“I expected you to know that and not charge for researching it.“

This was the gist of a recent exchange I learned about between a civil litigation lawyer and an engineer.  But, should he have known?

The lawyer was concerned about the engineer charging fees for researching a technical issue.  It so happened it was in an area of practice that was not so well defined in eastern Canada.  Hardly known at all for that matter.  In this case, information about the different ways of testing for a particular physical property of a material.  Also information on guidelines, standards and codes for evaluating the test results.

I also learned that the different test methods had their pros and cons.  One method had some acceptance in Ontario and the New England states but was not available in eastern Canada.  Identifying and carefully evaluating a suitable alternative method was necessary in this forensic case.  A poorly defined situation also existed for guidelines for evaluating the test results.

I thought about forensic investigations that I’ve carried out over the years.  Some with technical issues that I needed to research before the investigation could be completed.  Technical issues that come along once or twice in a forensic-engineering-practice lifetime.  It’s unreasonable to expect an engineer to be up to date on such obscure issues, unwise if he doesn’t research them, and wrong if he doesn’t get paid for doing the research.

Examples from my files of cases needing research

Very small tunnels don’t fail very often in eastern Canada – when was the last time you heard of one?  For example, pipe tunnels that carry utilities under infrastructure.  But when they do fail then soil liquefaction and tunnel driving methods might need to be researched – technical issues that don’t crop up very often at all.  An engineer would be wise to research the state-of-the-art for these topics.  I did in one insurance case but the party responsible for the tunnel failure unfortunately didn’t.

(Soil liquefaction is the process of a soil becoming liquid when vibrated)

Inadequate underpinning  Fluid-like concrete, ‘flowable fill’, is used often enough in eastern Canada.  But concern about the slight shrinkage of the concrete on setting up – small fractions of an inch, holds little interest.  It’s just a wee bit too exotic for day-to-day engineering where the interest most of the time is simply filling a hole in the ground.

Except when counsel wants to know if a building was adequately underpinned, and the magnitude of such shrinkage figures in the assessment.  Then this obscure, seemingly insignificant characteristic must be researched.

Investigating slip and fall accidents is another poorly defined area of practice in eastern Canada.  Even when a person is wearing standard footwear the practice down this end of the country is not well defined.  The guidelines and codes are virtually silent.

The obscurity goes to another level when a person in their bare feet slips and falls on a wet surface – that is supposed to be dry, in a public place.  What do you use to simulate a bare foot in testing skid resistance under these conditions?  (Research told me what)

Factor in complex slip and fall biomechanics and an engineer can’t get out of the investigative starting-gate until he’s done some research.  Some of this engineering is once-in-a-life-time-of-practice in eastern Canada, and I suspect in other areas as well.

How about a man who falls off a step ladder with a slightly bent leg, strikes his head and dies?  What kind of expected knowledge would guide an engineer on how to investigate whether or not the bent leg caused the accident?  There was none and there was nothing in the engineering text books either.  I found the answer when I researched the work done by movie stuntmen.

What about the man who struck an obstacle on the highway, lost control, drove off a cliff and died?  How to investigate if the obstacle contributed to the accident?  A literature search established that the answer was in speed bump research.  Checking that research led to a field investigative test method that established the contribution made by the obstacle.  Counsel for the RCMP got their answer from preliminary findings – it was too dangerous to continue with the field testing.

These problems

I’ve had all these problems and others cross my desk in recent years and my clients understood the need for research and my need to be compensated.

Figuring out on a need-to-know basis

As engineers and applied scientists, we often work on a need-to-know basis, figuring out what to do and how to do it when the need arises.  And often enough it involves research when the knowledge doesn’t exist in the locality where the failure or accident occurred and the engineer practices.

Engineers are educated and trained to investigate and figure things out based on first principles.  They don’t expect to know everything from the get-go.

I took about 57 different courses in getting my two degrees in civil engineering and they were all about first principles.  And studied a number of other subjects during a two year land surveying course.

Engineers must research poorly defined areas of practice

If there are myriad ways of testing the physical property of a building material then it’s smart to research the most suitable method for the locality where the failure or accident occurred.  Particularly when any one type of case doesn’t occur that often, and test methods might have changed in the interim.

As well, if widely accepted standards for evaluating the test results don’t exist in the area where the problem occurred then standards and historical usage in other areas must be researched.  This is the only means of gaining some understanding of the significance of the test results in the locality of interest.

Experts don’t know everything – and when they don’t know they do what’s necessary, they research

Counsel and the engineer in the situation quoted above would be better informed if they read some of the decisions by judges in the supreme courts in eastern Canada.  Go see what happens to experts who don’t research engineering practice that is poorly defined in their locality, and in many others.  See also what happens to counsel’s case and the client’s claim or defense.

It’s unreasonable to expect an engineer to be up-to-date on infrequently occurring problems in poorly defined fields of practice, unwise if he doesn’t research them, and wrong if he doesn’t get paid for the researching.

.

I had an idea recently about how counsel can reduce the cost of forensic engineering investigation – in a planned way.  Some of you are actually doing it now but by default – rather than by plan.  You are defaulting to using your professional engineer as a consulting expert rather than as a testifying expert – but doing this years after you take the case (Ref. 1)

My thoughts were driven by how counsel are reacting to the early costs of an investigation.  Also how geotechnical engineering – a specialized field in civil engineering, reports on the geotechnical investigation of foundation soil conditions.  (I specialized in geotechnical and foundation engineering work for quite a few years)

Factual and interpretative reports in engineering

Two types of report can be issued in geotechnical work: – a factual report and an interpretative report.

