How does an expert engage with a party to a dispute or a forensic investigation?

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::

  1. 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.
  2. Fee basis.  No reporting.  No cost estimate.
  3. Engage for the budget set by the retaining party, after learning the budget and the party’s theory of the case.
  4. 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.
  5. 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.
  6. Fee basis after all investigation is complete and all damage repair and remediation is done and all costs accurately known.
  7. 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.
  8. 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.

Appendix

Parties to a dispute or a forensic investigation can include one or more of the following::

  1. Advocates and civil litigation lawyers
  2. Insurance company representatives
  3. Claims managers and consultants
  4. Insurance adjusters
  5. Owners of damaged property
  6. Builders and contractors
  7. People injured in accidents in the built and natural environments

How to retain an expert in a cost effective way

If you include peer review – good case insurance – you can consult with an expert in eight (8) different ways, from least expensive to most expensive, according to the technical needs of the case. (Refs 1, 2)  Really, only four (4) basic ways plus peer review.

Judiciously selecting the best way is one key to managing the cost of civil litigation.  You still got to manage your costs as distinct from the expert’s costs.

If you briefly confer with an expert, at the case merit assessment stage, you can, in a sense, add a ninth (9th) way.

These different methods are described below.  And there’s a nice, nine-item list at the end to help you see how easily the different methods follow on one another.

You must think about how and when you retain an expert because most failures in the built environment are small or medium-sized, not catastrophic and newsworthy – and not affluent either. (Ref 3)   Yet, regardless of case size, most failures and injuries require a thorough forensic investigation consistent with how the expert is retained and what s/he is asked to do.  You can always start small and expand the investigation as.the evidence comes in, if this seems justified.

Peer review of the expert’s work regardless of how he is retained is not so so necessary, not one of the basic ways, but it is good insurance – and cost effective for that reason alone. (Ref. 1)

In the past, experts have been retained in one of two ways:

  1. Consulting expert
  2. Testifying expert

Today and in future – almost without exception – experts will serve as consulting experts in the resolution of disputes rather than testifying experts.  This is because of changes in civil procedure rules governing experts.  The changes are designed to expedite resolution of disputes and reduce the number of cases going to trial.

(I attended Expert Witness Forum East in Toronto last February and learned that 98% of cases in one area of dispute were settled out of court.  I can’t remember the area but know it wasn’t engineering and science; even though the great majority in these fields, percentages in the mid-90s, are also settled out of court)

The consulting expert will submit one or the other of the following two basic reports according to Counsel’s instruction.  Ideally, these reports would be submitted at several stages throughout a forensic investigation, starting at a preliminary, even a merit assessment stage, to keep Counsel informed as to what the evidence is finding and the cost to date:

  1. Oral consulting expert’s report
  2. Written consulting expert’s report

The oral report can also be presented in one of two ways:

  1. Factual oral consulting expert’s report
  2. Interpretative oral consulting expert’s report

factual report gathers together all the data from the office, field, and laboratory investigations and submits the raw data to Counsel – without analysis and interpretation.  It’s used now in the science and engineering fields.  For example, in the geotechnical investigation of ground and foundation conditions at a new building site.  I was introduced to this type of reporting while practicing for a time in Australia and England.

An interpretative report analyses and interprets the raw data, draws conclusions and formulates an opinion on the cause of the failure or accident.  The report can be quite comprehensive, particularly in a complicated case.

The cost of a factual oral report is easier to estimate and control.  The cost of an interpretative oral report is more difficult to estimate.  Sometimes very difficult because you don’t know what you’re going to find at the site of an engineering failure or accident if you follow the evidence, (Ref. 4)

factual oral consulting expert’s report to retaining Counsel could be quite inexpensive compared to a written report to the requirements of civil rules.  A peer review of the factual oral report could also be relatively inexpensive.  The peer might discuss the facts with the expert – orally – and the investigation supporting these.

For example, I gave a factual oral consulting report on a power tool accident after I videotaped the victim reenacting the accident and after the tool was examined for wear but before investigating the adequacy of the design and manufacture of the tool. Counsel decided against further investigation based on my factual oral report.

Other examples: A colleague who reconstructs traffic accidents said he frequently gives oral reports on his findings.

Similarly, an interpretative oral consulting expert’s report could be relatively inexpensive with or without a peer review compared to a written report.  More expensive, of course, because of the interpretative element, but still less than a written report.

The written report can also be presented in one of two ways:

  1. Factual written consulting expert’s report
  2. Interpretative written consulting expert’s report

The relative costs of these two ways of writing a report on the forensic engineering investigation are apparent – less for factual and more for interpretative, and a little more still for peer review of either.

A summary of sorts

So, the cost of retaining an expert increases from least expensive – a factual oral consulting expert’s report without peer review, to most – an interpretative written consulting expert’s report with peer review.

It’s no surprise that an interpretative written expert’s report is one of the most expensive if it’s remembered that “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 … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 4)  And, I might add, turn questioning and rebutting the report before discovery into a cakewalk, a tsunami, if the report is distributed to all parties.

How you retain an expert – there are eight (8) different ways – is one key to reducing the cost of all cases, affluent and less affluent alike.  You can’t lose, if you manage your own legal costs properly, as I’m sure you do, with so many cost effective ways to retain an expert.

