Why the surprise about the mud slide in BC?

I was surprised that a house was built in the path of the mud slide in British Columbia early this month, July 4th.  Built right in a mud channel.  Particularly in view of the fact that the Ministry of Transport reported that more slides were possible – they knew. (Ref. 1) Why were houses approved for construction in such an unstable area?  Who is liable?

Assessing the potential for a mud slide in an area and quantifying the risk for residents is not rocket science.  Someone had done sufficient assessment to warrant the report of the Ministry.

You don’t see the messy stuff mentioned as such in engineering books but it’s there.  It’s classified as very soft clay and silt with a little sand and gravel and a few cobbles.  The analytical procedures are in the books too – reliable slope stability methods of analysis understood by experienced engineers.

So, what’s the big surprise about the mess in BC and why were people allowed to build there?  We’re not talking something small here.  We’re talking about a slide that engulfed a house to a depth of several feet according to pictures on line.  And moving fast too as seen in one video of a fellow running out of the way just in time.

You don’t need a lot of data to do such an analysis either and the data is readily available in the public domain:

  • The history of mud slides in the area and the rain fall at the time
  • Topographic maps to give you the shape and slope of the ground, and the location of mud channels
  • The results of terrain analysis identifying features relevant to mud slides, and evidence of past events (screen grabs from video taken from low flying drones has had a big impact on the engineering analysis of terrain in an area)
  • Soil maps (surficial geology maps) to tell you that a mixture of clay and silt underlies the area

Engineers have done this type of assessment often, and everywhere throughout North American and around the world.  And based on the news and Transportation’s report, likely for this area as well.

So why the surprise?

Why would a person even mistakenly build a house in a mud channel?  I can’t help but think there would be local knowledge that would kick in even if the government was silent.  Would you build a house in a river channel or on a flood plain between wet seasons?

Reference

  1. Notes taken from a CBC News report online.  “Debris flood, a mix of mud, gravel and cobbles 200 km east of Prince George, BC in a flood prone area 1:30 Saturday morning July 4, 2020.  Waist deep.  Second one that day nearby.  Ministry of Transport said more likely in the area”

Can you “calibrate” a forensic expert?

What happens when we calibrate something, and can the procedure apply to a person?  For example, a forensic expert?  Does it happen unbeknownst to an expert?

I said in a recent blog that this happens to an expert when he visually examines the site of a failure or accident in the built environment – he gets calibrated to the site. (Ref. 1)

Then I began to think about it.

This description of a visual examination came to me when I remembered hearing years ago about an American engineer asking to have some pits dug at a site that he was visually examining in Newfoundland, so he could “…get calibrated to the site”.  The phrase resonated with me at the time.

This was George F. Sowers, a professional engineer with an international reputation in foundation and geotechnical engineering. (Ref. 2)  All of us in this field of practice knew of him.  This was a serious foundation problem if Dr. Sowers was called in.

Still, I thought, I better check the meaning of calibrate in the event Dr. Sowers stretched it a little.

The Merriam-Webster dictionary gives several definitions of calibrate, one of the last in a list of five is most applicable to Sowers use of the word:

“…to adjust precisely for a particular function, e.g., calibrate a thermometer”

Sowers was getting himself adjusted precisely to the site so he could function in a particular wayas the forensic engineer investigating the cause of the problem at this particular site.

You might say this is wandering away from a dictionary’s meaning. (Ref. 3)  I don’t think so.  One thing I’ve learned blogging on the nature and methods of forensic engineering in the past eight years is that words are taking on new shades of meaning all the time.

Using the word calibrate in a recent blog to describe what happens during a visual site assessment just came out of me from deep down inside.  It was natural.  Also knowing it was used this way by a quite reputable and experienced engineer years ago.  And it’s supported by Merriam-Webster.

