I’m going to tell you about defects in a building designed by architects and engineers.  Defects that should not have occurred and might have resulted in civil litigation in another time and place.

I don’t know whether to feel delighted or embarrassed on finding defects in an addition to a building constructed while I was at the University of New Brunswick (UNB).  I was in the building last fall for a reunion of my engineering class.

I pick delighted because I know that failures occur and finding them reminds us we can’t be too diligent and thorough in our work.  Even well educated, trained and experienced planners, architects, engineers and builders.  We got to be ever-vigilant that we don’t drop the ball in the face of tight budgets and schedules.

Failure occurs when a component of a building or civil engineering structure doesn’t function as it should, has a defect, or collapses completely.

1st Defect

I noticed the first defect years ago when I was studying at UNB.  Construction of an addition undermined the foundations of an existing building causing the foundations to settle and the brick wall in a classroom to crack. (see Appendix) You could see daylight through the 1″ crack (it’s been caulked since).

Cause of 1st defect

The undermining causing the crack was due to the technique used during construction of the foundations to the addition.  The technique is well known, including it’s limitations that must be taken into account. (see Appendix) If not, foundations are undermined and cracks appear in brick walls.  Or worse. (see pictures of a catastrophic failure in Ref. 1)

2nd Defect

I noticed last fall that the floor level of the addition was several inches different from the floor of the older part of the building.  Such a difference in floor level contravenes some guidelines and could be construed as unsafe.  This is the second defect in this building of which I’m aware.

Cause of 2nd defect

The cause of the mismatched floors is certain to have occurred during planning and design of the room height in the addition – an initial hypothesis.  The floor to ceiling height in the existing building was not measured so planning and design could ensure the floor of the addition matched the floor of the existing.  Or it was measured but the information not used.

The difference in floor level would not be due to foundation settlement nor to building shrinkage.  The difference of several inches is just too great.

Two defects in the planning, design and construction of an addition to a building?  Overseered by planners, architects and engineers?  I’m certain someone was embarrassed back then.

No excuse for defects

Two defects in a building – one in the planning and design stage and a second in the construction stage – that should not have occurred.  These potential problems are too well known to experienced planners, architects, engineers and builders and could have been avoided.

References

1. (Fairly easy) Estimating the investigative cost of a catastrophic failure.  August 13, 2013

***

Appendix

My first “forensic engineering” investigation.

The following is one in a series of cases I have investigated that illustrate the different types of failures and accidents that occur resulting in civil litigation, and the forensic engineering methods I used to investigate the cause.  I investigated this failure when I was studying civil engineering at UNB and hardly knew what a forensic investigation was.

The investigation is reported under the following headings with several sub-heads:

• The case (a description of the failed structure – significant cracks in a building – the “legal”/technical issues, and my “client”
• Forensic engineering investigation of the failure and the methods used
• Cause (of the failure)
• Post mortem (an interesting side story and a lesson learned)

The case

I carried out my first “forensic engineering” investigation during my 5th year studying civil engineering at UNB.  As a student I had little or no understanding of forensic engineering and wasn’t even qualified as a professional engineer.

Nevertheless, this was a significant and costly building failure but, fortunately, not a catastropic one. (see pictures of a catastrophic failure in Ref. 1 above)

We took some of our lectures in a room on the second floor of a two story brick-walled building on the campus.

One day a 1″ wide, vertical crack appeared in the front, left corner of a wall of the lecture room.  (I measured the caulked crack last fall during our reunion)  You could see daylight through the crack.  This would be significant damage to an existing building

“Legal”/Technical issue

To me as a student with an interest in geotechnical and foundation engineering, the cause of the crack was interesting.  I investigated and reported on the cause to meet the requirements of one of my courses.

“Client”

My “client” was the professor who was giving the foundation engineering course at UNB.

“Forensic engineering” investigation

My “forensic engineering” investigation involved the following:

• Visually examine the exterior of the building
• Determine construction of the building’s foundations
• Also construction of the addition to the building
• Research construction techniques

Visual examination

A visual examination of the exterior of the building found that an addition to the building was being constructed adjoining the existing building.  Construction involved a deep excavation adjacent the existing building.  The sides of the excavation were supported by steel beams and timber planks.

Construction of the building’s foundations

I learned that the existing building was supported on shallow spread footings founded in the natural soils.  Excavating near and well below natural foundation soils requires their lateral support to prevent undermining the soils.  The soils could cave into the excavation – collapse catastrophically – unless properly supported.