And also, like I said, there’s another way still, possibly the best way of all, the ninth (9th) way: Briefly talking with an expert at the case merit assessment stage.  Retaining an expert at this stage, for a few dollars. would be sort of like a preliminary factual oral consulting expert’s report – the most cost effective way of all and the best return on money spent on an expert; possibly even better than peer review.

Here’s how the different ways of retaining an expert appear in a list – from least expensive to most expensive – if we include conferring with an expert at the case merit assessment stage:

  1. Preliminary factual oral consulting expert’s report (at the case merit assessment stage)
  2. Factual oral consulting expert’s report
  3. Factual oral consulting expert’s report plus peer review
  4. Interpretative oral consulting expert’s report
  5. Interpretative oral consulting expert’s report plus peer review
  6. Factual written consulting expert’s report
  7. Factual written consulting expert’s report plus peer review
  8. Interpretative written consulting expert’s report
  9. Interpretative written consulting expert’s report plus peer review

A bit repetitious but I think helpful in deciding how to retain an expert in a cost effective way.

I did not include testifying expert in this blog because this role for an expert is much less likely in future – a few percent at most across all areas of dispute.

References

  1. Eureka! Peer review is good case insurance. Posted November 16, 2018
  2. How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system. Posted May 1, 2014
  3. Principles Governing Communications with Testifying Experts, The Advocates Society, Ontario, June, 2014
  4. Reducing the cost of forensic investigation – it’s being done now by default not by plan. Posted September 22, 2014
  5. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report, Preface, Page xiii, SEAK Inc., Falmouth, Mass. 2014

Bibliography

  1. Peer review in forensic engineering and civil litigation. Posted November 26, 2013
  2. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013

 

Eureka! Peer review is good case insurance

Peer review of an expert’s work is good case insurance against a summary  investigation, a careless analysis of the data, invalid conclusions and/or a poorly formulated opinion on cause.  And if all’s good, then it’s good insurance against delay in resolving the dispute and taking up the court or tribunal’s time.

And if a forensic investigation was omitted then peer review and identification of the technical issues is good insurance if the review finds you’re out on a limb – it’s nice to know where you’re at if you’ve got to backtrack.

(Summary as in “done quickly in a way that does not follow the normal process” – not thorough. Ref. 1)

By definition: Peer review is a process by which work (such as a scientific or engineering study, investigation or report) is checked by one or more experts in the same field to make sure it meets the necessary standards before it is published or relied on. (after Ref. 1) It can be as simple as getting an independent expert to simply read the report of the investigating expert.

Also by definition: Insurance is a means of guaranteeing protection against loss.  For example, “The peer review is your insurance against the loss arising from a summary forensic investigation or no investigation at all.”. (after Ref. 1)

I reflect on the above when I learn of failures and accidents in the built and natural environments that are well beyond the case merit assessment stage without benefit of an expert’s insight.  Not even a reading of the documents and a walk-over survey of the site – relatively quick and inexpensive forensic engineering tasks..

I had the Eureka! moment recently when I was following up on the status of a case after consulting with an advocate on the need for an expert to look into the matter.  Initially we discussed the circumstances of the problem and confirmed I was qualified to investigate it.  I was remiss at the time in not inquiring about the stage of the civil litigation.  I was surprised during my follow-up to learn that the case was in discovery.

Oh boy, what to do this late in the game?  I found myself typing my last sentence in an  e-mail suggesting peer review -  it just came out of the blue, the Eureka! moment - “Peer review is good case insurance”.

I know about peer review in forensic engineering but never thought of it as insurance.

***

By way of refreshing your understanding of peer review in forensic investigation you might read one or more of the blogs listed below in the references that I posted in the past.  They’re all quite informative, if I do say so myself, particularly Ref. 4 on peer review costs.  If nothing else, that one could save you money in litigation involving experts.  My blogs are also well referenced to the engineering and scientific literature on peer review so lots of good reading there too.

References

  1. Merriam-Webster dictionary, November 10, 2018
  2. Peer review in civil litigation and civil litigation. Posted November 26, 2013
  3. Peer reviewing an expert’s report ensures the justice system gets what it needs. Posted January 15, 2016
  4. Peer review costs can be controlled. Posted January 22, 2016
  5. Peer review pays off – 17 years later. Posted May 5, 2018

 

Why did the bridge collapse in Italy and how might Advocates have known this could happen?

(There’s take-away insight in this item for Advocates at the case merit assessment stage, particularly in Appendices 1 and 2.  The simple data there plus conferring with a forensic engineer can help you assess the technical merit of a case)

***

Right away, three engineers had similar thoughts about the cause of the Morandi bridge collapse August 14 in Genoa, Italy :  My friend, Paul Gunson, Adelaide, Australia, in an email a few days ago, friend, Reg Crick, Halifax, during a chat, and me. (Ref. 1)  Paul drove under the bridge in 2009.

Take your pick of causes from a survey of these people:

  • Water,
  • QC,
  • Maintenance,
  • Water

If that’s not enough, I’ll tell you a little secret below about how designers tweak - some might skimp-on - the factor of safety.  (Actually, it’s good engineering not skimping but you need an informed public to understand that)

(QC as in Quality Control during construction and Water as in Lots of Water)

Paul did some research and found that the Morandi bridge and one other showed serious rusting of the steel reinforcing – too much water and too little maintenance  The concrete cover was spalling in some areas and exposing the steel to the weather.  There were also reports of concrete that was way below the specified strength – too little QC.

