Basic advice to U.S. experts supports simple, approximate methods in Canada

Reasonableness jumped out at me when I read some words of advice from a US attorney to experts regarding Criteria for Admissibility of Expert Opinion Testimony Under Daubert and Its Progeny: (Ref. 1)

“Remember the three R’s:

  • Reliability, 
  • Reasonableness and
  • Repeatability.

Every step of the expert’s investigative process should pay attention to these three factors:

  • The reliability of the investigative procedures used;
  • The reasonableness of the conclusions formulated; and
  • The ability to demonstrate, through repetitive analyses, that the investigative method and resulting opinions are scientifically valid and worthy of being presented to the trier of fact. — Elliot R. Feldman, Esq., Cozen O’Connor”

(Quote altered to break up a big paragraph and make more readable)

These factors allow for simple, approximate methods of investigation if decided appropriate by a reasonable person.  Thank heaven, because not everything is clean and pretty, and exact and precise in forensic engineering investigation.  Think everything to do with the messy ground, and the structures supported there, and the natural environment in general

I defended simple, approximate investigative methods in a recent blog on the standard of care that had a reasonableness theme.  (Ref. 2)

For example, the drag sled method for determining the skid resistance of a floor – the simple coefficient of friction of the floor material in high school physics.  You drag a known weight across a floor, measure the drag, divide the one by the other and you got your coefficient of friction/skid resistance.  It can’t get more simple and scientific than that.

The method meets the criteria for the admissibility of expert evidence in the U.S. and I’m sure in Canada.  It’s reliable in giving an approximate answer based on repetitive testing that would be noted in the conclusions. Approximate investigative methods are reasonable in some situations, and scientifically valid.

As an experienced civil engineer, I like reasonable considering the failures and accidents we must investigate in the sometimes messy built and natural environments.  Explaining these investigations to non-technical people and the trier of fact is often the demanding part.

References

  1. As reported in Expert Communications, Dallas, Texas, August, 2019 (A consulting firm that provides marketing services to experts in the US)
  2. Is there a case for a multi standard of care? No.  Posted June 27, 2019

Why do I blog? One reason: A blog is sometimes like a mini expert report in story form

OVERVIEW

I’ve blogged for seven years now, two or three times a month to tell you about a field of engineering that I enjoy and that contributes to dispute resolution and claim settlement - a nice way to practice.

I want parties to a dispute or claim to know something about the nature and methods of forensic engineering investigation and about managing costs when you retain an expert.

You think-on-paper when you blog and that’s good practice when you must synthesize and analyse engineering evidence, draw conclusions and form an opinion.  Blogs are essays on a topic, sometimes technical, and not unlike mini expert reports in story form.  .

I also blog because I like that creative feeling when you write – producing a piece of literature that didn’t exist before.  There’s 200 of my blogs/essays/mini expert reports out there now varying from a few 100 words to several 1,000.

The following nine (9) reasons and comments elaborate on why I blog.  There’s a summary and references at the end if you’re quite busy and haven’t got a lot of time.  Reference 10 is a good read about managing cost.

The REASONS

REASON 1

I want parties involved in dispute resolution or insurance claim settlement to know something about the nature and methods of forensic engineering investigation – what you get when you retain an expert.  Not how to do the work, just to have some idea of what we do to help you solve your problem.

Comment: For example, the surprising value of one of the newer investigative methods like a low flying drone fitted with a GoPro camera taking video at the scene of a failure or accident in the built environment.  Older methods like terrain analysis – identifying features on the ground from the air and how they relate to your problem, but doing this much more reliably from a few 100 feet high rather than several 1,000 like in the past.  And simple methods like simple, high school math.

An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site and where the fuel oil went.  I was surprised at what I saw.  Aerial video of another site is helping me assess if the site is contaminated decades after a spill.  And still another, the geometric design and safety of a site.

Simple high school math was key to learning the disputed height of a feature in the landscape.

Smart phone video of the reenactment of a power tool accident showed how the accident likely happened.