The word calibrate does suggest preciseness, and that’s a big element in a visual assessment of a site – you can’t plan a forensic investigation of a failure or accident until you’ve seen the site.  Think, a picture (seeing something) is worth a 1,000 words.

Can you “calibrate” a forensic expert?  Yes.  It happens as a matter of course when s/he does a visual assessment of a site before commenting on how to determine the cause of the accident or failure, if more investigation seems necessary.

References

  1. COVID-19 and an initial forensic task aka a visual site assessment, sans social distancing.  Posted June 1, 2020
  2. Sowers, George F., Introductory Soil Mechanics and Foundations: Geotechnical Engineering, 4th edition, MacMillan Publishing Co., Inc, New York
  3. Family Word Finder, A New Thesaurus of Synonyms and Antonyms in Dictionary Form, 896 pg. Reader’s Digest in association with Stuart B. Flexner 1975

 

 

 

Drone photography continues to soar to new uses in forensic investigation

Why do we need terrestrial photography in forensic engineering investigation – ground level photography with hand-held cameras – when we have drone photography?  Aerial photography that can capture the same images from all directions, heights and angles plus distance and close-ups.  And software that can give you numerical values for these quantities?

And more software so you can plan a virtual flight over and around the accident or failure site before you even go there. (Ref. 1)  Then tweak the flight based on what you find after you get your boots on the ground?

Why bother with the expense and incomplete coverage of ground photography when aerial photography can do almost all of it?  (Ref. 2)

These thoughts came to mind during the most recent meeting of CATAIR in Moncton on March 13, 2020 and a talk and demonstration of drone photography by Robert Guertin of Millenium Film & Video Production, Dartmouth, NS.

The CATAIR meeting – the Canadian Association of Technical Accident Investigators and Reconstructionists – was attended by members representing the police, private sector and professional engineers who investigate accidents and failures in the built environment.

Robert described drone photography and what it could do, explained and showed how the equipment has evolved since about 2008 – when drone photography took off – and then demonstrated by flying over the parking lot outside.

My ear caught a remark by one about using drone infrared photography to spot hot spots on the ground during forest fire fighting.  I thought, that’s one more use of drone photography that I can add to my list.

I learned some time ago about farmers flying drones over their crops.  I can imagine crop flying as an excellent use of terrain analysis.  For example, an easy way to learn what areas need irrigation rather than spending money irrigating the entire crop.

I understand drones are being used out west to actually water crops.  Still another use.

The “terrain” being analysed is the top of the crop from a height of a few 10s of feet for what looks dry and what looks okay.  I’m not certain if that’s what’s happening but it could.

I’ve been using drone photography during my forensic investigations for about five years now.  On problems as diverse as:

  • the effect of retaining wall construction on the flooding of a property,
  • determining the presence of fuel oil contamination on new and old sites,
  • assessing road safety,
  • staging a potential traffic accident,
  • collecting data for drafting a topographic plan of a forensic site,
  • re-enactment of a traffic accident – a colleague did this recently.
  • In a sense, I did it years ago during my investigation of the John Morris Rankin accident.  But in this case from the top of a 100 foot high boom supporting the camera man – the “drone” – with a hand-held camera.  I also flew the site of the re-enactment in a sea king helicopter – a large drone?
  • increasing the effectiveness and reducing the cost of a conference call using a DVD of a previously drone-flown site distributed to each participant, (Ref. 3)
  • the potential in the re-enactment of a nail gun accident – I got “aerial” video with my cell phone by reaching high while standing on my toes, but a drone flying 10 feet up would be better – next time, and,
  • the quite unbelievable potential for determining the cause of large cracks in the wall of a recently constructed multi-story building – if only the parties had got to me.

To give terrestrial photography it’s due, considering it has served forensic engineering investigation well for decades, drone photography is restricted to light winds, dry weather and open scenes.

As long as s/he’s dressed for it including dry boots and his camera protected from the weather, the eye-level, ground photographer can plant her boots anywhere, in any kind of weather and in any tight nook and cranny and get the shot.  Including underwater.