Construction of the addition to the engineering building

I learned during my visual examination that the pile and plank, excavation support system installed by the contractor was a soldier pile shoring system.  This system is intended to temporarily support the sides of the excavation and in this way the foundation soils beneath the existing building.

Soldier piles are steel beams installed vertically in the ground at regular intervals of several feet at the side of where an excavation is planned adjacent existing foundations.  The piles are set deeper than the planned depth of the excavation.  The piles are driven vertically in the ground, or installed in previously bored holes eliminating the ground vibration from pile driving.

As the ground is excavated on one side of the piles, wood planks are placed horizontally bridging between the piles to hold the earth back on the other side – to shore up the side of the excavation from caving in.  In this case, the earth at the back is adjacent the earth comprising the foundation soils of the existing building.  The planking or lagging “follows” the excavation down.  This is a soldier pile shoring system.

A soldier pile shoring system is a good support system if constructed properly and its limitations kept in mind.

Research construction technique

I researched the soldier pile shoring system and found that it “gives” or yields a little – deflects along it’s height – when mobilizing its strength to provide support to the soil it is retaining.  The retained soil behind the shoring system gives a little as well – moves sideways and away from the foundation soils to which it is providing lateral support.  This undermines the foundation soils a little causing the soils to settle and the building foundations to settle as well.

This deflection is due to the piles bending along their length.  The piles will also tilt a little if they are not driven or embedded deep enough during installation.

This lateral movement of the shoring system and settlement of the soils and foundations is normal.  It can be negligible – tiny millimetres or less – if the shoring system is properly designed and installed.  The movement can be significant –  centimetres, inches or more – causing damage to the foundations, if the support system is not well designed and installed.

Installing soldier piles by driving them in place causes the soils in the immediate area to vibrate.  Soil settles when it is vibrated.  Anything in the soil – like building foundations – settles as well.

Cause

I analysed the data that I had collected – construction of the shoring system and the results of my research – and concluded the cause of the failure and submitted my student engineering report.

In this case the soldier pile system deflected too much causing the foundation soils to yield or move sideways and settle in the process.  This caused the building walls to settle as well and the corners to crack and open up.  The soldier pile deflection was probably due to a combination of the following causes noted above:

• Vibration of the soils during installation of the piles
• Tilting of the soldier piles due to shallow embedment
• Deflection along the length of the piles

Post mortem

I passed my year so I must have got it right.  I understand that some of the engineers who inspected the soldier pile system that failed may have been my professors who had formed a consulting engineering company to do this type of engineering design and inspection work.  Failures occur in spite of the best efforts of the best people.

So much of what we do in forensic investigation doesn’t lend itself to clean and tidy text-book investigation and analysis.  It’s messy and difficult to wrestle to the ground as to cause.  It also takes time.

I thought this after I posted a blog two weeks ago on getting hard evidence from soft data; getting the speed of a vehicle in an accident from the images on mobile phones. (Ref. 1)  I blogged at that time on a lecture by Major Adam Cybanski, Ottawa, on a new forensic method for assessing the speed of vehicles in an accident. (Ref. 2)

If you could see some of Adam’s lecture photographs and video showing aircraft, cars and people flying through the air and crashing, you’re certain to wonder: How can you measure and analyse something like that?  Disturbing images.  Surely traumatizing for the forensic investigator to see on site.

There was one picture of an airliner – not the TransAsia flight 235 crash mentioned in the lecture but that one too – nearly vertical in the air, nose down and a few metres from hitting the ground.  An aircraft filled with passengers.

If you could see the condition of some cars after a traffic accident that Dr. Stuart Smith and others in CATAIR investigate, that includes doing crush measurements, you’re certain to wonder about this too. (Ref. 3)  I’ve helped Stu a couple of times do these measurements; not a pretty sight.

Less visually disturbing – unless you are the owner – seeing undulating floor surfaces in multistory buildings or bent steel beams in half-built bridges you might wonder: How can a forensic expert analyse odd failures like these?

I sometimes wonder too and I come from a civil engineering background specializing in geotechnical and foundation work – measuring and engineering the messy ground.  We get it done because we have our models and semi-empirical relationships developed over decades of field observation, research and engineering practice.