I did quite a lot of quality control of concrete and earthworks in the past and Paul’s findings resonate with me.  Quality control and maintenance are not very glamorous and often get the short end of the stick.

In a blog several years ago, I added quality control and maintenance to a list that I saw of the stages in the life cycle of a building or civil engineering work – to increase the total to 11.  There’s no questions they are stages where failure can occur.  Ignore them at your peril. (Ref. 2)

Almost the first thing Reg said when we chatted about the bridge in Italy, “Get rid of the water!! (Stupid!!)”.  Reg didn’t say “Stupid!!” but that was the tone. (Ref. 3)  He was referring to proper drainage of the water from the bridge deck that isn’t provided for during bridge design.  Drainage design isn’t very glamorous.

Reg noted another mutual friend Bill Waugh, who designed dozens of bridges in Nova Scotia and Jamaica before he passed away, despaired at the inattention to deck drainage during bridge design.  Water rusts exposed structural steel..  There’s an element of maintenance in this as well; keeping deck drains – when they are present – clear of debris so the water can drain.

I wondered when I first saw the bridge failure why successive spans of the bridge went down after the first one?  Was that continuous span of bridge deck over successive piers designed to such a low factor of safety – in the interest of looking slender and pretty – that a span relied on adjacent spans for some of it’s support?  And when one span goes down, like dominoes many go down?  But in hindsight I realized that proper design of bridges like this one might in fact rely on adjacent spans, but perhaps too much.

A tweaking engineering design secret: In engineering design the factor of safety is reduced – confidently whittled away – with increasing successful design and construction, and no failures.  Until the pendulum swings too far, failure occurs, the pendulum swings back.and the factor of safety is put back up.  This really does happen in design. (Ref. 4, pages 100, 101. A very good read)

(The factor of safety is a number got from dividing the weight you want to support safely into the greater weight that will break the thing providing the support – cause it to fail)

If you want to know more about when and where failure occurs and who is responsible – a broader picture - see Appendices 1 and 2 below.

It’ll be a while before we know why the bridge in Italy failed but the smart money is going down on over confidence during design and poor deck drainage and maintenance.  And no way can I leave out poor QC during construction.  Any takers?

***

There’s food for thought for Advocates in this item.  Buildings, civil engineering works and infrastructure fail in many ways, and some of these are an easy first pick for a forensic engineering expert at the merit assessment stage.  And failure doesn’t have to mean total collapse of a building, – or a bridge like in Italy – but simply that it doesn’t work right.  The bridge probably didn’t work right for years, like in poor deck drainage.

Poor design, construction and maintenance can also injure people, for example, in slip and fall accidents on floors with low skid resistance.

What’s the take-away for Advocates?  You’ve learned that when a failure occurs in the built environment or a person is injured experienced engineers are suspicious of what took place at certain stages in the development of a structure.  Our suspicions are backed up by independent and detailed studies by researchers in the U.S. and Europe of 100s of failures.

Taken together – our experience as engineers and these studies – we have a good idea where to look for cause.  If you don’t consult an expert at the merit assessment stage you risk technical failure of your case.  

References

  1. Personal communication, Paul Gunson, Adelaide, Australia, 2018
  2. Stages in the “life” of a structure helps communication between counsel, insurance claims managers and engineering expert. Posted July 2, 2015 (See update Appendix 1)
  3. Personal communication, Reg Crick, Halifax 2018
  4. Petroski, Henry, To Engineer is Human: The Role of Failure in Successive Design, Vintage Books, New York April 1992,
  5. International engineering magazine publishes information on foundation engineering in eastern Canada – and also information useful to counsel on the causes of failure.  Posted January 4, 2013  (See Appendix 2)

Appendix 1

(The following was taken from Reference 2 above and updated)

You might be interested in the updated list below of the stages in the “life” of a structure in the built environment.  Structures include earthworks and waterworks – a reshaping of the natural environment – as well as buildings and bridges.

I came across the basic list while reading the latest, 2012 edition of Guidelines for Forensic Engineering Practice.  I added the stages in italics to those in the Guidelines.  The list is a useful breakdown of the aging of a structure.

The Guidelines were published by the American Society of Civil Engineers (ASCE).  Civil engineering includes structural engineering and geotechnical engineering.

I see the list providing context and facilitating communication between counsel, insurance claims managers and consultants, and an engineering expert.  Failures and personal injury accidents can occur pretty well any time during the life of a structure.

Principles governing communication between counsel and expert have been developed recently by The Ontario Advocates’ Society. (Ref. 2)  The following list of stages in the life of a structure will further help counsel and an engineering expert talk to one another when a failure or personal injury accident occurs:

  1. Conceptualizing
  2. Planning
  3. Designing
  4. Constructing
  5. Quality control (during construction)
  6. Operating
  7. Maintaining
  8. Renovating
  9. Re-configuring
  10. Decommissioning
  11. Demolishing

ASCE say that, “Failure can be defined as an unacceptable difference between an actual condition or performance and the intended or reasonably anticipated condition or performance.”  This can occur during any stage in the life of a structure.