Low level drone photography does have it’s limits like terrestrial photography but it has taken off with new uses appearing all the time on the forensic engineer’s plate.  Today, I would not investigate the site of a personal injury, like a slip and fall accident, or a component or catastrophic failure in the built environment, without getting aerial video from a drone.

References 

  1. It’s here, cost effective, efficient aerial video for forensic investigations!  Posted October 18, 2019
  2. A Bundle of Blogs: Aerial video of insurance and forensic sites taken with camera mounted on drones.  Posted October 31, 2019
  3. Conference call on a “drone flight” reduces the cost of civil litigation.  Posted May 18, 2017

It doesn’t rain but it pours guidance on writing expert reports

I thought this on reading the guidance for presenting a claim in the Small Claims Court of Nova Scotia.  I was researching material to do with a case at the time.  You can read the simple guidance at www.legalinfo.org

Experts could do worse than visit this site for more guidance on carrying out a forensic investigation, analysing the results, forming an opinion on cause and presenting their findings in an unbiased, objective expert report.  This is particularly the case when it comes to writing the expert’s report – which has been found wanting. (Ref. 1)

The guidance at this web site states that you need evidence to support a claimEvidence is anything that helps prove a fact important to your case.

Eureka! How is this any different than the evidence needed to help prove the facts supporting your opinion on the cause of a personal injury or a failure in the built environment?

Also quite important in the guide is the note that when you testify in court you’re telling your story.

Keep the forensic story, like the testimony in court, evidence-based, jargon-free and simple:

  1. Tell ‘em what you’re going to tell ‘em
  2. Tell ‘em – with a beginning, a middle, and an end
  3. Tell ‘em what you told ‘em

It’s nice how simple guidance on preparing a claim for Small Claims Court can help us carry out well substantiated forensic investigations and write evidence-based expert reports.  Realizing guidance is needed (Refs 1, 2 and 3) and that there’s detailed handbooks out there (like Ref. 4) should be enough.  The Court’s guide is more of a reminder – a gentle rain rather than a down pour.

References

  1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020
  2. Ridding peer review of potential bias.  Posted December 30, 2019
  3. What good are civil procedure rules governing experts?  Posted January 30,2020
  4. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, 2nd ed, 2014, 560 pg, SEAK, Inc., Falmouth MA, USA

What good are civil procedure rules governing experts?

Particularly if most disputes don’t go to trial or a tribunal?  But, isn’t that the purpose of the rules, to keep disputes out of court?  Like Rule 55 in Nova Scotia?  That’s true, and they do this by setting a high standard for an expert report.  The parties, on reviewing the report, would often enough see their way clear to settle.

However, I wonder if a lower standard of report is now being accepted?  Why pay for a higher standard if the dispute is unlikely to go to trial or a tribunal?

The standard appears to be lower in the Maritimes if a survey I did of seven engineering experts in NS and NB is any indication.  I asked them, To what extent do you see bias and poor analysis and reasoning in rebuttal expert reports?”.  The consensus was almost always. (Ref. 1)  I’m certain, the question could be asked about expert reports, in general, and the reply would be similar.

(I wonder if the bias and poor reasoning we see in some expert reports in the Maritimes appears in some of the reports of the experts surveyed in Ruth Corbin’s pilot study of 152 experts in Canada?  The study noted the expert’s view of their role in the judicial process. (Ref. 2))

The civil procedure rules are a short, simple guide on carrying out a forensic investigation and writing an expert report, but what good are they if they’re not followed?

And why aren’t they?  Cost?  Possibly.  An understandably, poorly informed non-technical client?  Likely.

I don’t think the rules are going to be taken down any time soon.  I think what’s expected of the expert must go up.  This must come to some extent from a better informed client about the benefits – including cost-benefit in the long run for both client and injured party – of a thorough investigation and a well written, objective expert report.