Models help us figure out the cause of messy failures and accidents but their development takes time and lots of thought and hypothesizing.  I’m not surprised it took Adam months to get his analysis time down to a few days from a few months. (Ref. 1) In fact, I’m surprised it came together so quickly for him.

These models and analytical procedures show up in textbooks but not right away, not until someone has figured out the mess from a lot of failures.  I had one client surprised that forensic engineers must sometimes research topics for which little is known or vary geographically.  He thought we knew everything – a nice image.

***

(CATAIR; the Canadian Association of Technical Accident Investigators and Reconstructionists)

(Model: A set of ideas and numbers, based on existing data, that describe the past, present or future state of something.  For example, how the economy might react to a change in interest rates or a type of failure or accident occurred in the built environment.  Models are updated with new data as required.  After Merriam-Webster dictionary, January, 2018)

References

1. Getting hard evidence from soft data.  Posted January 10, 2018
2. Cybanski, Major Adam R., Gyro Flight and Safety Analysis, Ottawa, 2017 http://www.gyrosafety.com
3. Smith, Dr. Stuart, C. R. Tyner and Associates, Dartmouth, Nova Scotia  crtynerassociate@eastlink.ca

Damaged foundations can result in civil litigation

I was contacted recently by a good friend in the U.K., Len Threadgold.  Len wanted to know how geotechnical investigation services are procured here.  This kind of investigation determines the physical properties of the soils and rocks that support foundations.  Engineers use this data to design the foundations.

Such an investigation is needed at every site because the foundation soil and rock conditions vary from site to site and across a site.  I learned when I practised in the U.K. to “Expect the unexpected” when assessing foundation soil conditions.  A similar mantra goes into the field with every geotechnical engineer in Australia – “If in doubt go deeper” – to stronger soils.  I had that drilled into me down there too.

Len is chairman and chief engineer of Geotechnics Ltd., a geotechnical and environmental engineering firm with offices in several cities in the U.K.  He was recently awarded the John Mitchell gold medal by The Institution of Civil Engineers (ICE) for “Excellence in geotechnical practice”.  Len will give a talk in London at the ICE on January 24 on Re-thinking Site Investigation – Design, Practice and Procurement to commemorate the award.

How is all this relevant to forensic engineering investigation?  Because many, if not most foundation failures are due to inadequate investigation of the ground which supports all building and civil engineering construction.  Damaged foundations can result in civil litigation.

Why are the investigations inadequate?  There are different reasons including foundation soil investigation services that are too often procured on the basis of low price in Canada and the U.K.

The barest minimum investigation is (too) confidently recommended in the interest of keeping costs down.  This can lead to foundation failure and major cost overruns – there’s no money in the quote for chasing the evidence across a site if unexpected conditions are found.  Cost and bottom line trump quality.

Often enough no investigation is carried out and hope rather than engineering analysis prevails.

Some studies in the U.K. indicated that project cost overruns due to unexpected ground conditions amounted to about 17.5% of project cost for highways (Ref. 3) while the cost of geotechnical investigation was on average 0.21% of project cost.  Cost overruns were 83.3 times as much as investigation costs!  If the difference between quoted prices for site investigation was 10% then this ratio becomes 833!! (Ref. 4) – not a sensible cost-benefit ratio.

So decisions on who to retain for a geotechnical investigation are based on trivial amounts of money, amounts much less than the cost of the reception desk in some offices and probably the cost of the opening ceremony. (Ref. 4)

I can’t help but think a similar situation exists here in Canada.

(Nor can I resist noting that some people shop around for expert forensic services on the basis of low price, and similar problems with inadequate forensic investigation may well result)

Parents instill confidence in us but remember Mom is just below the ground surface ready to scold if we accept low quality to save a dollar.

References

1. After, Professor, Sir A. W. Skempton, U.K., “Optimism and overconfidence may impress one’s clients but they have no influence on the great forces of nature”.  Address of the President. Proceedings of the 5th International Conference on Soil Mechanics and Foundation Engineering, 3, 1961, pp 39-42.
2. Clint Eastwood in the “Dirty Harry” movies, 1971 to 1988
3. Stuart Littlejohn, Inadequate Site Investigation, The Institution of Civil Engineers, U.K., 1991
4. Personal communication with Len Threadgold, Geotechnics Ltd., U.K., 2017 (An initial chat with Len on his ICE award gave me the idea to blog on this topic of inadequate geotechnical investigation, foundation failure and civil litigation)

It’s good for the judicial process and the injured party if you let us know if you’ve worked with experts in the past.  We catch on soon enough.  Get it out in the open at the start.  It’s also good for managing the cost of civil litigation.

