I was struck recently by the different ways experts engage with the parties to a dispute or those needing a forensic investigation. I counted eight (8) different ways in comments by experts I consulted. Some good and conforming to well regarded project management practices, others not so much. How an expert is engaged affects how well costs are managed.
(See a list in the Appendix of the different parties that could be involved in a dispute or forensic investigation)
Seeing how it’s done now drove home the need for principles governing the cost management of dispute resolution and forensic investigation involving experts. I’m identifying these principles and will post them later.
Early last month I sent a draft of the principles to experts and practitioners in different fields and asked them to review it. These people included colleagues in engineering, traffic accident investigators, several civil litigation lawyers, a town planner and a published author. I got good comments and suggestions and I’m incorporating these where relevant.
The reviewers’ comments indicated several ways experts engage with the parties to a dispute. I’ve listed these below. The methods vary from project management techniques, as characterized by frequent reporting of cost-to-date and estimated cost-to-complete, to methods that risk the expert being perceived as agreeing to a fixed price for his services. There’s not a lot of order to the following list and I’m sure it’s not exhaustive – it’s just an indication of how experts engage with clients in Atlantic Canada::
- Fee basis after the retaining party briefs the expert, the expert reads the documents and then estimates the cost of the forensic investigation. Frequent updates on current costs and estimated cost-to-complete.
- Fee basis. No reporting. No cost estimate.
- Engage for the budget set by the retaining party, after learning the budget and the party’s theory of the case.
- Fee basis if the client has taken the case on a fee basis. Declines the commission if the client has taken the case on a contingency basis.
- Fee basis and frequent oral reporting to the party on the findings at successive stages of the forensic investigation, and after being instructed by the party to carry out each stage of the investigation.
- Fee basis after all investigation is complete and all damage repair and remediation is done and all costs accurately known.
- Fee basis for preliminary investigation like reading documents and a visual examination of the failure or accident site sufficient to estimate costs for subsequent stages. Then do successive stages as directed by the retaining party.
- Fee basis plus frequent reporting of current and estimated future costs.
This list begs the question:
- Why the parties to a dispute or forensic investigation don’t engage with an expert early,
- on a simple fee basis,
- with frequent reporting of the evidence-found-to-date,
- the cost-to-date, and
- the estimated cost-to-complete?
If how an expert is engaged affects the cost of dispute resolution and forensic work then the bulleted procedure is effective – engage an expert early and get frequent oral reports on everything. And engage an expert only as long as required by the judicial process and the needs of the party.
Parties to a dispute or a forensic investigation can include one or more of the following::
- Advocates and civil litigation lawyers
- Insurance company representatives
- Claims managers and consultants
- Insurance adjusters
- Owners of damaged property
- Builders and contractors
- People injured in accidents in the built and natural environments