also lucky in September, 2014.  I was riding the elevator from an upper floor in Maritime Centre, Halifax – the passport office, when it got stuck mid-floor, high up the building.  We called on the emergency phone and eventually the elevator started moving again and we got off.  I wasn’t nervous and I still use elevators - possibly because many are clean and modern-looking with a nice view of the city from the upper floors.  Some are not, however.

“Insiders told the National Post the real culprit is aging equipment and structural issues, not the increase in elevators.  Maintenance is the problem.

“Thirty years ago a technician serviced 35 to 45 elevators per month for $1,000 per elevator.  Today a maintenance contract is maybe worth $600 and each technician services 100 elevators.  Technicians are loaded up with more and more service calls and have less and less time to do proper maintenance on each.” (Ref. 6)

We don’t need to look far to see the results of poor maintenance in other structures.  An 18 km stretch of Highway #2 outside Moncton, NB, where you are forced into the passing lane because the driving lane is in such poor condition.   A multi-million dollar house in Halifax that has stood empty for several years while the paint peels and the steel railings rust.  A parking garage collapses in Elliot Lake, Ontario.  A bridge falls down in Cape Breton.

Knowing the design and construction process and getting windfall data like that in the National Post makes for an easy call by the forensic engineer on the cause of an elevator failure – a reliable, initial hypothesis.

It’s important during forensic work to be alert to the availability of data from atypical engineering sources at the initial stage of an investigation.

It’s still just initial thoughts on cause – and subject to revision, but quite reliable considering the nature and source of the data in this case.  Reliability is important when counsel is assessing the merits of a case at the start of civil litigation, or a manager is assessing an insurance claim.

Reference

  1. Wind, construction crane and inadequate cross-bracing caused Edmonton bridge failure. An initial hypothesis.  Posted March 27, 2015
  2. Bridge failure in litigation due to inadequate bracing – City of Edmonton.  But, inadequate for what?  Posted March 15, 2016
  3. Thinking about the cause of “wavey”, sagging floors in a building and how Counsel benefits.  Posted April 6, 2016
  4. Cause of the roof collapse at Elliot Lake.  Posted July 10, 2012
  5. “Maintenance”: The Achilles’ heel of the built environment, and sometimes the cause of failures and accidents.  Posted June 12, 2014
  6. Perkel, Colin, What goes up doesn’t always come down.  National Post, page 1, July 22, 2016 reporting on an investigation by The Canadian Press.

Why do I blog on forensic engineering investigation?

I blog because I want you to know about an interesting field of engineering that I enjoy and that contributes to the resolution of disputesa nice way to practice.  Also, an engineering practice that is relevant to the field of practice of many of you.

To some extent, ours is a litigious society and one with a lot of insurance claims involving engineering failure and personal injury.  Inherent in this situation are technical obligations for counsel and their need to know something about forensic investigation.  Some cases don’t go forward or claims settle until the technical issues are identified and investigated by an expert.

In many cases, an important duty for counsel is ensuring the technical evidence is properly understood by the court or tribunal. (See the Comment on Reason #1 below, also Ref. 1) There are other reasons I blog – I’ve identified and listed eight (8) below, but this is an important one.

I identified the following reasons by reviewing the 134 blogs that I have posted in the last four years.

Why do I blog?

Reason #1 I want to describe the nature and methods of forensic investigation for counsel and insurance claim consultants.  Including some of the newer methods like a low flying drone fitted with a camera to photograph the scene of an engineering failure or personal injury.

(An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site.  I was surprised at what I saw)

I want to describe how we carry out independent investigations, observe, analyse, draw conclusions and formulate objective opinions.  Then present quality and reliable evidence to counsel and the court or tribunal in simple, non-technical English.

Comment: Why is this a particularly good reason?  I’ve learned that counsel has obligations with respect to the expert’s report or affidavit. (Ref. 1)

In many cases, counsel must learn about the technical subject to which the evidence relates in order to identify the relevant technical issues.  He or she has an important duty in the presentation of technical evidence to ensure it’s properly understood by the court or tribunal. (Ref. 1)

Counsel also has an obligation to monitor the cost of civil litigation in view of the often small to medium size-sized cases in Atlantic Canada – and their sometimes less affluent nature.  This is because the extent of an all-stages forensic investigation is often similar regardless of whether the engineering failure or personal injury is small, medium-sized or catastrophic.