Simply say, “I haven’t needed an expert before but do on this case”.  We all got to learn so it’s okay.

We can help you understand what’s involved in forensic investigation, what we need to do to be Rule 55 compliant (Nova Scotia) and how to manage costs.  Help you understand the investigative process that we must adhere to – our profession’s guidelines – in the same way experts are expected to have some understanding of the judicial process.

I’ve been blogging to that end for 5.5 years – to help you understand – and it’s paying off if reader feedback is any indication.  Still, some of you are a hard sell and cases go south for want of understanding.

I chide you about this because it’s important to get it out on the table.  I can help bring you along in this new relationship as you would me in understanding the civil litigation process.

I thought to suggest this after reflecting on some embarrassing exchanges over the years – another just recently – and not just with younger counsel.  One senior partner in a firm didn’t know that expert’s reports are sent via email today.  You could hear his silence over the phone.  Another estimated the total cost of a forensic engineering investigation at less than the invoiced cost of preliminary work.  Still another didn’t know that experts invoice on completion of individual stages in a forensic investigation, not for several stages in advance.

Don’t wing it.  Get it out there if you are relatively new to this.  You will learn how to work with an expert and control the cost of your case better.

I was retained to investigate the cause of an accident involving the plaintiff using one of his tools.  People have been killed using this type of tool, it’s that dangerous.  The plaintiff believed there was a defect in the tool.  Graphic photographs of his injuries would certainly lead you to believe that – an initial hypothesis.

I was asked to peer review a report by another engineer and to examine the tool for wear sufficient to cause the accident.

The other engineer reported test-using the tool but, as evident in his report, not during a re-enactment of the accident.  He found a few things wrong with the tool but nothing to suggest it was defective.

I was surprised that the engineer did not re-enact the accident considering his stated years of experience investigating accidents.

I reviewed the report, researched howhis  the tool operated and examined the exterior.

I video taped the plaintiff re-enacting the accident and recorded his explanation of how he was injured.  I had him do this three times just to be sure and video taped his demonstration from different angles.

Evidence from the video and the interview was quite revealing as to cause but questions arose when this evidence was considered in light of evidence from the graphic pictures of the plaintiff’s injuries.

I retained a tool repairman to dismantle the tool and visually examine the interior surfaces for wear and defects.  He found nothing.

At this point in my investigation:

• The nature of the injuries depicted in the pictures suggested one cause
• The re-enactment suggested a different cause
• The tool operated properly according to the repairman, supporting the different cause

The tie-breaker – justifying modifying the initial hypothesis on cause – were comments by the plaintiff during his interview on how he was using the tool coupled with how the tool operated.  Turns out he was using the tool in the most dangerous way, but one of several ways it could be used.  Also turns out that the material he said he was using didn’t exist as he described, except as a special order.  A similar, readily available material suited to the job he was doing could explain the contradiction raised by the graphic pictures.

To summarize the tie-breaking bullets:

• The plaintiff said that he was using the tool in the most dangerous way, supporting the different cause noted above
• The material he probably was using could explain a contradiction in the graphic injury pictures, also supporting the different cause

Based on the evidence, I modified my initial hypothesis that a defect caused the accident to believing that the plaintiff caused the accident by his actions when using the tool in the most dangerous way.

***

A spoiler?  As noted above, the plaintiff reported using the tool in the most dangerous way.  But, on being retained, I was given the tool rigged to be used in one of the safest ways.  This might have spoiled my modified hypothesis, but didn’t – the tool had passed through at least four sets of hands by the time I got it.

My client decided against further forensic investigation.

***

Design, manufacture/construction and maintenance/repair are three main stages in development and use of an item in the built environment, like a tool.  My investigation covered maintenance/repair when assessing if the tool in this incident was defective.

Retaining experts in design and manufacture to examine the tool would be a stage in a forensic investigation like this.  However, taking this step would not be justified considering the strength of the modified hypothesis and the cost of experts in design and manufacture.

My investigation several years after the incident cost money.  It would have cost less, as would the civil litigation in general, if I could have interviewed the plaintiff several days after the incident, or after my client took the case, and video taped him re-enacting the accident.  I’m certain the evidence from such simple tasks would have cast the merit of the case and the worth of the file in a quite different light.