Furthermore, “Failure need not involve a complete or even partial collapse.  It may involve a less catastrophic deficiency or performance problem, such as unacceptable deformation, cracking, water- or weather-resistance, or other such phenomena.”

It’s not difficult to imagine that failure can occur at any stage.  Nor that personal injury accidents can occur at any stage.

Communication is easier for both counsel and client and counsel and engineering expert if we all have an idea of a structure’s “life” and the stages it goes through as it ages  The list above can help us.

Appendix 2

(The following was taken from Reference 5 above)

An article entitled “The expert witness and professional ethics” reports on the categorizing and classifying of the causes of structural failure as determined by researchers in the U.S. and Europe.  This research reviewed the causes of hundreds of failures.  Based on the research the primary causes of failure were categorized as follows:

  • Human failure
  • Design failure
  • Material failure
  • Extreme or unforeseen conditions or environments
  • Combinations of the above

When professional engineers were at fault (human failure) the causes of failure could be classified as follows:

  • 36%…Insufficient knowledge on the part of the engineer
  • 16%…Under estimation of influence
  • 14%…Ignorance, carelessness, negligence
  • 13%…Forgetfulness, error
  •   9%…Relying on others without sufficient control
  •   7%…Objectively unknown situation
  •   1%…Imprecise definition of responsibilities
  •   1%…Choice of bad quality
  •   3%…Other

When the percentage distribution of the failures were summarized the research found that almost half were due to errors in the planning and design of a structure and a third occurred during construction:

  • 43%…Planning and design
  • 36%…Construction
  • 16%…Use and maintenance
  •   7%…Others and multiple factors

I reviewed research a few years ago that found many, possibly most, foundation failures were due to inadequate geotechnical investigation of the foundation soils.

This type of information based on what appears to be quite exhaustive research is valuable to a forensic engineer in forming an initial hypothesis of failure at the beginning of an investigation.

The information is also valuable to Counsel in assessing whether or not to take a case or gaining an appreciation of where a forensic investigation may be leading based on initial oral reports by the professional engineer investigating the cause of the failure.

 

 

 

 

Forensic engineering and face transplanting

I was struck by the news report a few days ago about the man getting a face transplant, particularly the five years the surgeons and medical docs planned such a daunting operation. (Ref. 1) It reminded me about a case I had a while ago, albeit less difficult by comparison, and months of planning not years.  Nevertheless, I had that daunting feeling too.

Maurice Desjardins’ face was damaged by a bullet during a hunting accident.  He couldn’t close his mouth property and had holes in his face for a nose, and breathed through another hole in his windpipe.  Surgeons tried rebuilding his face with conventional plastic surgery over the years without much luck.

Then Dr. Daniel Borsuk came along, “un magician du visage” (a magician of the face), in his mid 30s and full of youthful piss and vinegar, and after five years of planning – Success.

Dr. Borsuk plus 8 other surgeons, 5 anaesthesiologists and 100 other medical, nursing and support staff performed two operations at the same time that had to end within minutes of each other.  The one operation removed the face of the brain-dead donor and the other transplanted the face before it died.

The operating rooms were so busy looking in news reports that it seemed no one moved unless they all did.  It reminded me of my smallish kitchen when five friends are in it each preparing a different course for dinner.  When one has to move to get something from the cupboard; we all have to move.

So, why am I telling you this?  How does a face transplant relate to forensic engineering?  It relates because some forensic investigations also take a lot of planning to know where you’re going.  Not years but sometimes many months and that can be scary because time is money in civil litigation.

The news report made me think of a case I’ve got that contains six different investigation, design and construction specialties.  They are as diverse as lifting a structure off its foundations and setting it aside to chasing an elusive material across a site, quite literally.

Where do I start in dealing with such a problem?  And how do I estimate the cost of the different specialties to guide the way forward when not a lot of experience exists in the area, certainly not all under one roof.  And for the one specialty, the magnitude of the problem is not known until you start chasing it.  How do you estimate the cost of something like that?

I’m getting on top of this case as the months go by, fortunately not years but still long and difficult. I had that daunting feeling when I started and was reminded of it when I saw the news report.

I thought of another case involving repair of the old foundations of a structure founded on sloping, filled ground that is still subsiding and shifting after about 40 years – not a sinkhole like in oxford, N.S. but almost equally challenging in the uncertainly that had to be confronted.  The main problem was repairing the foundation and supporting the structure safely while accommodating future ground movement and conforming to the standard of care.

Fortunately I remembered a case report from years ago about providing jacking points in the support for a structure underlain by compressible foundation soils.  I also conferred with a friend in Australia, Paul Gunson, who dealt with a similar problem beneath a railway line. (Ref. 2) Paul’s innovative solution included grout and rubber blocks for foundations.  The way forward was clearer.  Still, lots of non-textbook problems to solve and solutions to implement.

Two or three other engineering cases come to mind as i write.  It’s interesting, that the difficult, many month-long ones concern the ground and Mother nature, unknown, unforgiving quantities that don’t lend themselves to neat, quick and easy textbook solutions.  I’ve known about the tricky ground for decades and the planning that is necessary.

