Lawyers need even more continuing education, particularly in the practice of civil litigation involving experts. We touched on this when I was talking recently with David Gauthier of Gauthier Law, Saint John, NB. I had identified two topics I thought worthy of seminars at an APTLA conference (Atlantic Provinces Trial Lawyers Association). These were monitoring the cost of civil litigation involving experts and expert report writing.
If continuing education is important within one’s discipline, it seems some continuing education is important at the interface between one’s discipline and others. Particularly others like an expert’s work. Some civil litigation doesn’t go anywhere till the expert’s work is done.
My forensic engineering investigative work has benefited from learning about the civil litigation process and what the justice system expects. It occurs to me that all participants in this process could benefit from more knowledge about the expert’s work - what’s going on at the interface between our respective disciplines.
David and I were chatting at the request of APTLA’s executive director, Libby Kinghorne. I had got in touch with APTLA about attending their recent conference in Halifax as an observer. I wanted to learn how APTLA organize and conduct their seminars so I could recommend suitable topics at the interface for future conferences.
I think APTLA should do this based, for example, on:
- My experience investigating the cause of failures and personal injuries in the built environment in Atlantic Canada and overseas,
- An advocate’s obligation to understand the expert’s work in a case and be able to explain this to the justice system,
- Rule changes governing experts, like Rule 55 in Nova Scotia,
- Principles governing advocates communicating with experts
- The justice system’s interest in expediting the resolution of cases, and.
- What’s taking place elsewhere in North America.
I did attend the conference: It’s All Wrongful: Death, Dismissal, Conviction & More held at the Delta Halifax earlier this month, November 4th. It was good. I was impressed by the comprehensiveness of the subject matter, the tight, packed-full schedule, staying on schedule, the good turnout from the Atlantic region – 83 attendees and 13 sponsors, 12 interesting exhibitors and the food fare.
I’ve got a new respect for wordsmiths; they can focus on a topic, say only what needs to be said then get on to the next interesting topic. APTLA obviously have experience organizing these conferences.
The conference on the Friday was an intense, all-day continuing education conference by well prepared local speakers and one, at-times, quite rousing American speaker, Tom Vesper, West Atlantic City, NJ who seemed bent on challenging the locals. The junior lawyers had something to say too and they were well prepared. There were lots of thoughtful questions and comments from the floor suggesting the audience was engaged and interested.
I’ve identified a number of topics and issues from my blog site that I believe are worthy of an APTLA conference. I started blogging in June, 2012 about the nature and methods of forensic engineering for non-technical readers. It wasn’t long, however, before the issues at the interface between our specialties began to appear in my writing. Some of these – quite a number, actually, are listed below gleaned from the 141 articles that I’ve published to date plus some ideas I picked up during the recent APTLA conference:
- The advocate’s responsibility to know something of the expert’s work and able to explain the technical issues to the justice system
- The “life” cycle of a structure, particularly the design and construction phase
- Monitoring the cost of civil litigation involving experts
- How to reduce the cost of civil litigation
- The eight different ways – at least eight, of retaining an expert in keeping with the worth of the file
- The high standard required of expert report writing compliant with Rules like 55 in Nova Scotia
- Review of rules governing experts in Canada
- Peer review of an expert’s report
- Peer review of a forensic investigation
- The less affluent nature of the small and medium size cases typical of Atlantic Canada
- The “generalist” engineer in Atlantic Canada
- Case history of a small, less affluent case/forensic investigation
- Case history of a catastrophic, affluent forensic investigation
- Typical stages in a forensic investigation (Like with lawyers who don’t just walk into court, “Lot of investigation is necessary beforehand – an engineer just doesn’t walk into court and give an opinion”)
- Why the difficulty estimating the cost of forensic investigation?
- Guidelines forensic engineers refer to in doing their work
- Determining the standard of care in forensic investigation
- The importance of an expert staying in his/her sand box
- The 1,600 – at least, different types of experts in North America
- Mistakes experts make that affect lawyers
- Mistakes civil litigation lawyers make that affect experts
- Lawyers visiting the site involved in their case – valuable!
- An expert’s role in assessing the merit of a case
- The use of drones in forensic photography
- How to carefully select an expert. Counsel, know thy expert…!!
Quite a mouth-full. But, look closely and see how relevant many of these are to the continuing education of civil litigation lawyers. Several of these topics with a similar theme could be addressed in an APTLA conference with a format similar to the one a couple of weeks ago.
For example, a specialty litigation afternoon could address the following:
- Structural collapse litigation
- Component malfunction litigation
- Slip, trip and fall accidents
- Traffic accident reconstruction
- Environmental contamination
- Earthworks failure, e.g., landslides
Key note speakers from away could be invited from:
- SEAK, Inc., Falmouth, Massachusetts
- Expert Communications, Houston, Texas
- Elsewhere in the US
If for no other reason do this – address topics at an APTLA conference at the expert-civil litigation interface - to increase the chances the justice system gets the expert it needs and the plaintiff gets justice and the damage award s/he deserves.