I want to describe how we carry out reliable investigations, observe, test, study, synthesize, analyse, think-on-paper, draw conclusions and formulate objective opinions.  Then present reliable evidence to the parties involved in a dispute or claim, and to the court or tribunal, in simple, non-technical English.

Forensic civil engineering is not high tech but it does require reliable work and good expert report writing.

Why is Reason #1 a particularly good reason?  It’s because parties to a dispute have obligations with respect to the expert’s report or affidavit. (Ref. 1)

For example, parties in a litigious matter 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)

As well, parties to dispute resolution and claim settlement have an obligation to monitor  cost in view of the often small to medium size-sized disagreements in the Atlantic provinces – and their sometimes less than affluent nature.  This is because the extent and cost of an all-stages forensic investigation is often similar regardless of whether the engineering failure or personal injury is small, medium-sized, catastrophic or terrible.

It’s difficult for parties to a dispute or loss to carry out their obligations, and also monitor costs, without some understanding of how experts 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 reliable investigation and rendering a well reasoned opinion, as expected of the expert.  At the very least, following routine investigative procedures in an effort to ensure that no stone is left unturned. (Ref. 3)

We don’t know when we start what we’re going to find that we must investigate – the surprise, follow-the-evidence situations.  Every failure and accident is different. (Refs 4, 5 and 6)  Not enough time and money is no excuse if we miss something.

Parties to a dispute or loss can assist, with some understanding of forensic work, by identifying and selecting the relevant technical issues early with the assistance of the expert.  This can be a big cost cutter.

REASON 3

To help parties to a dispute understand the importance of retaining an expert early in all matters, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential issue 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 is 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 instructed me on the relevant technical issues 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, reliable investigations, well thought out expert opinions, 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 an expert’s report.  And excellent books, in general, on writing well.  I’m not sure these are being consulted to the extent they should.  I recently saw poorly written reports by a forensic firm claiming to have 18 different experts on staff.

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 these types of 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 his eyes.

REASON 6

I want to increase my understanding of the dispute resolution and claim settlement processes.

Comment: Experts have a duty to acquire some understanding of these processes.  The justice system expects this in civil litigation, for example.

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.  I was assisted by senior counsel in preparing drafts of two of these blogs.

It’s also been an eye-opener to learn of the dichotomy between the party’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 good 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 party 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 seven years now 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 claim consultant said, “I read every one”.  It’s hard to beat testimonials like that.

I mentioned above that two senior counsel helped me with two of the blogs on the role of professional engineers in the civil litigation process – critiqued the blogs 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 – Chris is 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.  They came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In seven years, only about 10 readers asked to be removed from my distribution list.  This was 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, I’m filling it and making a contribution to the dispute resolution and insurance claim settlement processes.

REASON 8

“It’s my soap box”, one colleague said.

Comment: There’s some truth in that particularly when I see inadequate forensic investigations, poorly written expert reports and questionable practices.  I vent but you don’t know it because it’s well disguised.  It feels good afterwards, and there’s almost always a lesson in my remarks.

REASON 9

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/social, balanced-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.

SUMMARY

In summary, the reasons and comments on why i blog might look like this:

  1. To give you an idea of forensic engineering methods that help resolve disputes and settle claims
  2. Help you learn why forensic engineering is sometimes expensive
  3. Explain the importance of retaining an expert early and ways this can be done cost effectively
  4. To understand better myself how addressing technical issues resolves disputes and claims
  5. Increase my understanding of the forensic engineering field and how it  contributes to the resolution of disputes and the settlement of claims
  6. An obligation to my readers who enjoy the short essays on topics of mutual interest
  7. My soap box for venting on practices in our respective fields that are not good
  8. I like to write, to create something that didn’t exist until I put pen-to-paper
  9. For that satisfied feeling on creating a piece of literature that didn’t exist before

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
  10. Principles governing the cost control of dispute resolution and claim settlement involving experts.  Posted July 30, 2019