Case take-aways

My take-away from this case is to get my iPhone out of my back pocket and video tape a re-enactment of an accident ASAP and have the victim describe it.  It might be rough – iPhone forensic video – but this quick and dirty stuff can pay dividends in a forensic engineering investigation.

My client’s take-away? Possibly an old saw – retain an expert early preferably during the merit assessment stage or a few days afterwards and save money on civil litigation.

Sinkholes, like the one that undermined the house in Falmouth, Nova Scotia last week, are a serious issue for subdivision and lot developers.  As reported in the newspapers, the risk of sinkholes forming in an area can be known from published maps. (Refs 1, 2)  And the cavities in the ground associated with sinkholes can be found – before construction.

Sinkholes start their life as roofed-over cavities at some depth in the limestone, gypsum and salt deposits beneath an area.  The cavities get bigger and the roof gets thinner as rock like this dissolves in the ground water.  In a sense, the cavities “migrate” to the ground surface and eventually break through as sinkholes.  The fairly precise size, location and depth of cavities can be determined beforehand.

The technology for locating cavities in rock is well developed and has been around a long time.  It’s called ground penetrating radar, GPR for short, and it’s well known to experienced geotechnical engineers.  I used GPR years ago to locate cavities beneath an airport runway on South Andros Island in the Bahamas.  The same technique is used for locating unmarked graves.

It sounds technical but all it involves is sending radio waves into the ground and analysing what is reflected back.  There’s nothing too exciting in the data that comes from uniform soil or intact rock.  But lots of excitement in the data from a cavity, a well-recognized anomaly to the GPR operator – and a potential sinkhole beneath a building. The remote sensing, non-intrusive technique is not unlike CAT scans and MRIs in medicine.

The type of potential sinkhole I was looking for at the airport is called a banana hole. So named because banana plants grow in the sinkholes once the cavities break through the surface.  A banana hole/sinkhole can be seen in the runway by an inbound pilot but not the roofed-over cavity just before it breaks through the surface.

Geo engineers investigate the adequacy of the foundation soil and rock conditions beneath a site where someone wants to build something – like a house, for example, or a bridge, dam, or airport runway.  The conditions would not be adequate if there was a cavity beneath the building site.

GPR would not normally be used on a building site in the Atlantic provinces, nor in Canada for that matter.  But it certainly should if deposits of limestone, gypsum and salt are noted when the engineer checks the published geology of the site – an important and standard task in a geo investigation.  These types of rock with their inherent risk are not so common but they do exist as noted in the news report on the Falmouth sinkhole.

If there’s a risk and the technology is available to quantify it, and it’s not used, then it seems to me it’s a potentially litigious matter.

References

1. Falmouth: Sinkhole wrecks family’s house, pg. 1, The Chronicle Herald, Halifax, Tuesday, September 5, 2017
2. Geological conditions: Sinkholes not unusual in N.S.: Scientists, pg. 1, The Chronicle Herald, Halifax, Wednesday, September 6, 2017

The following blogs – and good reference material in some – will help you manage the cost of civil litigation involving experts.  Careful management is necessary because most cases are small or medium sized not big – “less affluent, not affluent” to reflect comment by The Advocates Society, Ontario. (Ref. 1)  Yet lawyers must still prepare before going to trial (Ref. 2) and experts must investigate before giving an opinion – regardless the size of the case.  Proper preparation and investigation can be expensive.

These blogs describe things you can do to keep tabs on costs.  Some ideas echo the principles followed in the well-developed field of project management.  Several suggestions, like the following, stood out as I reviewed my postings of the past five years:

• Retain an expert early
• Retain one according to your needs – by one count, 10 different ways
• Confer with s/he often
• Work together to identify the key technical issues that must be investigated

There are a number of helpful suggestions in the following list in addition to the bulleted ones above.  The chronological list also gives some idea of how my insight has developed over the years.

The list of blogs gives the title in bold and the date I posted it so it’ll be easy to locate on this site, the one you’re on – www.ericjorden.com/blog   I’ve reviewed each recently and added a comment on some of the ways each posting can help you – read my comments if nothing else:  There’s something for everyone in the following list.