(Stay with this; it does relate to civil litigation quite quickly)

A factual report gathers together all the data from the office, field, and laboratory investigations and submits this to the client – without analysis and interpretation.

An interpretative report analyses and interprets this data and draws conclusions on the foundation soil conditions and their significance to the design engineer.  The latter can be quite comprehensive, particularly if foundation conditions are complex.

The cost of a factual is easier to predict and control.  The cost of an interpretative report is difficult to predict and control.  Sometimes very difficult because you don’t know what you are going to find at the site of an engineering failure or accident if you follow the evidence. (Ref. 2 and 3)

Geotechnical clients will actually specify the type of report they want, a factual report or an interpretative report.  This is quite prevalent in the U.K. and followed at times in Canada and the U.S.

Factual reports in civil litigation, by default; not so good

I see something like this happening now in civil litigation – counsel deciding on a factual-type report or no report at all.  But, driven by the shock/surprise at the cost of expert services and forensic engineering, rather than driven according to plan.  Particularly when counsel did not confer with an expert at a very early stage of civil litigation and get a feel for these costs. (Ref. 1)

Counsel are sometimes deciding against further investigation when – I suspect, they see investigative costs coming in and the worth of the file to the firm being whittled away.  They quickly default to using the professional engineer as a consultant rather than as an expert. (Ref. 1)

Factual reports in civil litigation, by plan; good

Counsel ask for a preliminary report, a verbal report, or no report at all, relying instead on a verbal discussion of the findings.  Some of this reporting is quite factual as opposed to interpretative.  This is quite okay, but much better if it’s planned at the start of litigation rather than defaulting to this several years down the road. (Ref. 1)

References

1. How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system.  Posted May 1, 2014 http://www.ericjorden.com/blog/2014/05/01/how-experts-are-retained-in-civil-litigation-is-changing-and-the-changes-are-good-for-counsel-and-the-justice-system/

2. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013 http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/

3.Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2012 http://www.ericjorden.com/blog/2013/09/01/why-the-difficulty-estimating-the-cost-of-forensic-engineering-investigation/

I had occasion in the past week to reflect on how readers benefit from my blogging.  I was drafting e-mails at the time to potential readers.  Then, last Thursday evening while swimming in Halifax, the somewhat related question popped into my head, “Why do I blog?”

Why do I blog?

1. To increase the justice system’s understanding of what’s involved in forensic engineering – the nature of this engineering discipline and the methods used
2. Also, to help readers understand why it takes time and money to thoroughly and objectively investigate the technical issues of a case
3. To better understand this field myself, to learn by writing the blogs and “thinking on paper” – particularly, on how addressing the technical issues supports the resolution of disputes
4. To increase my understanding of the civil litigation process
5. Because of a sense of obligation to my readers who have seen the blog for over two years now and perhaps have come to expect it – to fill a void I think was there
6. For that satisfied feeling that comes from creating something – a piece of literature that did not exist before

More detail on why I blog

Increasing my reader’s understanding of the forensic engineering work I enjoy doing and its contribution to the resolution of disputes – that’s a big reason.  Also to help you appreciate the reason for the associated time and costs.

This by raising the awareness of counsel and managers to what`s involved in the forensic engineering investigation of the technical issues in your cases and claims.  Some disputes are so very technical in nature.

I also blog to increase my understanding of the civil litigation process.  I do my work better when I understand the process I’m part of and how my work fits in.  Readers might not know that most books on forensic engineering and science have a quite detailed chapter or section on the civil litigation process.

I blog because I like to write.  After years of investigating the cause of engineering problems, failures and accidents – initially specializing in civil engineering, and soils, foundation, and environmental engineering, and writing reports on these problems – often for non-technical readers, I feel I can write.

I’ve always written for readers at the interface between my area of expertise and those in other specialities, as well as for the general public.

Another interesting reason: A few months after I started blogging in mid-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 – I created a piece of literature that did not 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.

I do feel obligated to keep my blog going for the benefit of my readers.  It`s out there now and I`m certain some do look for it.  I`m certain the chap does, who “…loves that stuff“ and the claims manager who “…reads every one“ (see below).

How long does it take to write a blog?

How long does it take to write a blog?  I`ve been asked that several times.  From first draft to posting, typically about 8 to 10 hours, sometimes a good bit less.  But, sometimes longer when I have to research the literature and flesh out my knowledge of the subject matter.

An idea for a topic comes to mind.  It tumbles around in my head for a little while, but not too long – a few minutes, an hour or two.  I then quickly sit down and knock out a draft in one or two hours.  You have to capture these ideas when they’re fertile.  Then over the next few days I edit quite ruthlessly during several sittings – I`m doing that now.

What you read sometimes bears little resemblance to the original draft.  A piece of writing truly can take on a life of its own.  Some of you are certain to have read this comment by authors about writing.  I’ve experienced it – actually, to a degree, this particular blog took on a life of its own; I’m just along for the ride at this point.  It’s a good feeling when this happens.

Where do the blogs come from?

Where do the blog topics come from?  The topics come from everywhere.  It seems sometimes they`re just out there in the ether.  Some, however, are triggered by news items.  Also, I see a lot of technical literature in connection with my forensic practice and no end of topics come to mind then.

Like I said at the beginning, this blog, on why I blog, just popped into my head last Thursday evening – out of the ether?, while I was swimming a few lengths of a pool.  The topic seemed timely after posting blogs for two years.  So, I put aside the draft of a blog on ‘bias in forensic engineering’.  You’ll see this one another day.

Readers’ comments

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 here 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.

