Managing the cost of civil litigation when experts are involved

Forensic investigation of the cause of a failure or accident in the built environment doesn’t always require an exhaustive investigation of conditions at a site.  And civil litigation doesn’t always need to bear the attendant higher costs.  Sometimes but not always.

There is a point at which the cost of the data obtained and the time required to get it outweigh the benefit of the data, the increased certainty of the opinion and the quicker resolution of a dispute.

The answer is early involvement of an expert in consultation with counsel.  And the two working together to identify the key technical issue(s) in a case.  It works best when counsel seeks to understand these issues early and rises to his responsibility to explain them to the judicial system. (Ref 1)

I’ve had some cases that settled in a heart beat after the investigation of a single, simple technical issue.  One case settled in four months after 11 years of litigation.  There have been other investigations that have been longer and more expensive.

There is a judgement call on the necessary level of investigation.  Should this technical issue be checked out or that evidence followed – as in the seemingly cast-in-stone edict, “Follow the evidence”?  The call is best made by an experienced expert and a suitably informed counsel.  The cost of civil litigation is often less when this is done wisely and well.

It also sometimes helps if counsel visits the site and “gets his hands dirty and mud on his boots” – sees what’s out there and some of the investigative work being done and why. (Refs 2, 3)  I know of one slip and fall accident that was cinched because counsel came to the site, sat down and watched me work.  In this case, carrying out two quite unusual tasks that carried the day.

Cutting costs can’t be done in a cavalier manner.  I’ve seen this happen too and the injured party likely get the short end of the stick in one case.  Litigation is expensive, and reliable, expert data costs money, but it can be managed.  It doesn’t always need to be exhaustive.


These thoughts came to mind a few days ago when I was reviewing the principles governing Phase II ESAs (environmental site assessments) as given in an ASTM standard. (Ref. 4) These environmental assessments have strict requirements.  I know, I’ve done them – but there are some “that do not … require an exhaustive assessment”.   When I read that in the standard, I was reminded: That’s the way it is in forensic engineering investigation.


  1. Principles governing communicating with testifying experts.  The Advocates’ Society, Ontario, June 2014.  Posted June 11, 2015
  2. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
  3. Counsel: Your case benefits when you visit the scene of a personal injury or engineering failure.  Posted April 30 , 2016
  4. ASTM E1903-11 Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process, ASTM International, West Conshahecken, PA, 2011




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