1. “Technical” visual site assessments: Valuable, low cost, forensic method.  Posted September 4, 2012 … A good read on the cost effectiveness of a simple visual assessment by an expert of the scene of a failure or accident.  Have this done before detailed investigation is begun – ideally when you assess the merit of the case and the worth of the file.  It’ll save money.  The blog includes examples from my practice, some of which show the value of this inexpensive method before an advocate actually decides to take a case.  I know of one case that such an assessment would have saved the luckless client many 1,000s of dollars (I was retained late in the case to peer review the forensic investigation).
2. Steps in the forensic engineering investigative process with an Appendix on costs.  Posted July 15, 2013 … A detailed outline of the tasks in forensic work with brief comment on the difficulty estimating cost taken from a previous blog.  A must-read for non-technical people who must confer with experts.
3. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2013 … Another must-read.  Examples taken from my files illustrate the difficulty.
4. (Fairly easy) Estimating the investigative cost of a catastrophic engineering failure.  Posted August 13, 2013 … The pictures of this failure are amazing!  Also my concluding remark considering the magnitude of the failure shown in the pictures: “So, estimating the cost of investigating the cause of a catastrophic failure is not always difficult.  And, if you don’t mind, estimating the cost of investigating a simple failure is not always easy.” 
5. Managing the cost of civil litigation.  Posted September 19, 2013 … Outlines a detailed, stepped process for managing costs.  Based on principles from the well-developed field of project management.  The process is characterized by frequent updates on cost-to-date and estimated cost-to-complete, for both legal and expert involvement in a case.
6. How to manage the cost of civil litigation.  Posted October 4, 2013 … A good read with lots of ideas.  An update of a previous blog that expanded the section, “Why must cost be managed?”  Contains a list of helpful references.
7. Reducing the cost of forensic investigation – it’s being done now by default not by plan.  Posted September 14, 2014.  You may see your actions reflected in this blog.  An insightful read.
8. Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2013 … A must read.  A good, detailed review of what engineering experts are up against when attempting to estimate the cost of the different tasks in a forensic engineering investigation.
9. “If you measure it you can manage it” – and do thorough forensic engineering and cost effective civil litigation.  Posted June 18, 2015 … A real good, short read and helpful in cost management.
10. “Expensive” experts are not so expensive compared to the cost of key technical issues going undetected.  Posted December 8, 2015 … Contains good advice from noted and respected authorities in the legal profession.  Also lessons learned from a few cases I’m familiar with.
11. Peer review costs can be controlled.  Posted January 22, 2016 … A good read on managing the cost of civil litigation costs by how you retain an expert.  See at least 10 ways if you count retaining an expert at the case merit-assessment stage or as a testifying expert.
12. Cost control in civil litigation.  Posted September 8, 2016 … Some blunt comment on managing costs in a suggestion to APTLA (the Atlantic Provinces Trial Lawyers’ Association) to hold a conference or include a session on managing the costs of civil litigation involving experts)
13. Keynote speaker on cost control in civil litigation.  Posted September 22, 2016 … A follow up suggestion to APTLA on how to organize a conference on cost management of civil litigation involving experts that would include keynote speakers from both the legal and expert communities.
14. Managing the cost of civil litigation when experts are involved.  Posted March 19, 2017 … Explains a low cost method of doing this – basically, counsel and expert meeting very early in the case and talking about the technical issues.  If possible, investigating one or two technical issues certainly results in less expensive civil litigation than investigating several.  Examples from my files of cases that went well, and one case – not so much.
15. Conference call on a “drone flight” reduces the cost of civil litigation.  Posted May 18, 2017. (Also see a blog posted March 31, 2017) … I’m getting a lot of cost effective evidence with unusual investigative techniques.  For example, with aerial video and photography from a low flying drone.  Also learning the source of water at a slip and fall accident site by taking a cold shower at the site.  And measuring the skid resistance of a floor with a piece of pig’s belly.  Advocates and experts must be receptive to non-textbook tricks in the interest of managing the cost of civil litigation.
16. “A rose by any other name…”; Primers for lawyers.  Posted December 19. 2016 … An insightful blog inspired by a lawyer’s comment at an APTLA conference last November. (Ref. 2)  He was right on the money.  A lawyer must prepare before going into court and an expert must investigate before giving an opinion – and this can be expensive.  A good blog on a client’s need to know.
17. An expert’s fees and forensic engineering.  Posted July 5, 2016 … An indication of the average hourly billing rates for professional engineers in the Atlantic provinces for different levels of experience and responsibility.  Rates not too much different than lawyer’s fees.  Knowing these helps in managing the cost of civil litigation.