Two senior counsel helped me with two of the blogs on the role of professional engineers in the civil litigation process – critiqued them before posting.  One of these noted that experts are invaluable to civil litigation.

A fellow who blogs on business ethics, and truly has an international reputation in his field – he’s 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 in an issue of theirs a year and a half ago.  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 two years, I`ve only had about six readers request being taken off my distribution list.  This 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.

Future blogs

There will be more blogs in the future; there’s a number of topics identified in my files, and very rough drafts of some of these.  And another topic just came to mind as I drafted this piece.

How about 209 different ways?  A lot to say the least.  Some result in catastrophic collapse of a building.  Others result in inadequate performance of different components of a building.

And they’re all known and understood by engineers, and all have been categorized and tabulated in considerable detail.  (Ref. 1)

(Note: This blog comments on a good, easy-to-read, reference book for civil litigators and insurance claims personnel.  One that is easy to obtain as an interlibrary loan from Memorial University, NFLD.  It will help you understand the technical issues in your cases and claims)

These different ways of failing can all be prevented with adequate planning, design, construction, and maintenance of a building.  One definition of engineering design might be the following: – ‘Identify all the ways a building or structure can fail, then address each and make sure it doesn’t’.

Easy to understand

The different ways of failing can be fairly easily understood by civil litigation lawyers, claims managers and consultants, and property owners.  Knowing this should make your work easier – in understanding an expert’s report and discussing the technical issues and findings with him.

A very good, reference book

David Nicastro, in his book, ‘Failure Mechanisms in Building Construction’, has cataloged all 209 different ways a building can fail, and then gone on to tabulate and cross reference them.  This is all done in quite readable text.  (For Failure Mechanisms, read, the technical cause of failure – it’s easier)

I came across his book while researching the literature on a case I’m investigating now.

The detailed tabulation lists each cause alphabetically down the page then – across the page – notes the building material affected and how each shows up – manifests itself in the building material.

Finally, reference is given to a case history elsewhere in the book illustrating many of the different ways of failing.  There is even a glossary of forensic engineering terms to assist understanding the technical cause further.

An example of how the book can be used

(The item in red is one of the 209 ways a building can fail – selected from the alphabetical list down the page.  The items in blue – column headings across the page – note the distress in the building when the failure occurs, the materials affected, and one or more typical case histories)

For example, a client’s structure experiences:

• Differential foundation settlement – the way in which his structure failed, the technical cause.
• The distress to the structure is manifested as unwanted movement and distortion.
• The materials and systems affected by this movement are the structural systems and foundations.
• A case history in Nicastro’s book is the differential settlement of the temporary foundation support of a bridge deck during construction.

Another example, a client’s structure experiences:

• Corrosion – the way in which a component failed, the technical cause.
• The corrosive distress to the structure manifests itself as an unsightly appearance
• Affecting the component’s materials, the metals.
• Case histories in the book include a steel masonry shelf, and reinforcing steel in a concrete wall façade.  Both corroded with the infiltration of rain water.

Your eyes will not glaze over reviewing this cataloging then the tabulation.  You will feel good at such readily available and easily understood technical data next time you have litigation involving a building failure.

A finishing touch – a good bibliography with sections on civil litigation and ADR 

A finishing touch – if you want additional information, is an annotated bibliography of forensic engineering that includes a separate reference to most of the 209 different ways a building can fail.

The bibliography is arranged in four categories, two of which, in addition to covering the above references, is a little closer to the basic interests of counsel and insurance claims personnel, albeit with a technical bent:

• Litigation and Expert Testimony
• Alternative Dispute Resolution (ADR)

Book based on decades of engineering experience

David Nicastro’s text is a good reference and a big help to all of us who must deal with the failure of a building.  It’s based on Mr. Nicastro and his co-author’s decades of experience investigating the cause of building failures.  It’s been well researched, and it’s published by a well respected civil engineering association.  ASCE has been serving civil engineers and the public in North American since the mid 1,800s – about 160 years.  They publish good material.

This listing and categorizing makes me think…

This listing and categorizing for buildings makes me think that similarly exhaustive lists could be prepared for the many ways that each of the different civil engineering structures could fail.  There’s a quite broad categorizing in a couple of texts but not to the same exhaustive detail as in Nicastro’s book.  (Ref. 2 and 3)  This, possibly, because there are many more buildings in the world than civil engineering structures like bridges, dams, roads, retaining walls, wharves, and causeways.

I will refer my clients to Mr. Nicastro’s book in future.

Reference

1. Nicastro, David H., ed., Failure Mechanisms in Building Construction, ASCE Press, American Society of Civil Engineers, Reston, Virginia 1997 (Readily available by interlibrary loan from Memorial University, Newfoundland)
2. Greenspan, Howard F., et al, Guidelines for Failure Investigation, ASCE Press, American Society of Civil Engineers, Reston, Virginia 1989
3. Janney, Jack R. et al, Guide to Investigation of Structural Failures, ASCE Press, American Society of Civil Engineers, Reston, Virginia 1979, 1986

The tranquil sea coast in the heading is deceptive.

Many forensic engineering problems are caused by water or water is a factor in the problem.  And – at the risk of annoying you, I must tell you that experienced forensic engineers like heavy rain when investigating a flooding or drainage problem.

They’ll also use somewhat unconventional methods to gather data to solve the problem – this blog site is partly about forensic methods.  And think outside the box when analysing the data.

There’s no shortage of flooding and drainage problems in eastern Canada in the spring.

We are almost always interested in how rain and melt water are flowing across a site and around, beneath, and into structures.  We can do detailed topographic and contour surveys – which can take days, and determine drainage patterns and watercourses the text-book way.