What’s being submitted now for expert reports and rebuttal expert reports are easily reviewed by unbiased, experienced technical experts – easily “slammed!” to use an expression by one of my survey experts.

(I’ve got a problem with that word “slammed” as reflecting an attitude at odds with a simple desire to seek the truth when peer reviewing another’s expert’s report.  But, it does indicate what can happen to a poorly written report)

What are the benefits to the expert and the client of following the rules for likely out-of-court settlements?  I think the following quote is a good answer:

An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier (if it goes that far, and pre-trial decision making more reliable) and will enhance the reputation of the expert.

On the other hand, a poorly written report will damage the expert’s reputation, can turn deposition into a nightmare, and can become a career-ending event (and an out-of-court settlement or dispute resolution into something less than fair for some of the parties)” (Ref. 3) (The parenthetic comments are mine)

***

A little aside.  What’s in Ref. 3 – How to Write an Expert Witness Report – for counsel and insurance claim’s managers if you were to buy it – which I think you should?  Maybe even give a copy to your expert?

This 2nd edition, massive, 560 page, 8″ x 11″ book is a step-by-step guide for experts written by lawyers.  It’s based on a review of 1,000s of expert reports, case histories and insurance settlements.  It will give you great insight into what you should be getting for your expert-report dollar.  It’s far more comprehensive than civil procedure rules governing experts, as good as they are.

(This is not a commercial for the book.  I use it and it’s excellent!)

References

  1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020
  2. How experts are helping break the expert evidence logjam. Posted April 30, 2018
  3. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, 2014, (the Preface), 560 pg, 2nd edition, SEAK, Inc., Falmouth MA

 

Is there an argument for a peer review of a peer review?

I wondered after a recent blog if there is an argument for a peer review of a rebuttal expert’s report. (Ref. 1) There’s a strong argument, if the evidence is any indication – evidence characterized, at the very least, by biased phraseology in the rebut.

In my blog I identified when peer review of an expert’s report could be done – as distinct from a rebuttal expert’s report – during the judicial and dispute resolution processes, and the involvement of the expert at each stage of a process.

I listed the stages in decreasing order of preference according to the involvement of the expert in organizing a peer review of his report.  The less involved the expert the more preferred the stage.  A peer review organized by the court or dispute resolution tribunal is the most ideal.

I included a rebuttal expert’s report in the list because it can be thought of as a review by a peer of an expert’s report.  I put it at the end of the list as least preferred even though the expert doesn’t organize it.  I did this because of the bias I see in rebuttal reports.

Based on what I’ve seen, and learned from other experts, rebuttal expert’s reports need to be peer reviewed.  A well reasoned and written rebuttal expert’s report can serve as a peer review of an expert’s report but that’s not happening.  They are not being prepared as required according to civil procedure rules governing experts, like Rule 55 in Nova Scotia.

My opinion is based on a survey of seven people in Nova Scotia and New Brunswick who provide expert services.  I asked them, To what extent do you see bias and a lack of analysis and reasoning in rebuttal expert reports?”.

The consensus was almost always.  Sometimes it’s due to sneaky bias that creeps up, unbeknownst, on all truth-seekers.  Other times – too often – it’s due to poor analysing and reasoning followed by poor report writing.  At times it’s blatant case-making for the client.

Also, often enough, the client, not being a technical expert in the issue, is unaware of his expert’s rebuttal report’s vulnerability to peer review.

***

So, based on a survey of well experienced experts in the Maritimes, rebuttal expert reports are likely biased and poorly prepared and there is a strong argument for peer reviewing them.  And the guidance in civil procedure rules like Rule 55 in Nova Scotia make it easy to do and cost effective.  It costs money in longer trials, longer dispute resolution processes and questionable insurance settlements if a rebuttal expert’s report is found wanting – as most are now.