Costs can be controlled to some extent by how an expert is retained and how early.  There are at least eight (8) different ways. (Ref. 2)

It’s difficult for counsel to carry out their obligations to the court or tribunal and also monitor costs without having some understanding of how engineers do their work.

Reason #2 I also want to help readers understand why a forensic engineering investigation can be expensive.

Comment: The expense has everything to do with carrying out a thorough investigation and rendering a reliable opinion, as expected of the expert by the court or tribunal.  For certain, following routine investigative procedures in an effort to ensure no stone is left unturned. (Ref. 3)

As well, we don’t know when we start what we’re going to find that we must investigate.  Every failure and accident is different. (Refs 4, 5 and 6)  And then there are the surprise, follow-up investigations.  Not enough time and money is no excuse if we miss something.

Counsel can assist – with some understanding of forensic work - by identifying and selecting the relevant technical issues early in the case with the assistance of the expert.  Then having the expert focus on these in an effort to control costs.

Reason #3 To help counsel understand the importance of retaining an expert early in all cases, affluent and less affluent alike, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential case are being assessed. (Refs 7, 8)

Comment: At present, experts are too often retained months or years after a case is taken and after the cost of the forensic investigation has been estimated by other than the expert.  This contrary to the advice of some of the most senior members of the legal profession. (Ref. 9)

For example, I was retained by counsel 11 years after a personal injury.  I visually examined the site and reported on what could have been done to prevent the accident.  The case settled four (4) months later.  To give counsel credit, he carefully instructed me on the technical issues to investigate which reduced the cost in this case.  This type of instruction doesn’t happen very often.

Reason #4 To help the justice system understand what they should be getting for the money spent on forensic investigation: That is, thorough investigations to ensure the quality of the evidence and the reliability of an expert’s opinion, and well written reports.

Comment: Rules governing experts have placed greater emphasis on the investigation and the expert’s report, to encourage the settlement of cases without going to discovery and trial.  There are excellent guidelines on forensic investigation and also on writing expert’s reports.  And excellent books, in general, on writing well.  I’m not sure these are being consulted to the extent they should.

Reason #5 I want to understand the forensic engineering field better myself, to learn by writing the blogs and “thinking on paper” – particularly, on how addressing the technical issues supports the resolution of disputes.

Comment: Like all of us, I’m learning all the time.  Most recently about the value of low cost, initial hypotheses on the cause of problems based on very limited data.  This task could save counsel money – as long as it’s remembered they are initial hypotheses.

For example, I hypothesized with considerable confidence on the cause of a catastrophic bridge failure during construction (Edmonton) - based on study of photographs in a newspaper.  In another, the cause of the sloping, sagging floors in a multi-story building (Halifax) - based on a visual examination of the floors and knowing how buildings are constructed.

Cases are also being settled today based on simple verbal reports after the technical issues are addressed.  In some cases not even a verbal report because counsel is on site and sees the results of the expert’s investigation unfold before him.

Reason #6 I want to increase my understanding of the civil litigation process.

Comment: Experts have a duty to acquire some understanding of the process.  The justice system expects this of us.

I researched and posted 10 blogs on the role of a professional engineer in the civil litigation process for the benefit of counsel and their clients. (Ref. 8) I learned a lot during this research.

It’s also been an eye-opener to learn of the dichotomy between the claimant’s right to justice and the expense of getting it.  Associated is the conflicting interests of the different parties to the process.

For example, the court, while encouraging counsel to expedite cases and control costs, wants quality evidence and a reliable opinion, which takes time and money.  The expert needs to do thorough investigative work to get this evidence.  He expects to get paid according to his schedule of fees, his level of expertise and the responsibility he bears.  If the claimant has retained the expert on a fee basis, he doesn’t want to spend any more than necessary.  If counsel has taken the case on a contingency basis and retained the expert, he wants to protect the worth of the file to his firm.  Quite a mix of interests.

Reason #7 Because of a sense of obligation to my readers who have seen the blog for four years and perhaps have come to expect it – to fill a void that was there.

Comment: Feed back suggests you do get something from my descriptions of the nature and methods of forensic engineering, and my comments on related matters.