Or we can wait and hope for heavy rain – sorry, and note and measure the location of the water as it flows across the site and in the vicinity of the structures.  I often do the latter.  It’s very accurate.

Also, we note in some problems where it’s not flowing – this was relevant in one problem I investigated a few weeks ago.

We’re interested in discharge too.  I went to one site four times in 24 hours to measure the discharge in a drainage channel – I was interested in how quickly the site drained after a rain storm.  Quite quickly as turned out.

Noting where water was not flowing was relevant in another problem I looked at a couple of years ago.  Unfortunately, I was retained after $140,000 was spent in misguided investigation.  Getting out on a rainy day and noting where water was not flowing would have saved an awful lot of money.

Sadly, sometimes there’s no heavy rain when a drainage problem is being investigated.  Or greater flow is needed than can be expected from typical rainfalls for the season.  Fire hoses and water trucks can be used to generate flow.  I planned this for one investigation.

The scene in the heading is Prospect Bay, Nova Scotia, Canada, photographed by J. Knoll, Halifax.

Other days are not as nice as this scene along the 1,000s of kilometres of Atlantic sea coast – almost as long as Canada is wide.  Nor are the 1,000s of rivers and streams that flood – and they certainly have flooded this late winter, early spring, 2014.

The rivers and lakes are still flooding this morning after the heavy rain yesterday as the land sheds the rainfall and melt water in runoff to our watercourses.  And the lakes are overtopping their banks – there are more than 4,000 lakes in Nova Scotia.  That’s just the water you can see on the ground surface.

There is also the ground water – the water table, that you can’t see.  Water that is just below the ground surface or quite deep, and fluctuating up and down all the time – certain to be well up and high after the rain this year.

Ground water flows through the ground much like a river flows on the land; welling up behind obstacles buried in the ground – e.g., foundations and basement walls, like river water wells up behind a boulder in a stream.

Forensic engineers use monitoring wells to measure how ground water flows and drains beneath a site, and also measure ground water discharge.  They are looking for similar parameters to those for surface water.

It’s been said that if you could take the water out of the ground, out of the soils and rocks beneath our feet, you would reduce foundation and ground engineering problems to a fraction.

The camera operator in the heading is filming the re-enactment of a fatal MVA from a sea king helicopter during a forensic engineering investigation.  The sea and snow – frozen water, were factors in the fatal accident.  For this forensic investigation, I set up a full scale test site at Shearwater airbase in eastern Canada complete with:

1. A traffic lane,
2. An obstacle in the lane,
3. A vehicle,
4. Monitoring devices to track vehicle behaviour on striking the obstacle, and,
5. Film crews to record the tests.

The surveyor in the heading is checking the adequacy of the underpinning of a structure during a forensic investigation.

Surveyors also carry out topographic surveys of sites with drainage problems.  But, noting and measuring where the water is draining during heavy rain can often give us all the data we need and much quicker and more accurately.

Judge John Sopinka, Supreme Court of Canada was clear on this matter of retaining experts:

“Much of the civil litigation today, both civil and criminal, involves subject matter which is not readily understood by the average juror or judge.  Expert evidence serves to simplifly these matters which so commonly crop up in our complex and scientifically oriented society …

…due to the pervasive use of experts, counsel undertaking a case of any complexity must consider, early in the life of the case, whether there are areas in which an expert can be of assistance.” (Ref. 1. Italics mine)

And Judge Sopinka said this back in 1995 – 19 years ago!  Society is even more complex and scientific today, and more litigious.

“Expert witnesses play an important role in modern litigation.”  Said in 2004 – 10 years ago.  (Ref. 2)

The technical issues can make or break a case.  The sooner you retain an expert the better, even if only briefly – preferably as soon as when you are deciding whether or not to take a case. (Ref. 1, 3)

Your decision about taking a case should reflect an assessment of the technical issues involved.  Your assessment should reflect input from an expert in identifying the technical issues and estimating the cost to investigate these.

Assess whether or not there are, in fact, any technical issues, the number of technical issues, their nature and complexity, some feel for the forensic investigation needed, some feel for the cost to investigate, the file’s worth, etc.

Do this in spite of the considerable difficulty assessing the extent and cost of a forensic investigation.  Take a stab at it with the assistance of an expert and the resources that are out there (Ref. 4) – and do it early in the case like Judge Sopinka recommended.

Who better qualified to help you make that assessment than the expert who might do the forensic work for you?

All the while as you assess the need and consider retaining an expert remember the different roles of the lawyer and the expert (Ref. 5):

• The lawyer’s function is to advocate on behalf of the client’s position, to shape his or her client’s position into the legal stance that is likely to prevail in negotiation or court.
• The expert’s role is to thoroughly investigate the cause of a failure or accident,  describe and explain the technical issues, the investigation, and the evidence, and present reliable, objective opinions without regard to the outcome of the legal dispute.

For certain, whatever you do, determine first if you and the justice system will need input from an expert, and talk to an expert in deciding this – early in the case.

I was prompted to blog on this issue when I learned of a litigator who under-estimated the total cost of forensic investigation by 50% in one case – seemingly, not too bad, but read on, and by a factor of 300% in another – shocking regardless the circumstances.  And those percentages were just for the preliminary forensic work in both cases – that is, relating counsel’s estimated total costs to the expert’s invoiced preliminary costs!

The expert in both cases was retained several years after the lawyer took the cases.

Needless to say, the expert’s findings – technically favourable to the plaintiff in both cases, may not be used because they would need to be disclosed to opposing counsel.  Think it works like that.  And that would involve the expert again with additional cost.