 References

1. The Advocates Society, Toronto, Ontario, Principles governing advocates communicating with testifying experts, June, 2014.  Posted June 11, 2015
2. Pizzo, Ron, Pink Larkin, and his comment “…lot of preparation beforehand – a lawyer just doesn’t walk into court”.  APTLA conference, It’s all wrongful: Death, Dismissal, Conviction & More, Halifax, November 4, 2016

I was impressed a few months ago by the unexpected evidence I got from video of a site taken from a drone.  Impressed to the extent that I flew another site a few days ago, but this time looking for the “unexpected” evidence.  The experience confirmed the importance of filming the site of a forensic investigation from a low flying drone.

A few months ago I videotaped a compact site – couple of 100 feet square – for record purposes.  I did this for 35 minutes from several 10s of feet. On looking at the video I saw a feature of interest relevant to the problem I was investigating.  It was not evident when I walked across the site in an earlier visit.

Talking with the property owner later I learned that the feature seen in the video marked a characteristic of the ground that was very important to understanding the problem I was investigating.

A few days ago, I video taped a long, narrow site – 1,500 ft. x 200 ft. – from an altitude of several 100s of feet as well as 10s of feet.  This time, however, I looked for a feature in the video that I had seen on the ground at one end of the long site.  It was relevant to the problem I was investigating.  I found it, then studied the video for the occurrence of the feature elsewhere along the length of the site and noted these locations. This was sort of the reverse of the situation at the compact site.

Put another way, a few months ago I identified a feature of interest in a video, and had it confirmed on the ground.  A few days ago I identified a feature of interest on the ground and had its location elsewhere on the site confirmed with a video.

***

This process is called terrain analysis in engineering:

• You identify the different features at the ground surface appearing in aerial photographs,
• note the characteristics of the subsurface implied by the shape and look of each of the different features,
• then assess how these subsurface characteristics relate to one another and to the problem you’re investigating.

For example, how does the strength of the subsurface soils relate to the foundation failure of a building, bridge or highway?  Or the subsurface drainage characteristics relate to the location of fuel oil spilled on the ground some time in the past?

I’ve done terrain analysis for years using aerial photography often taken from 6,000 feet – a long way up.  It has been useful – but not at all, at all like the detail you get from low level drone photography.

***

The drone videotaping at the compact and long sites was similar.  Take orientation video from the four sides of the site from a high altitude then close up video of different features at a low altitude.

I’ll study the video of the long site in greater detail then select optimum places on the ground – representative and cost effective – for collecting subsurface data and solving the problem I’m investigating.  The data won’t really be “unexpected”.  I’ll get what I expect to get – the depth to the water table, and water and soil samples for testing.

The unexpected evidence a few months ago reminded me about the value of aerial photography in forensic engineering investigation, and the greater value today of low level, drone photography.  I was also reminded to be on guard against the tyranny of the obvious, to expect the unexpected in forensic work.

I blogged for different reasons the past five years (see Ref. 1 for a good read) including simply liking to write, expressing myself that way.  I also belong to a group that could be characterized as a story-writing and -telling group.  Chronicling a forensic investigation is telling the story of the investigation – a good and simple way of explaining it to the judicial system.

But I’ve realized even more lately that striving to blog well, write well, partly out of respect for my readers, trains me in another way:  To think and analyse on paper, formulate an opinion then present it in a well-written expert’s report.  And it’s so effective when you get to the word processor stage after the cursive writing stage.

I’m in the middle of analysing data now on two cases and formulating opinions.  It will go on for a good few days yet as I turn the data over in my head and squeeze the truth of each matter out on paper – also as more data comes in from follow-up investigations.

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
• Measure and test
• Analyse and assess
• Draw conclusions
• Formulate opinions
• Present reliable evidence to counsel and the court or tribunal in simple, non-technical English in well-written, experts’ reports

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 – e.g., your thoughts – drafting a talk or preliminary report, noting an item to remember – has been around a long time.  I carry a journal with me most times to capture a thought along the way (I don’t like to dictate to my cell phone because of security issues)

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 did drop and make a louder noise recently.  I thought I must tell you this.