For certain, “the magician of the face” knew about tricky plastic surgery and that he was operating at the cutting edge of face transplanting when he started planning years ago.  A friend of mine, a retired ear, nose and throat surgeon, told about repairing a throat one time damaged by a chainsaw – a suicide attempt – and another repair, a windpipe pierced by a 2″ diameter stick.  Where do you start?

It’s a good thing that engineers and surgeons like to have a problem to fix and one to look forward to.

References

  1. Canadian Broadcasting Corporation, CBC,  and other news’ reports, week of September 9, 2018
  2. Personal communication, Paul Gunson, professional engineer, Adelaide, Australia, July 18, 2018

 

A kid’s toy drone can photograph the site of an engineering failure, a personal injury or a traffic accident

C’mon, really? It’s true, as I found out a few days ago during a meeting in Moncton.  I was told about a small drone fitted with a camera that could take vertical, aerial photographs above the site of an engineering failure, a slip and fall accident or a traffic accident and do this within Transport Canada’s regulations.  For that matter, the site of any personal injury.

I was at a meeting of CATAIR, the Canadian Association of Technical Accident Investigators and Reconstructionists.

Transport Canada’s strict regulations considers any drone weighing less than 250 grams a toy.  The Zerotech Dobby Pocket Selfie drone weighs 219 grams fitted with a battery and a 4K HD camera and costs about $350 Cdn – just a toy.  For a look-see and demonstration, Google ZEROTECH Dobby Pocket Selfie Drone FPV With 4K HD Camera  

I can imagine carrying one of these around – almost in your pocket – during a visual assessment of a site like we carry a carpenter’s tape now.  Maybe they’ll be standard issue in the future in the tool kit of forensic engineers, civil litigation lawyers, claims managers and others concerned with a site that has a problem.

The kid’s toy Dobby drone doesn’t take good quality aerial video, which I rely on during my forensic investigations – it’s not fitted with a gimbal -  but it does take inexpensive vertical photographs quickly.  These would be photographs a little like those we engineers used to take of a site from the raised bucket of an excavator or a boom truck.

(A gimbal is a device that keeps a camera level and minimizes vibration.  The basic device has been known for centuries – but it’s not on the toy Dobby because it increases the weight and cost)

Frame grabs of single photographs of the ground from good quality aerial video are easy to get like those from a toy drone but aerial video takes more time to organize and process and is more expensive.

I plan to compare the quality of vertical photographs taken with a toy drone of a site I’m investigating now to that of a frame grab from an aerial video.  I’ll wait till the leaves fall from the tree-covered site so we can see the ground better.  I’ll let you know how they compare..

How to avoid ‘surgery’ during a forensic investigation

Recent news coverage of archaeologists investigating the ground got me thinking about using their method in forensic investigation.  It’s called ground penetrating radar, GPR for short.  It sounds technical but it’s not really.  It’s simply a radio transmitter and a receiver.

The device sends radio waves into the ground, processes their reflection from a buried object and displays the results on a computer monitor.  The display is analysed and the nature and depth of the object is determined.  Airports send radio waves out all the time to identify your inbound flight from Toronto and how near you are to landing.

GPR is used to look for objects of interest below the ground surface.  Things like old skating rinks, stone walls and graves as reported in the news stories on archaeological work at the Halifax Commons and Grand Pre in Nova Scotia and at Sydney Mines in Cape Breton. (Refs 1 and 2)  The work on the mainland is by Jonathan Fowler, Saint Mary’s University and in Cape Breton by Maura McKeough, Parks Canada.  GPR can also be used to identify the depth to the water table, different layers of soil and rock and voids in the ground.

There was a news report a while ago about a house in Nova Scotia collapsing into a void.  GPR could be used to locate voids like this before a house was built.

i used GPR during an engineering investigation in the Bahamas looking for voids in the limestone beneath an airport runway.  The voids are called banana holes.  I understand they got this name because banana plants grow there when the roof of the void collapses exposing it at the surface of the ground, or a runway.  The voids form when ground water dissolves the limestone.

You can imagine the civil litigation that would result if an aircraft on landing caused the roof of a banana hole to collapse and the aircraft to crash.  Particularly considering the ready availability of remote sensing methods like GPR to locate voids.

These methods are remote sensing – non intrusive – like CAT scans, X-rays and Ultrasound in medicine.  No surgical cutting a patient ‘s body to see the tumor and no digging in the ground to see the void.

On a personal note, my re-awakened interest in this method was also its possible use in locating the unmarked grave of my baby sister in a cemetery in New Brunswick.  My mother had a 7.5 month premature baby – Baby Hazel – who died 2.5 days after she was born.  My sister’s casket would display on a GPR monitor as an unusual feature in the soil.

I don’t know when the need to use GPR during a forensic investigation will arise but I’m certain it will.  I can imagine it resulting in a more cost effective forensic investigation in some instances as well.  Almost any civil litigation involving the ground might be a candidate.

i chanced to see a drone fitted with a camera taking low level, aerial video several years ago and now consider getting aerial video with a drone of all my forensic sites involving the ground.  Who knows when and where ground penetrating radar, GPR, might be useful during a forensic investigation?