In another case, definitely the wrong party is being sued, if only the technical issues are considered.  This is based on a very conclusive, visual site assessment by an engineering expert of a quite striking and unusual failure.  Seeing the highly probable cause of the problem – not the exact cause, mind you, and the party responsible, was too simple.

In the same case, there is definite damage to another structure on the same site but the party involved has not been named.  As near as I can gather, the owner of this structure is not even aware of the damage and his possible right to compensation.

Why these mistakes in these cases?

In the first two cases I suspect because an expert was retained by counsel several years after the cases were taken.  And counsel did the retaining with little or no appreciation of the investigations that would be required by the expert, and the cost of these.  And no expertise in estimating these technical costs to relate to the estimated worth of the file.

In the third case, I suspect that the plaintiff is unfamiliar with civil litigation and the need and the cost of an expert.  And his counsel doesn’t know how to use an expert to get the case going in the right direction and in the most cost effective way.

I’m certain the people involved in these three cases are capable people in their own right, but not in planning and estimating the costs of forensic investigation.  That’s what experts are for.

I could go on and cite other cases from my personal experience and from that of other experts.

But, to be fair, I can also cite cases of a bad choice of an engineering “expert” and terrible costs ensuing for the client because of inadequate and bloated engineering investigation.

In one case, managed by one engineering “expert”, $140,000 total fees were submitted and paid to one law firm, one land surveying firm, and three engineering firms.  A simple investigation and peer review for $1,200 by another expert quickly demonstrated that there wasn’t a problem caused by others and the client didn’t have a case.

For certain, that’s a blog for another day.

Please, Counsel, confer with and retain a well regarded expert early in the life of the case, for the sake of your good file management and your client’s best interests.

References

1. Sopinka, John, Judge, Supreme Court of Canada, The Use of Experts, Chap 1, The Expert: A Practitioner’s Guide, Volume 1 by Matthews, Kenneth M., Pink, Joel E., Tupper, Allison D., and Wells, Alvin E. Carswell 1995
2. Stockwood, David Q.C., Civil Litigation: A Practical Handbook, 5th edition, Thompson Carswell 2004
3. The role of a professional engineer in counsel’s decision to take a case, June 26, 2012 http://www.ericjorden.com/blog/2012/06/26/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case/
4. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts, November 20, 2013 http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/
5. Lewis, Gary L., editor, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003

Well written expert’s reports are generated and drafted in the expert’s head as he or she does other things – walking the dog, sitting in a meeting, driving here or there.  It’s a form of brain storming.

For certain, critical passages in a report – e.g., the opinion, are often developed in this way.  Then thought out and refined on “paper” – the word processor today.

At times any scrap of paper that’s handy will do to capture sudden insight into the data from a forensic investigation.  Then expressed and refined later on a word processor.  I’m sure you’ve all had this experience in your respective fields.

I go through this process all the time in writing my forensic reports.  It’s done best if it’s allowed to take a number of days, sometimes weeks.  I’m nervous and suspicious of quickly written and issued expert`s reports.

The wordsmiths amongst you will appreciate this approach.  You know you get better reports in your work when you are able to allow this process to take place.

I thought of this process in the last couple of days as I was finishing a forensic engineering report.  The report was on the reviewing of pieces of information from different documents, visual assessments on site, and interviews of others.  It was a grind for a time trying to pull the data together, to find reason and meaning in the lot.

Then the dots connected in my head between different bits of data and the cause of the failure jumped out at me.  I quickly got it down on “paper”, thought it through some more, refined the additional thoughts that were generated – and then stood back and felt good that it had finally come together.  I thought afterwards how I was thinking on “paper”.  (Ref. 1).

This process also characterizes my blogging which, a little aside, has also improved my forensic report writing.  The need to be exact is common to both.  My thinking develops in the same way both in my head and on the blog template – the “paper”.

What’s great about technology today is every revision, all the editing, all the jumping around on “paper” is recorded in the WordPress program I use for blogging.  I can revisit a past revision made days earlier and way down the list of revisions and tweak some more and put back in my blog.

The “tracking changes” feature possible in a Word document does the same thing.  It allows you to capture all your expressed thinking on “paper” allowing you to go back, resurrect a revision, refine and tweak it some more and get it right.

This thinking on “paper” is quite satisfying.  I know it’s resulting in better forensic reports for all concerned and likely, in some way, more thorough forensic investigations.  You can’t prepare a well written report and formulate a reliable opinion unless you’ve carried out a thorough forensic engineering investigation.

References

1. Howard, Ph.D., V. A. and Barton, M.A. Philosophy of Education Research Centre, Harvard University, Thinking on Paper, 1986, Morrow and Company, New York

Canadian and American engineers are “…known for going on site and getting their hands dirty and mud on their boots”.  And this is a good thing in forensic engineering, and engineers should go there as soon as possible and as often as need be.

I know this to be true. I don’t feel comfortable until I get out on site.

I heard this expressed by one of my professors at a university in the U.K. when I was overseas doing graduate work years ago. (Ref. 1)

It felt good hearing this at the time, and I’ve tried to live up to that view of us.  It’s fairly easy for me because the field is a place I like to go.

I’ve thought for a while to share this with you.  But I didn’t quite know how to explain what it meant.  Still not quite sure.  For certain, it means much more than the initial site visit and visual assessment in a forensic engineering investigation (Ref 2).  It’s a cultural thing.  It’s a feeling, a good feeling; we just want to get out on site and collect data, build things – with our hands, fix things, solve problems, do stuff.  If we get dirty, it’s okay, it washes off, and besides, we’re doing things.