References:

1. Why do I blog on forensic engineering investigation? Posted July 22, 2016.

Monitoring the clean-up of a fuel oil spill in 2000 paid off early this year.  The pay-back was the recent opening of a file at the Nova Scotia DOE based on records I kept that confirmed the residential property had been cleaned up.  I was retained at the time to ensure the remediation conformed to good engineering practice – peer review.

(By contrast, the benefit from peer review in civil litigation – quality control of the thoroughness and objectivity of the forensic investigation – is immediate, rather than years later. Refs 1, 2 and 3)

A DOE file on a residential property is normally opened after fuel oil spills and closed on receipt of a report that the property has been cleaned up.  It was missing in DOE’s files as the property owner – my client 17 years ago – learned in anticipation of selling his property.  Buyers and sellers both want assurance that a property is clean and that comes from DOE’s files.

My client asked and I confirmed that I had a copy in my files of the final report by the engineering firm who did the remediation plus all my field notes and photographs taken during my work.

Why the usual file was missing 17 years later is not so important to my story – except to draw attention to the worth of peer review.

The story began in early 1999 when my client smelled oil in his home.  Investigation by a consulting engineering firm at his neighbour’s property uphill found that a 200 gallon furnace oil tank had leaked an unknown quantity of fuel oil.

The firm supervised the remediation of the property.  This involved locating and excavating the contaminated soil and removing it from the property.  Some soil was also excavated from my client’s property.

My client, a retired professional engineer, wasn’t so happy with the firm’s recommendations for remediating his property.  At his request, the insurance company retained another consulting engineering firm to do an independent assessment – in a sense, the start of the peer review process.  This was done and their assessment was accepted.  The second firm then went on to direct remediation of my client’s property.

My client was still uneasy because of the two sets of consulting firms and clean up operations on adjoining residential properties.  He retained me to monitor everything that took place on his property.

Remediation of fuel oil spills is fairly simple in most cases in the Atlantic provinces relying as it does on the scientific method and basic engineering.  It just looks difficult because it’s messy.  Remediation involves:

• Learning the location of the oil or where it might have drained,
• Sampling and testing the soil and ground water for oil at those locations,
• Removing soil that has too much oil by acceptable standards, and,
• Replacing the contaminated soil with clean soil.

Possible locations are identified by:

• Characterizing the drainage pathways of the subsurface soil – the medium that the oil will flow across and through – often, simply contouring the surface of the ground, and,
• Also determining how foundations are constructed on a site that might be affected by soil that has too much oil.

An analogy: Spill water on your house floor, and in mopping it up you look where some of it has drained because you know the floor is almost level, but not quite – the character of floors.  And you clean it up because the floor might be damaged by the water if it’s not.

***

Peer review is checking that something has been done to an acceptable standard.  We often associate it with review of a report – check that it’s well written and that the data has been analysed according to scientific principles.  It can involve confirming that the forensic investigation was carried out to an acceptable standard and the data is reliable.  Peer review can also mean checking that something is being done properly as it’s being done – the situation at my client’s properly.

“Hot tubbing” might be thought of as a form of mutual peer review – experts from different parties in a civil litigation case gather round in a meeting and review each other’s report.  It’s increasingly accepted as a case-expediting and cost management technique. (Ref. 4)

In my case in 2000 I was on site full time to note what was done and that it conformed to good practice, to independently measure and photograph the clean-up as it progressed, attend site meetings and report daily to my client.

In general, the work was done very well, and good records kept that saved the day 17 years later.  There was one issue about the need to construct a groundwater monitoring well – a way of checking for oil in groundwater over time, oil that we don’t want.  This resulted in independent investigations, reports and opinions – including my own.  There’s always a few issues that are resolved by experienced engineers talking.

***

Peer review cost my client money.  But it would have cost him an awful lot more money if he tried to sell his house and the word on the street was of an oil spill on the property and no records were available that it was cleaned up properly.

It’s not too much different in civil litigation.  A cost up front for peer review of a forensic investigation, or a much greater cost later when rebuttal of an inadequate investigation and a poorly written expert’s report is turned into a nightmare. (Refs 3 and 5)

References

1. Peer review in forensic engineering and civil litigation.  Posted November 26, 2013
2. Peer reviewing an expert’s  report ensures the justice system gets what it needs.  Posted January 15, 2016
3. Peer review costs can be controlled.  Posted January 22, 2016
4. Biased experts cured with a soak in the “hot tub”.  Posted January 31, 2017.
5. Mangraviti, Jr., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, the Preface, SEAK, Inc, 2014