References

  1. Fowler, Jonathan, professor of archaeology at Saint Mary’s University, Halifax, NS as reported in The Chronicle Herald, Halifax, Saturday, July 18, 2018
  2. McKeough, Maura, cultural resource manager, Parks Canada as reported by CBC June 29, 2018

Why do I blog? – See a few good, perhaps one or two surprising reasons in the following

During the past six years, I blogged to help you gain some understanding of the nature and methods of forensic engineering in the event you may need an expert.  Just so you know something about the services you’re retaining.  See Earlier Blog Update below for quite a good read

I also like to write.  I belong to a group that could be characterized as a story-writing and story-telling group.  Reporting on a forensic investigation is like telling the story of the investigation; a good way of explaining it to the judicial system.

But I’ve realized the last couple of years that striving to write expert reports and blogs well trains me in another way: To think and analyse on paper, draw conclusions and formulate an opinion on the cause of an engineering failure or personal injury.  Then document the investigation and results in a well-written expert’s report.

Like last year, when drafting this annual Why? blog, I’m now in the middle of an investigation and the fixing of a problem that is benefiting from thinking-on-paper.  In this case it’s a non-textbook problem in the extreme – underpinning a structure founded on an old, rubble fill that was quite unstable in the past and still is a little.  I’m also giving much thought to the standard of care – what would my peers have to say about fixing a problem like this?  I doubt there’s much relevant experience in the Atlantic provinces.  Also like last year, the fixing will go on for a while yet as I turn the situation and the data over in my head and squeeze out the way forward on “paper” – the word processor..

There’s a lot implied in the words forensic engineering and a lot of writing is involved at some stages:

  • Investigate the cause of a failure or accident
  • Examine and observe
  • Do a subjective assessment (like in the SOAP procedure in medicine)
  • Measure and test
  • Research
  • Analyse data
  • Do an objective assessment
  • Draw conclusions
  • Determine cause
  • Formulate an opinion
  • Present reliable evidence to counsel and the court or tribunal in simple, non-technical English verbally and in well written experts’ reports

(Like lawyers, experts don’t write a report and walk into court or a tribunal without a lot of investigation and preparation beforehand. After Ref. 1)

Reaping the benefits of writing/blogging is not unique to me nor is it new.  Journalizing in some form as a means of working things out – your thoughts, drafting a talk, a preliminary report, noting an item to remember - has been around a long time.  I carry a notebook with me most times, like I’m sure many of you, to capture a thought along the way.

It’s just that it’s not so very technical-sounding – thinking-on-paper - even though it has an important role in the different stages of forensic investigation.  I like to think, “I knew that!”, the benefits, but the penny has dropped several times in the last two or three years and made a louder noise each time.  It’s a nice thought, that I’m thinking-on-paper when I’m blogging, and learning and having fun doing it.

References

  1. Pizzo, Ron, Pink Larkin, Lawyers, Halifax, Wrongful Dismissal Primer: What to Know When an Aggrieved Employee Walks Into Your Office.  APTLA Conference, Halifax, November, 2016

***

Earlier Blog Update: Why do I blog on forensic engineering investigation?  Posted July 22, 2016

I blog because I want you to know about an interesting field of engineering that I enjoy and that contributes to the resolution of disputes - a nice way to practice.  Also, an engineering practice that is relevant to the field of practice of many of you.

To some extent, ours is a litigious society and one with a lot of insurance claims involving engineering failure and personal injury.  Inherent in this situation are technical obligations for counsel and their need to know something about forensic investigation.  Some cases don’t go forward or claims settle until the technical issues are identified and investigated by an expert.

In many cases, an important duty for counsel is ensuring the technical evidence is properly understood by the court or tribunal. (See the Comment on Reason #1 below, also Ref. 1) There are other reasons I blog – I’ve identified and listed eight (8) below – but this is an important one.

I identified the following reasons by reflecting on the 174 blogs that I’ve posted in the last few years.

Why do I blog?

Reason #1 I want to describe the nature and methods of forensic investigation for counsel and insurance claim consultants, to help you understand what forensic engineers do.  Included are some of the newer methods like a low flying drone fitted with a camera to photograph the scene of an engineering failure or personal injury.

(An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site.  I was surprised at what I saw.  Aerial photographs of a another site is helping me assess if the site is contaminated decades after a spill)

I want to describe how we carry out independent investigations, observe, analyse, draw conclusions and formulate objective opinions.  Then present reliable evidence to counsel and the court or tribunal in simple, non-technical English.

Comment: Why is this a particularly good reason?  It’s because I’ve learned that counsel has obligations with respect to the expert’s report or affidavit. (Ref. 1)

In many cases, counsel 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)

Counsel also has an obligation to monitor the cost of civil litigation in view of the often small to medium size-sized cases in the Atlantic provinces – and their sometimes less 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 or catastrophic.

Costs can be controlled to some extent by how an expert is retained and how early.  There are at least eight (8) different ways of retaining an expert. (Ref. 2)

It’s difficult for counsel to carry out their obligations to the court or tribunal 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 thorough investigation and rendering a reliable opinion, as expected of the expert by the court or tribunal.  For certain, following routine investigative procedures in an effort to ensure no stone is left unturned. (Ref. 3)

As well, we don’t know when we start what we’re going to find that we must investigate.  Every failure and accident is different. (Refs 4, 5 and 6)  And then there are the surprise, follow-up investigations.  Not enough time and money is no excuse if we miss something.