It’s important that counsel establish that their expert got out on site.

Our interest in being on site fits in with guidelines in the forensic engineering literature.  These recommend, for example, that the investigator be present and witness field and laboratory tests.  This carries a lot of weight in the justice system, the investigator, the expert, doing and seeing things done.

You can’t go to a site after a building or civil engineering structure has been erected and examine reinforcing steel buried in concrete, structural steel hidden behind gyproc walls, and foundations buried in the ground.  There are regulations in some municipalities today that require the engineer to be there when it was being done and sign off on this.

Our interest also resonates with the fact that about 80% to 85% of what we learn is acquired visually.  Collecting data visually is the way we get most of our information.  You can’t beat picking up a concrete impression on site, walking and poking around, ‘kicking a few tires’.  It’s difficult to talk about something without seeing it.

We like working with people to get a job done, but when we examine a site, investigating and collecting data, we like to do this privately and in a relaxed manner without the distractions of the presence of another person.

Counsel would do well to establish if their expert did this: Got out on site a lot.  He should also cross-examine and establish if opposing counsel’s expert did this as well.

Credibility goes way up if an expert has gone into the field and got “his hands dirty and mud on his boots”.

References

1. Professor John Billam, Department of Engineering, University of Birmingham, U.K.
2. “Technical” visual site assessments: Valueable, low cost forensic engineering method.  Posted September 4, 2012.  http://www.ericjorden.com/blog/2012/09/04/technical-visual-site-assessments-valuable-low-cost-forensic-engineering-method/

(Note: Please contact me with other examples of mistakes made by forensic engineers – in addition to the following, and I will publish them in an update)

Following is an update of a previous blog on mistakes forensic engineers make in the practice of forensic engineering in Atlantic Canada.  They have been taken in part from a publication by Babitsky and Mangraviti that resonated with me as relevant to Atlantic Canada (Ref. 1), partly from my experience in forensic engineering, and partly from suggestions by colleagues.

Mistakes numbers 4, 5, 8, 13, and 18 have been added to the list.

Counsel can assist the forensic engineer avoid many of these mistakes.  Asking the forensic engineer about any of these issues is one way of assisting.

Most of the mistakes occur in the investigative and report preparation stages of a forensic engineering investigation.  Mistakes occur in other stages of an investigation but these are not reported here.

Taking case

Mistake #1: Preparing different CVs for different clients.

This might happen inadvertently when a professional engineer updates his CV for each new case.

Lesson: More than one CV may imply or show that the engineer’s CV changed depending on the type of case being considered.

Solution: A professional engineer should have one CV

Mistake #2: Accepting rush cases that do not permit the engineer to follow the steps in the forensic engineering investigative process (Ref. 2).

Counsel sometimes call professional engineers late in the process of civil litigation with last-minute assignments.  These assignments require a rushed investigation, review, analysis, and forming of an opinion.

Lesson: Rushing an investigation can produce an opinion that is vulnerable to rebuttal and cross-examination.  Forensic engineers need to be able to recognize a rush assignment and decline when the time-frame is too tight to do their work properly.

Solution: Counsel should not offer and professional engineers should not accept rush or last-minute assignments.

Mistake #3: Accepting low-budget cases.  Forensic engineers sometimes accept low-budget cases.

Lesson: In low-budget cases, it is unlikely that forensic engineers will be able to do adequate investigation and analysis due to budgetary constraints.  There is never an adequate excuse – including a low budget – for doing substandard or incomplete forensic investigative work.

Solution: Forensic engineers should not accept low-budget cases.  The forensic engineer should determine at the outset if an adequate budget has been set to perform investigative work properly.

Mistake #4: Taking a case for which the forensic engineer is not qualified.

Experts sometimes mistakenly step outside their sandbox and take a case for which they are not qualified.

Lesson: The almost certain inadequacy of your forensic investigation will be found out.  This will reflect on your reputation and credibility.

Solution: Do not accept work for which you are not qualified.

Mistake #5: Recommending an expert to counsel when we do not know well that expert’s qualifications.

We sometimes refer counsel to other experts whose qualifications for the investigation we do not know well.  And subsequently, that expert does not carry out an adequate investigation.

Lesson: The inadequate work of the recommended expert reflects poorly on the person who recommended him/her.

Solution: Do not recommend anyone whose work you do not know well.

Investigation

Mistake #6: Failing to document.  Forensic engineers fail to adequately document their investigation and findings.

Lesson:   The judge, jury, opposing counsel, and other forensic engineers may take a long, hard look at the manner in which a forensic engineer documents his investigative work.  If the engineer is careless, less weight will be given to his findings and opinion.  Forensic engineers run the risk of having their investigative tasks, reports, opinions, and testimony discounted or even excluded.

Solution: Forensic engineers should meticulously document their investigative work.

Mistake #7: Failing to establish and follow a standard investigative protocol.

Failing to follow one’s own standard investigative protocol due to time or financial constraints can be a serious mistake.

Lesson: When forensic engineers have a protocol or procedure and do not follow it they should expect that their findings, conclusions, and opinions will be questioned, and in some cases undermined.

Solution: Brief retaining counsel on the difficulty this presents and consider declining the assignment when the deadline or budget is insufficient.

Mistake #8: Getting seduced by the tyranny of the obvious (Ref. 3) 

The professional engineer does not carry out a thorough forensic engineering investigation because the cause is ‘obvious’.

Lesson: You learn from an expert for another party to the action that the obvious cause was incorrect.

Solution: Carry out a thorough forensic engineering investigation even if it’s only to confirm the obvious.