References

  1. Ridding peer review of potential bias.  Posted December 30, 2019

A Bundle of Blogs: On the need for peer review in forensic engineering and expert services

Take your pick: Get your expert’s report reviewed by a peer, or rebutted by a peer.  A peer review has a scientific ring to it.  A rebuttal review has an aggressive ring.

If a peer review finds that you’re out on a limb with errors and omissions in your expert’s forensic investigation and report – it happens – you can back track and correct them.  If a rebuttal review finds this, you’re stuck on the limb and on the defense.  They both cost money but money spent on peer review is better spent and less embarrassing.

I’ve thought this for a while resulting in the following blogs over time.  Also that it was time to bundle them together.

I think blog #3 on controlling review costs is quite a good read.  It explains the different ways you can retain an expert and how each can be peer reviewed.

If you’ve got time to look at the blogs, you might start with #5 the first one I posted in 2013.

The Bundle

  1. Eureka! Peer review is good case management.  Posted November 16, 2018  A pithy, short blog on a Eureka! moment I had that emphasized the value of peer review at any stage of the civil litigation or insurance claim resolution process.
  2. Peer review pays off – 17 years later.  Posted May 5, 2017  A long time to wait and not your normal payback period – more like a few months.  This is case history that explains how a client was spared the lost of many 10s of 1,000s of dollars.
  3. Peer review costs can be controlled.  Posted January 22, 2016  The answer is in how you retain an expert.  You have a choice of eight different ways.  There’s a quote at the end of this blog that really makes you think.
  4. Peer reviewing an expert’s report ensures the justice system gets what it needs.  Posted January 15, 2016  I emphasize the need for peer review again and note that it is provided for now in the remediation of contaminated sites – environmental engineering.  I reviewed 16 references in drafting this blog.
  5. Peer review in forensic engineering and civil litigation.  Posted November 26, 2013  I explain the need for peer review in forensic work as perceived by a consulting professional engineer.  It was prompted after I read four poorly written “expert” reports.

Site analysis in forensic engineering investigation – from the simple to the complex, then back to the simple using drones

Terrain or site analysis using aerial video – looking at pictures taken from the air and getting information about a site – has come full circle, from simple to complex, and back to simple.  I’ll tell you how in the following, and why that’s good for forensic investigation.  Including – for certain in the future – a first-in-Atlantic-Canada aerial video.

It’s simple terrain analysis when the aerial video or photograph is taken near the ground – a few 10s of feet high.  The resolution and detail are good and anyone can look at the video and get evidence and data from it.  No special skills and software are needed.  Forensic experts like that: Reliable, precise evidence easily got and understood by everyone, including the client.

It’s complex when aerial photographs are taken from high in the sky – 1000s of feet.  The resolution and detail are not so so good and special skills are needed.  For example, skill in photogrammetry in the past as well as today, and also knowing how to use different software.

(Photogrammetry is the science of making reliable measurements between objects with the use of photographs and especially aerial photographs (as in land surveying and mapping).

(Terrain is a geographic area or piece of land.  It can also mean the physical features of a tract of land.  Also, a stretch of land, especially with regard to its physical features)

***

The simple terrain analysis today might be more correctly thought of as site analysis.  Site analysis is the type of analysis done on small, compact sites where most personal injury accidents, structural failures and problems occur rather than on large tracts of land – for example, the site of the accident, or the building or crane collapse.

***

Traditionally in terrain analysis, you look at the ground surface of quite large tracts of land as captured in aerial photographs.  You identify the physical features characterizing the surface, assess how the features relate to one another, then assess how the individual features and their relationships are relevant to your interest in the terrain.

For example, you might want to construct a road in an unmapped area.  The location and nature of features like hills, valleys, steep slopes, streams, forest, flora, existing structures and the underlying foundation soils are all relevant to what you want to do in the area.