Counsel can assist – with some understanding of forensic work - by identifying and selecting the relevant technical issues early in the case with the assistance of the expert.

Reason #3 To help counsel understand the importance of retaining an expert early in all cases, affluent and less affluent alike, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential case 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, thorough investigations to ensure the quality of the evidence and the reliability of an expert’s opinion, 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, so said the owner.

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 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 civil litigation process.

Comment: Experts have a duty to acquire some understanding of the process.  The justice system expects this of us.

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 claimant’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 claimant 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 six 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 claims 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 them 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.  Then they came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In six years, only about 10 readers requested removal 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, and that I`m making a contribution to the civil litigation process and to insurance claims management.

Reason #8 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-life, balance-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.

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

 

 

How I was tyrannized by the obvious during an engineering investigation

It can happen to any of us, and it finally did to me.  I was tyrannized by the obvious when investigating the cause of flooding in a large, three story building.

A building renovator called me after water was seen on the furnace room floor by staff of a veterinary practice.  They had gone to the room where materials were stored and saw a few millimetres of water on the floor.  Not a lot but still.

The renovator said the building which was erected in the 1960s was on a concrete, ground-floor slab, on low land and near a lake.  The furnace room was enclosed by concrete block walls.  The flood water had pooled on the slab.  He estimated that the concrete floor slab was about five feet above the nearby lake surface.

When i went to examine the site I saw that the five feet was about right and that the furnace room was an estimated 50 feet from the lake shore.  I was also told that the lake level was higher than normal due to a lot of rain this spring.

The grounds around the building sloped down slightly to the lake shore.  The front and right side of the building were paved.  There was a lawn at the back and an old paved boat ramp on the left.  The surface of the boat ramp was bumpy after many years.

The corners of the furnace room were still wet where the concrete block walls rested on the concrete floor.

I had a good look around then walked across the floors of the different rooms in the practice.  They were a little uneven which wasn’t so unusual for an old building.  But my look around wasn’t as good as it might have been and I neglected to look in the small room adjacent the furnace room.

My examination complete I met with the owner and the renovator.  I noted how the water rises in a lake during frequent rain storms.  It also rises in dug wells.  The water in a well is the water table. The surface of the water table in the ground near a lake shore is usually higher than the lake.  There is also water in the soil above the water table due to capillary action – this is when water rises in the small voids in the soil above the water table (Check high school physics)

This higher water table plus some surface water runoff across the asphalt at the side of the building could explain the presence of the water in the furnace room.  It was obvious.  I mean, the building was so close to the lake with high water levels not seen in recent years and the furnace room floor was near the lake surface and the water table.

The irregular boat ramp was typical of frost heave due to water in the ground – a high water table and capillary action during wet springs over the years – and would back up this obvious conclusion further.

I talked about different ways of preventing water getting into the furnace room.  These included the obvious – terrible word – better perimeter footing drains and/or a sump pump.in the furnace room.  A sump pump is a pump in a depression or hole in the ground – a sump.

The sump pump was decided on as the least expensive and one that could be constructed several feet below the water table to draw it down below the furnace floor.  That decision was left with the building renovator.

I left the site after about an hour – an efficient examination and consultation, or a  hurried one?

A few hours later the renovator called to explain that a staff member had gone in the wash room – the one room I hadn’t gone in – adjacent the furnace room and found a burst water pipe, the real cause of the flood in the furnace room.

I was tyrannized by the obvious and guilty of expectation bias.  The moral of the story?  If it’s obvious, keep on truckin’ and do more investigation.

 

 

 

 

How experts are helping break the expert evidence logjam

The logjam is between the view of experts and their evidence as held by the legal community and the view as held by experts themselves – one negative and not so well founded and the other positive and more evidence-based.  Experts are breaking the logjam by speaking out, telling it like it is not how the court perceives it to be.

We should all read Ruth M. Corbin’s excellent paper, Breaking the Expert Evidence Logjam: Experts Weigh In, and some of the 65 citations, on the disconnect between the court’s perceptions of experts and the views of the experts themselves. (Ref. 1)  It’s interesting, and surely embarrassing, that the court’s views are not so evidence-based.

Read the themes and gaps in perception that Dr. Corbin found in a pilot study:

  • that included 152 experts who have testified in Canada – that’s a lot
  • then reflect on the cause of this disconnect – I’ve got my views
  • see ideas for fixing the problem that resonate with courts and experts alike, and,
  • read Ruth’s call for additional, more quantitative studies to firm up her findings.

I heard Ruth present her paper at the recent Expert Witness Forum East in Toronto on February 27 and read and studied it three times since.  Its well written – no technical and legal jargon here – and a good and informative read.  You can Google the paper’s title and her name.

The Paper’s Abstract

The paper’s Abstract is a good introduction (I took some liberties with Ruth’s abstract and broke it up into more paragraphs, and commented here and there.  I also tabulated the future steps):

    “Expert evidence is perceived by many as inherently suspect.  Effort world wide is being directed to improving the process by which valid and reliable expert evidence is delivered to triers of fact.  Curiously, experts’ input on process improvements has not been solicited. (That’s quite a revelation in my view!)  One is struck by the paradox that experts continue to publicly acknowledge an expert’s duty to the court and continue to swear oaths to that effect, and courts continue to disbelieve them.  Even with the wave of new rules about expert testimony in dozens of jurisdictions, the perception of a problem has not gone away.