Mistake #9: Failing to review the the complete set of records.  

Forensic engineers are sometimes provided an incomplete set of records or portions of records to review, and agree to review this less than full record.

Lesson: In agreeing to review less than the full record, the forensic engineer may put themselves in a very difficult position.  They should expect to be asked why they did not review the entire record, if missing portions may be significant, particularly if they requested to see the entire set of records.  They may be asked to review the omitted records while testifying.

Solution: Forensic engineers should not accept portions of records or an incomplete set of records to review without the full understanding of retaining counsel of the potential consequences of this.

Mistake #10: Not asking for all the records.

Forensic engineers sometimes do not ask for all of the records in the case they are working on.

Lesson: The forensic engineer shows a lack of due diligence when he does not ask for a complete set of records from retaining counsel.  In addition, the engineer opens himself up to unnecessary questioning by opposing counsel.

Solution:  The forensic engineer should ask for all documents.

Mistake #11: Not corroborating facts provided by counsel.

Forensic engineers take facts provided by retaining counsel without checking them.

Lesson: Forensic engineers who do not corroborate the facts are vulnerable to cross-examination by opposing council.

Solution: Where feasible, corroborate the facts in the case.  This is best done by a comparison to the records, documents, statements, discovery testimony, and investigative findings.

Writing reports

Mistake #12: Writing reports that are based on incomplete investigations and insufficient data.

Forensic engineers sometimes write reports, for example, a preliminary report, that they do not anticipate will become part of the litigation process.  They also are sometimes asked to take on forensic assignments only to learn later that insufficient data are available to render a report to a reasonable degree of engineering certainty.

Lesson: The failure to do a complete and adequate investigation and testing will always look worse when the engineer is forced to testify and support his (preliminary) report.

Solution: Forensic engineers writing reports should always anticipate that they may have to defend their reports at discovery or trial.  The report should be of a quality that is easily defended (Ref. 4).

Do not write a report and express an opinion until you have sufficient facts to do so.  It might be necessary after studying the available evidence to advise counsel that he is unable to render an opinion to a reasonable degree of engineering certainty.

Mistake #13: Writing vague, equivocal and uncertain reports.

Experts sometimes write vague, uncertain reports that are open to different interpretations because of insufficient data or the expert’s writing style.

Lesson: Your report and opinion may be rejected by the court.  This is happening often enough.

Solution: Carry out a thorough forensic investigation.  Use precise, certain language and state your findings and opinion clearly and directly in simple, declarative sentences. (Ref. 4)

Mistake #14: Writing a report without being asked by counsel.  

Professional engineers may do this because it is a natural step in an investigation.  However, counsel is an advocate on behalf of the client.  If the investigative findings are not favourable counsel may not want a report published.

A report is also an expense, even if the findings are favourable, and may be seen as a means of reducing costs.

Lesson: Forensic engineering reports are generally discoverable.  They are also expensive and must be requested.

Solution: Do not write a report until retaining counsel requests one.  But, encourage a report because it is usually the best way to explain fully and properly to counsel and to the judge and/or jury the technical issues, the forensic investigation and the findings.  Judges are wordsmiths and usually prefer a well written report.

Mistake #15: Not writing a report according to civil procedure rules like Rule 55 in Nova Scotia.  Rule 55 is very explicit on what to cover in a report.  It outlines what the justice system needs to resolve the technical issues in a dispute.

Lesson: Not writing a report according to the rules may undermine the report and reduce it’s weight.

Solution: Write your report according to the rules.

Mistake #16: Sharing draft reports with counsel.

Forensic engineers share their draft reports with retaining counsel and then re-work the reports.

Lesson: Sharing draft reports invites close questioning from opposing counsel about the influence of retaining counsel on the report writing process.

Solution: Do not share draft reports with retaining counsel.

Mistake #17: Not ensuring counsel understands the investigation and the findings thoroughly – the investigative tasks, the purpose of each task, the data from each task, the analysis, the findings, and the cause of the problem.

Lesson: Counsel may not present the technical evidence correctly and as a result argue ineffectively on behalf of his client.  This could reflect unfairly on the forensic engineer.

Solution: Recommend a meeting with counsel and report on the investigation in detail.  Make certain counsel clearly understands.

Mistake #18: Appearing to advocate on behalf of the client. 

This may inadvertently occur when the technical findings of the investigation support the client’s case.  The forensic engineer may appear to be advocating in making the technical truth known to the justice system.

Lesson: Your credibility as an expert is compromised if you are perceived to be advocating for the client.  Credibility is like a slippery rock: Hard to get back (on)once you lose it (slip off).

Solution: State the technical data quietly and clearly without any hint of enthusiasm for the truth you have found.  Do not use emphasis when expressing findings or conclusions.

References

1. Babitsky, Steven and Mangraviti, Jr., James L., The Greatest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc., Falmouth, MA, 2008 http://store.seak.com/the-biggest-mistakes-expert-witnesses-make-and-how-to-avoid-them/
2. Steps in the forensic engineering investigative process, posted October 26, 2012 http://www.ericjorden.com/blog/2012/10/26/steps-in-the-forensic-engineering-investigative-process/
3. Getting seduced by the tyranny of the obvious, posted December 9, 2013 http://www.ericjorden.com/blog/2013/12/09/getting-seduced-by-the-tyranny-of-the-obvious/
4. Babitsky, Steven and Mangraviti, Jr., James L., Writing and Defending Your Expert Report, SEAK, Inc., Falmouth, MA, 2002
5. Stockwood, Q.C., Civil Litigation, 5th, Thomson Carswell Ltd, 2004

Following is a list of blogs posted on this site in the past that are useful to civil litigation lawyers and their clients.  The items are classified under these headings:

• Forensic engineering and civil litigation,
• The role of professional engineers in civil litigation, and,
• Managing the cost of civil litigation.