A senior lawyer in Atlantic Canada said, “I love that stuff..!!”.  Another senior legal chap on the east coast commented, “…like reading them.”  And an insurance claims consultant said, “I read every one”.  It’s hard to beat testimonials like that.

Two senior counsel helped me with two of the blogs on the role of professional engineers in the civil litigation process – critiqued them before their posting.  One of these noted that experts are invaluable to civil litigation.

A fellow who blogs on business ethics, Dr. Chris MacDonald, Toronto, and has an international reputation in his field – he’s on a list of 100 influential business people that includes Barack Obama - saw fit to advise his twitter followers of my blog.

A monthly periodical on engineering construction – with an international distribution of 10,000, sought permission to publish one of my blogs.  The issue had a forensic engineering theme.  Then they came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In four years, I`ve only had about 10 readers request removal from my distribution list.  This because they were retired or the subject did not relate to their field of practice.

Overall, quite a good reception – suggesting there was a void, and that I`m making a contribution to the civil litigation process and to insurance claims management.

Reason #8 For that satisfied feeling that comes from creating something – a piece of literature that did not exist before

Comment: A few months after I started blogging in June, 2012, I noticed a feeling of satisfaction after posting an item, a mild elation.  It was subtle but there.  On reflection, I realized I felt good because I had created something – a piece of literature that didn’t exist until I put pen to paper.  So, I blog for that satisfied, creative feeling.  You all know how elusive that feeling is in our busy work-life, balance-challenged lives.

On further reflection, I realized the feeling was also about finally publishing information on a topic or technical issue useful to my readers – finally letting it go.  I like my blogs to be as clear and well written as possible - in a sense, like well written, mini, expert reports.

References

  1. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014
  2. Peer review costs can be controlled.  Posted January 22, 2016
  3. Steps in the forensic engineering investigative process with an appendix on cost.  Posted July 15, 2013
  4. What do forensic engineers investigate in Atlantic Canada.  Posted October 9, 2014
  5. Forensic engineering practice in Eastern Canada.  Posted May 7, 2015
  6. How many ways can a building fail and possibly result in civil litigation or an insurance claim?  Posted July 10, 2014
  7. The role of a professional engineer in counsel’s decision to take a case.  Posted June 26, 2012
  8. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
  9. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell

 

 

An expert’s fees and forensic engineering investigation

The following describes the different fees – the hourly billing rates, charged by professional engineers for consulting services in Nova Scotia.  It’s important for you to know about these because many forensic experts are professional engineers. Time/fee based billing is also the best way of overcoming the uncertainties in forensic investigation without jeopardizing the quality of the investigation.  It’s also the best way of monitoring the cost of civil litigation.

Consulting fees reviewed bi-annually by CENS

I thought of sharing this with you after attending the annual general meeting (AGM) of the Consulting Engineers of Nova Scotia (CENS) last month.  I’m a past president of the Society.  CENS is a registered Society representing the majority of consulting engineers in Nova Scotia.  It’s a member-organization of a Canada-wide association of consulting engineering firms.  There are 62 firms registered with CENS this year, and another firm has just applied for membership.

CENS reviews billing rates bi-annually and suggests average rates like those below   that are representative of those charged by members for different levels of responsibility. (Ref. 1)

Time/Fee-based forensic investigations ensure quality

Time-based methods of billing overcome the many uncertainties that exist at the start of an engineering project – and often as a project progresses, particularly if construction is involved.  A forensic engineering investigation of the cause of a failure or a personal injury accident is an engineering project with a lot of uncertainties.  Not least are unknown follow-up investigations.

I surveyed consulting engineering fees a few years ago and found similar rates elsewhere in Canada and the New England states to those charged in Nova Scotia at the time.  I suspect you would find similar rates elsewhere in Atlantic Canada today.

Principals, specialists and senior engineers rendering individual services on assignments for which they are particularly well qualified could be billed at higher rates than those shown (about 25% higher in New England).  Such assignments include forensic engineering investigation and providing expert testimony (Refs 1, 2)

Often enough, justice can’t be served until the technical issues are resolved, nor a party’s case argued effectively.  A case often hinges on the outcome of the forensic investigation – argument enough for retaining an expert early.  It’s critical that it’s well done by an experienced engineer.  The fees are understandably higher as a result considering the responsibility borne by the engineer.

Monitoring costs

When a forensic investigation is initiated on a time and expense basis, it’s important that Counsel or the claims consultant monitor costs closely without jeopardizing the quality of the services.