“A research project was carried out among a broad range of Canadian experts (and a good sample size at 152) to identify gaps, if any, between the perceptions of experts and courts…….Five compelling themes emerged from the research (and six gaps between the views of experts and legal people), highlighting ambiguities and inconsistencies in interpretation of the expert’s duty.

“The paper concludes with opportunities for next steps in three domains:

  1. Empirical research to strengthen the evidence-based foundation of future policy
  2. Economical modeling to complement the Supreme Court’s call for a “cost-benefit” analysis of expert testimony (I believe, based on my experience in Atlantic Canada, that this modelling and analysis must include an identification of principles governing the cost control of civil litigation involving experts), and,
  3. Practical steps toward creating a forum for direct communication between experts and courts (The duties of the middle man in the process, the advocate, have got to be modified a little)”   

Compelling Themes From Experts’ Comments

The five themes presented below are those topics most frequently identified by content analysis of written and interview-recorded input from the 152 experts.  Content analysis is the objective categorization of descriptive text into common themes.  There’s in-depth comment on each of the themes in the paper:

  1. Duty to the court is universally acknowledged.  The concept, or even the explicit phrase, “duty to the court”, was universally acknowledged by the experts.  No one thought otherwise.
  2. Mis-perception of motives,  ”It’s not about the money”, volunteered many experts.  They rejected this view that experts are motivated by money, that they’ll say whatever in court to maintain a revenue stream.  The most frequent motive expressed was the interest and challenge of solving difficult problems for which their expertise was needed and valued.
  3. Mixed signals from the courts: Independence, neutrality and opining on the ultimate issue.  Duty to the court was understood to entail principles of independence, objectivity and refraining from opinion on the ultimate issue.  However, experts who looked to court decisions found these principles to be ambiguously interpreted.
  4. Risky surrogates of credibility and common sense.  Experts acknowledged that they had seen opposing experts take what they considered biased positions.  “Rogue” experts may have the charisma and comportment to have their opinions preferred by the courts, to cause judges to make errors in evaluating scientific evidence, based on “common sense”.
  5. Appealing alternatives to adverse testimony with cautionary words.  It was widely observed that malfeasance should not be automatically presumed when experts disagree on interpretation of the same facts:  Collegial debates are endemic to academic life and professional forums.  Consistent with that view, hot-tubbing was met with widespread support among those whose views were canvassed.

Gaps in Perspective Between Law Professionals and Experts

Ruth’s paper tabulates the discovered gaps between published decisions and legal commentaries, and experts’ own views sourced in the course of the research presented in her paper.  The gaps are identified based on qualitative content analysis.  The differences in the published principle or presumption of the court and the compelling themes from the experts highlight the gaps for each of the following issues:

  1. Objective value of the expert’s evidence.                                                           Gap: Experts are conscious of their duty of objectivity contrary to how the courts perceive them
  2. Independence and objectivity.                                                                               Gap: Similar to previous.  Part of the problem is the court’s own confusion interpreting these terms.  Experts know what they mean; it’s interesting that courts don’t
  3. Assessment of an expert’s credibility.                                                                 Gap: Charisma and comportment in court are trumping scientific evidence
  4. Common sense standard.                                                                                   Gap: It plays a part in court but an understanding of what it is varies.  It should not override science, regardless of what it is
  5. Motives of experts.                                                                                               Gap: Experts are driven more by curiosity and solving a problem than by money
  6. Alternatives to adversarial evidence.                                                                     No gap here; a meeting of minds on reducing adversarial testimony with techniques like hot-tubbing. (Ref. 2)  This is the consensus-building north not the adversarial south

Summary

There is a logjam but the experts are helping to break it with objective comment and Ruth’s evidenced-based help.  The jam doesn’t reflect well on the court’s too subjective, confused assessment of issues at times and their susceptibility to undue influence from understandably biased players in the judicial process.

The experts are unjustifiably getting the short end of the stick in the process – perceived badly – but 152 experts can’t be wrong.  Their near universal understanding of objectivity, independence, what it means to swear an oath, and that they serve the court – no one else – is clear to the experts.  Less than 10% of experts have been found in rulings and comment to be biased.  What part of this understanding doesn’t the court understand?

The court’s perception of the expert is filtered through the advocate who presents everything from the expert to reflect best on their client, as s/he must.  The opposing advocate does the same.  The big picture is confusing and messy to the judge, particularly if it’s a scientific issue, and the expert is at the centre of it.  What’s a poor judge to do?  No wonder they have a jaundiced view of the expert.

But, Ruth’s research is setting the record straight with evidence-based data from experts, and hopefully more to come from bigger, more quantitative studies.  A judge need only read, listen and learn from the objective experts because we tell it like it is..

***

(A lot of the above has been taken from Dr. Corbin’s paper as I understood it.  Her paper on the hot-tub alternative to adversarial expert evidence is also very informative.  See Ref. 2 below)

References

  1. Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018 (Google it)
  2. Corbin, Ruth M., The Hot-Tub Alternative to Adversarial Expert Evidence, The Advocates’ Journal, Spring 2014. (You can Google it too)