The blogs – neatly bundled in this one posting, will enable counsel and clients to quickly learn how engineering experts address the technical issues in a case during the civil litigation process.

You can click on the addresses below and instantly go to the item you want to read.  When you’re finished reading, click on the back arrow and return to this blog.

Forensic engineering and civil litigation

1. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell
2. Steps in the civil litigation process.  Posted August 28, 2012 http://www.ericjorden.com/blog/2012/08/28/steps-in-the-civil-litigation-process/
3. What is forensic engineering?  Posted November 20, 2012 http://www.ericjorden.com/blog/2012/11/20/what-is-forensic-engineering/
4. Steps in the forensic engineering investigative process.  Posted July 15, 2013 http://www.ericjorden.com/blog/2013/07/15/steps-in-the-forensic-engineering-investigative-process-with-an-appendix-on-costs/
5. “Technical” visual site assessments: Valuable, low cost, forensic engineering method.  Posted September 4, 2012.  http://www.ericjorden.com/blog/2012/09/04/technical-visual-site-assessments-valuable-low-cost-forensic-engineering-method/
6. Writing forensic engineering reports.  Posted November 6, 2012 http://www.ericjorden.com/blog/2012/11/06/writing-forensic-engineering-reports/
7. New civil procedure rules will result in the writing of better expert reports.  Posted May 20, 2013 http://www.ericjorden.com/blog/2013/05/20/new-civil-procedure-rules-will-result-in-the-writing-of-better-expert-reports/
8. What do you think?  How do you express the degree of certainty with which the expert holds the opinion?  Posted June 8, 2013  http://www.ericjorden.com/blog/2013/06/08/what-do-you-think-how-do-you-express-the-degree-of-certainty-with-which-the-expert-holds-the-opinion/

The role of professional engineers in civil litigation

1. What comes first in civil litigation, the chicken or the egg? Posted October 21, 2013 http://www.ericjorden.com/blog/2013/10/21/what-comes-first-in-civil-litigation-the-chicken-or-the-egg/
2. The role of a professional engineer in counsel’s decision to Take a Case.  Posted June 26, 2012 http://www.ericjorden.com/blog/2012/06/26/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case/
3. The role of a professional engineer assisting counsel prepare a Notice of Claim.  Posted July 26, 2012  http://www.ericjorden.com/blog/2012/07/26/the-role-of-a-professional-engineer-assisting-counsel-prepare-a-notice-of-claim/
4. The role of a professional engineer assisting counsel prepare a Statement of Claim.  Posted September 11, 2012 http://www.ericjorden.com/blog/2012/09/11/the-role-of-a-professional-engineer-assisting-counsel-prepare-a-statement-of-claim/
5. The role of a professional engineer assisting counsel prepare a Statement of Defence.  Posted September 26, 2012 http://www.ericjorden.com/blog/2012/09/26/the-role-of-a-professional-engineer-assisting-counsel-prepare-a-statement-of-defence/
6. The role of the professional engineer assisting counsel prepare an Affidavit of Documents.  Posted October 4, 2012  http://www.ericjorden.com/blog/2012/10/04/the-role-of-a-professional-engineer-assisting-counsel-prepare-an-affidavit-of-documents-6th-posting-in-a-series/
7. The role of a professional engineer assisting counsel during Discovery.  Posted October 16, 2012  http://www.ericjorden.com/blog/2012/10/16/the-role-of-a-professional-engineer-assisting-counsel-during-discovery/
8. The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR).  Posted November 16, 2012 http://www.ericjorden.com/blog/2012/11/16/the-role-of-a-professional-engineer-assisting-counsel-during-alternate-dispute-resolution-adr/
9. The role of a professional engineer assisting counsel prepare for a Settlement Conference.  Posted November 29, 2012 http://www.ericjorden.com/blog/2012/11/29/the-role-of-a-professional-engineer-assisting-counsel-prepare-for-a-settlement-conference/
10. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference.  Posted December 12, 2012 http://www.ericjorden.com/blog/2012/12/12/the-role-of-a-professional-engineer-assisting-counsel-prepare-for-a-trial-date-assignment-conference/
11. The role of a professional engineer assisting counsel prepare for Trial.  Posted December 19, 2012 http://www.ericjorden.com/blog/2012/12/19/the-role-of-a-professional-engineer-assisting-counsel-prepare-for-trial/

Managing the cost of litigation

1. How to manage the cost of civil litigation.  Posted October 4, 2013 http://www.ericjorden.com/blog/2013/10/04/how-to-manage-the-cost-of-civil-litigation/
2. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2012 http://www.ericjorden.com/blog/2013/07/23/difficulty-estimating-the-cost-of-forensic-engineering-investigation/
3. Why the difficulty estimating the cost of forensic engineering investigation?  Posted September 1, 2012 http://www.ericjorden.com/blog/2013/09/01/why-the-difficulty-estimating-the-cost-of-forensic-engineering-investigation/
4. Should experts do pro bono work?  Posted November 13, 2013 http://www.ericjorden.com/blog/2013/11/13/should-experts-do-pro-bono-work/
5. Do forensic engineers jeopardize the appearance of their objectivity? Posted June 28, 2013  http://www.ericjorden.com/blog/2013/06/28/do-forensic-engineers-jeopardize-the-appearance-of-their-objectivity/