“…Lot of preparation beforehand – a lawyer just doesn’t walk into a court“. That comment by Ron Pizzo, Pink Larkin, resonated with me during his talk at an APTLA conference in Halifax early last month. I thought, “…Lot of forensic investigation beforehand – an expert just doesn’t render an opinion and write a report”. The line in Romeo and Juliet came to mind, “A rose by any other name…” (Ref. 1)
(APTLA: Atlantic Provinces Trial Lawyers Association)
The title of Ron’s talk was ”Wrongful Dismissal Primer: What to Know When an Aggrieved Employee Walks into your Office.” And the abstract: “What you need to know to quickly assess a case and the advice you should give a potential client during the initial meeting to set realistic expectations.” ”
I’m not a lawyer but Ron’s talk seemed to be a good primer. He listed several tasks, issues and cases to consider in assessing the merits of a case. I’m sure he was comprehensive to the extent possible in the time available.
Ron’s talk might be broadened to embrace an assessment of the merits of civil litigation cases in general, including those involving an expert. Or his talk used as an inspiration.
I posted a blog on the role of a professional engineer – any expert for that matter – in counsel’s initial assessment of a civil case. (Ref. 2) A “what you need to know” item from the technical point of view. Included was a list of 18 tasks that an expert could do to help counsel assess merit. There was some emphasis on identifying realistic expectations for both counsel and the potential client, particularly about the cost of civil litigation involving an expert.
In an initial meeting, a lawyer, in most areas of practice, is being asked by a person who feels wronged if they are entitled to damages. For example, Ron’s aggrieved employee. Or in the case of the built environment, by a person, an owner, whose property was damaged or by a person who was injured in an accident.
In the case of property, the difficulty is that awards are dependent on the cause of the property damage or personal injury and the party (s) responsible. For an aggrieved employee, Ron outlined the issues and questions on which a case is dependent - what’s involved in getting a “feel” for the merit of the case.
Experts also have experience, questions to ask and cases to go to, in their respective fields, that point to possible causes allowing them to help lawyers get a feel for a case.
For example, it’s well known in forensic engineering that many foundation failures are due to inadequate geotechnical investigation of the foundation soils before design and construction. As well, engineering societies and various authors have published on the different ways structures can fail – total collapse or component malfunction - based on a review of the engineering literature. (Refs 3, 4 and 5)
A general primer would be a valuable resource - one co-authored by a legal expert and a technical expert, that helps civil litigation lawyers get a “feel” for a case and set realistic expectations for a potential client. At the end of the day clients also need to know that a lawyer must prepare and an expert must investigate.
- Shakespeare, William, Romeo and Juliet, Act II Scene II
- The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012. Updated May 21, 2014
- Nicastro, David H., editor, Failure Mechanisms in Building Construction, ASCE Press, American Society of Civil Engineers, 1997
- Guidelines for Failure Investigation, American Society of Civil Engineers, 1989
- Janney, Jack R., Guide to Investigation of Structural Failures, American Society of Civil Engineers, 1986