Why not just go for a walk in the area and see for yourself?  That is done to some extent and is called ground proofing - confirming that the features you’ve identified in the aerial photographs are what they seem to be.  But for large, unmapped areas it’s not practical, maybe not safe either.

I worked for an Australian firm that selected preliminary routes for roads in Indonesian jungle by terrain analysis.  I’ve worked in jungle.  I learned after leaving one site that a man was taken by a crocodile in a mangrove swamp and eaten.

***

In the simple beginning of terrain analysis – the late 1800s – aerial cameras were taken aloft on balloons and kites and photographed the ground from quite low down.  As cameras improved this gave good detail from a different angle – above the site rather than at ground level.  In a sense, you saw your site in 3D – from the front, the side and above.  As good as it was, the area covered was limited.

Time passed and during WW 1 then more so in WW 2, cameras were taken aloft in reconnaissance planes, and understandably flew quite high and out of range of enemy guns.  Extensive areas were photographed this way and features of interest identified in the aerial photographs by the user.  Terrain analysis started to get complex.

More time passed and large areas of land were photographed this way and topographic maps made of the areas using photogrammetry.  All of Canada has been mapped from planes flying 1000s of feet in the air.

I’ve used these aerial photographs for years in my engineering work.  The planes flew at about 6,000 feet.  The detail was okay but not great, but better than not having a 3D aerial view of a site.

Various remote sensing methods were developed and increased the accuracy.  Photogrammetry continued to develop and LiDar also came along.

(Lidar (light detection and ranging) is a remote-sensing technique that uses laser light to densely measure the surface of the earth, producing highly accurate x, y, z measurements of a point on the ground.  In a sense, the location of the front, side and top of many closely spaced points on the earth – like the points defining the edge of a bog.  Lidar is emerging as a cost-effective alternative to traditional surveying techniques such as photogrammetry)

I used Lidar to investigate the cause of the foundation failure of a house and swimming pool in Cape Breton.  A Lidar map accurately showed the location of the edge of a bog and the probable location of compressible fill soil placed on a small area of the bog near the edge.  The foundations were constructed on the weak, compressible fill and bog and over time settled and subsided a lot – I remember 6.0 inches at one location.  It was an easy analysis and conclusion as to cause.

Still more time passed and in recent years simple drones fitted with video cameras came along – like motorized kites and balloons from the late 1800s -, and the cameras were much better too.  We got back to simple terrain/site analysis and the potential for taking forensic engineering investigation to another level is good.

Most recently for me, staging how an engineering failure might occur and photographing the scene from a drone fitted with a video camera.  I’m also looking forward to flying low and capturing the reenactment of a slip, trip and fall accident on video.  I’m certain it’ll be a first-in-Atlantic-Canada.

In hindsight, I wish now I had flown and got aerial video of the reenactment of a power tool accident that I investigated.  I got good video from the ground and the case was resolved, but aerial video of the reenactment would’ve been nice.  Next time.

***

I hope you’ve got an idea of site analysis and agree that simple is good.  Forensic experts certainly like it: Reliable, precise evidence, simply and easily got, easily analysed, understood by everyone, and explained jargon-free.  Not very high tech – simple low flying drones fitted with video cameras – but good and reliable.  You’ve got to agree.

It’s good like getting your hands dirty and mud on your boots tramping around on site on any occasion, including during ground proofing of the analysis of aerial video taken from low flying drones. (Ref. 1)

Also good like if you can measure it you can manage it. (Refs 2 and 3)  The measurements you can get from a screen-grab off aerial video are almost as good as those from a boots-on-the-ground land survey of a site.  The land surveyor in me knows this.

Simple is good, and it’s good to have come full circle and to be back where we started, in a sense, in the late 1800s.

References

  1. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
  2. “If you can measure it you can manage it” – and do thorough forensic  engineering, and cost effective civil litigation.  Posted June 18, 2015
  3. If you can measure it you can manage it, even if it’s a real mess like a car or truck accident.  Posted June 23, 2016

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