This can be done – monitor costs and maintain quality at the same time - by understanding the stages involved in an investigation and the roles an expert can take. (Ref. 3)  You can do this in less affluent cases – the norm in Atlantic Canada, as well as in the more affluent. (Ref. 4)

It helps to recognize that the great majority of cases don’t go to trial - I understand more than 95% - they stop at the expert report stage, or a little before the written report.

It’s also important to understand that the cost of some of the many stages of a forensic investigation are difficult if not impossible to estimate. (Refs 5, 6 and 7)  Then there are sometimes completely unknown follow-up investigations.  In situations like this it’s important to monitor costs at each stage.  There’s project management and cost control literature out there to help you do this. (Ref. 8)

Also remember that you can retain an expert in at least eight (8) different ways.  From a quite low, easily monitored total fee to something more. (Ref. 9)

Suggested hourly rates

(In the following, Leadership/Supervision is short for Leadership Authority and/or Supervision Exercised)

1. Engineer in Training……..$90/hr  Experience: 0 to 4 years.  Few technical decisions called for and these will be of a routine nature with ample precedent or clearly defined procedures guidance. Leadership/Supervision:  May assign and check work of technicians and helpers.

2. Junior Engineer………….$100/hr  Experience: 4 to 7 years. Decisions made are normally within established guidelines.  Leadership/Supervision:  May give technical guidance to junior engineers or technicians assigned to work on a common project.

3. Intermediate Engineer…$115/hr  Experience: 7 to 10 years.  Makes independent studies, analyses, interpretations and conclusions.  Difficult, complex or unusual matters or decisions are usually referred to more senior authority.  Leadership/Supervision:  May give technical guidance to engineers of less standing or technicians assigned to work on a common project.  Supervision over other engineers not usually a regular or continuing responsibility.

4. Senior Engineer………….$145/hr  Experience: 10+  Recommendations reviewed for soundness of judgement but usually accepted as technically accurate or feasible.  Leadership/Supervision:  Assigns and outlines work; advises on technical problems; reviews work for technical accuracy, and adequacy.  Supervision may call for recommendations concerning selection, training and discipline of staff.    

5. Specialist Engineer…….$170/hr  Experience: >15 years.  Makes responsible decisions not usually subject to technical review.  Takes courses of action necessary to expedite the successful accomplishment of assigned projects.  Leadership/Supervision:  Outlines more difficult problems and methods of approach.  Coordinates work programs and directs use of equipment and material.  Generally makes recommendations as to the selection, training, discipline and remuneration of staff.

6. Principal Engineer………$190/hr +  Experience: No limit.  Makes responsible decisions on all matters, including the establishment of policies subject only to overall company policy and financial controls.  Leadership/Supervision:  Reviews and evaluates technical work, selects, schedules and coordinates to attain program objectives; and/or as an administrator makes decisions concerning selection, training, rating, discipline and remuneration of staff.    

***

It’s important for you to know about these suggested fees – a good average of all firms in Nova Scotia.  And to know they’re very close to those charged else where in Atlantic Canada and not far off those charged in New England.  You can then focus on retaining an expert early in a case, monitoring costs closely and not being surprised.

This is important considering the uncertainties inherent in forensic investigation, the difficulty estimating costs, the less affluent nature of many of the cases in Atlantic Canada, and the fact that even the less affluent cases require the same thorough, objective investigation.  It’s important to ensuring the quality of the forensic investigation is not jeopardized.             

References

  1. Consulting Engineers of Nova Scotia (CENS), Directory 2015/2016, Halifax, NS
  2. Babitsky, MBA, Alex, Babitsky, JD, Steven, and Mangraviti, Jr., JD, National Guide to Expert Witness Fees and Billing Procedures, SEAK, Inc, Falmouth, Mass.
  3. Steps in the forensic engineering investigative process.  Posted July 15, 2013.
  4. The Advocates Society, Ontario
  5. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2012.
  6. Why the difficulty estimating the cost of forensic engineering investigation?   Posted September 1, 2012.
  7. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013.
  8. Project Management Institute, A Guide to the Project Management Body of Knowledge, Newton Square, Pennsylvania, USA (One of many good references on project management and cost control)
  9. Peer review costs can be controlled.  Posted January 22, 2016.