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

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

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

I think blog #5 on controlling review costs is quite a good read.  It explains the different ways you can retain an expert and how each can be peer reviewed.

If you’ve got time to look at the blogs, you might start with #7 the first one I posted in 2013.

The Bundle

1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020  I make the case for a peer review of a rebuttal report because most are biased.  I learned this after surveying the opinion of seven experts in the Maritimes. 
2. Ridding peer review of potential bias.  Posted December 30, 2019  A good read on six different ways of getting rid of bias in a peer review, in decreasing order of preference. 
3. Eureka! Peer review is good case management.  Posted November 16, 2018  A pithy, short blog on a Eureka! moment I had that emphasized the value of peer review at any stage of the civil litigation or insurance claim resolution process.
4. Peer review pays off – 17 years later.  Posted May 5, 2017  A long time to wait and not your normal payback period – more like a few months.  This is a case history that explains how a client was spared the lost of many 10s of 1,000s of dollars.
5. Peer review costs can be controlled.  Posted January 22, 2016  The answer is in how you retain an expert.  You have a choice of several different ways.  There’s a quote at the end of this blog that really makes you think.
6. Peer reviewing an expert’s report ensures the justice system gets what it needs.  Posted January 15, 2016  I emphasize the need for peer review again and note that it is provided for now in the remediation of contaminated sites – environmental engineering.  I reviewed 16 references in drafting this blog.
7. Peer review in forensic engineering and civil litigation.  Posted November 26, 2013  I explain the need for peer review in forensic work as perceived by a consulting professional engineer.  It was prompted after I read four poorly written “expert” reports.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada. ejorden@eastlink.ca)   

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

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

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

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

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

***

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

***

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

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

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

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

***

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

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

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

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

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

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

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

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

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

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

***

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

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

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

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

References

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

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

“Remember the three R’s:

• Reliability, 
• Reasonableness and
• Repeatability.

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

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

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

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

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

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

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

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

References

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

OVERVIEW

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

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

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

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

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

The REASONS

REASON 1

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

Comment: For example, the surprising value of one of the newer investigative methods like a low flying drone fitted with a GoPro camera taking video at the scene of a failure or accident in the built environment.

Older methods like terrain analysis – identifying features on the ground from the air and how they relate to your problem, but doing this much more reliably from a few 100 feet high rather than several 1,000 like in the past.  And simple methods like simple, high school math.

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

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

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

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

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

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

For example, parties in a litigious matter must learn about the technical subject to which the evidence relates in order to identify the relevant technical issues.  He or she has an important duty in the presentation of technical evidence to ensure it’s properly understood by the court or tribunal. (Ref. 1)

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

It’s difficult for parties to a dispute or loss to carry out their obligations, and also monitor costs, without some understanding of how experts work.

REASON 2

I also want to help readers understand why a forensic engineering investigation can be expensive.

Comment: The expense has everything to do with carrying out a reliable investigation and rendering a well reasoned opinion, as expected of the expert.  At the very least, following routine investigative procedures in an effort to ensure that no stone is left un-turned. (Ref. 3)

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

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

REASON 3

To help parties to a dispute understand the importance of retaining an expert early in all matters, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential issue are being assessed. (Refs 7, 8)

Comment: At present, experts are too often retained months or years after a case is taken and after the cost of the forensic investigation has been estimated by other than the expert.  This is contrary to the advice of some of the most senior members of the legal profession. (Ref. 9)

For example, I was retained by counsel 11 years after a personal injury.  I visually examined the site and reported on what could have been done to prevent the accident.  The case settled four (4) months later.  To give counsel credit, he instructed me on the relevant technical issues which reduced the cost in this case.  This type of instruction doesn’t happen very often.

REASON 4

To help the justice system understand what they should be getting for the money spent on forensic investigation: That is, reliable investigations, well thought out expert opinions, and well written reports.

Comment: Rules governing experts have placed greater emphasis on the investigation and the expert’s report, to encourage the settlement of cases without going to discovery and trial.

There are excellent guidelines on forensic investigation and also on writing an expert’s report.  And excellent books, in general, on writing well.  I’m not sure these are being consulted to the extent they should.  I recently saw poorly written reports by a forensic firm claiming to have 18 different experts on staff.

REASON 5

I want to understand the forensic engineering field better myself, to learn by writing the blogs and thinking-on-paper – particularly, on how addressing the technical issues supports the resolution of disputes.

Comment: Like all of us, I’m learning all the time.  Most recently about the value of low cost, initial hypotheses on the cause of problems based on very limited data.  This task could save counsel money – as long as it’s remembered they are initial hypotheses.

For example, I hypothesized with considerable confidence on the cause of a catastrophic bridge failure during construction (Edmonton) – based on study of photographs in a newspaper.  In another, the cause of the sloping, sagging floors in a multi-story building (Halifax) – based on a visual examination of the floors and knowing how these types of buildings are constructed.

Cases are also being settled today based on simple verbal reports after the technical issues are addressed.  In some cases not even a verbal report because counsel is on site and sees the results of the expert’s investigation unfold before his eyes – this happened during a slip and fall accident that I investigated.  I don’t think counsel could believe what he was seeing.

REASON 6

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

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

I researched and posted 10 blogs on the role of a professional engineer in the civil litigation process for the benefit of counsel and their clients. (Ref. 8) I learned a lot during this research.  I was assisted by senior counsel in preparing drafts of two of these blogs.

It’s also been an eye-opener to learn of the dichotomy between the party’s right to justice and the expense of getting it.  Associated is the conflicting interests of the different parties to the process.

For example, the court, while encouraging counsel to expedite cases and control costs, wants good evidence and a reliable opinion – which takes time and money.  The expert needs to do thorough investigative work to get this evidence.  He expects to get paid according to his schedule of fees, his level of expertise and the responsibility he bears.  If the party has retained the expert on a fee basis, he doesn’t want to spend any more than necessary.  If counsel has taken the case on a contingency basis and retained the expert, he wants to protect the worth of the file to his firm.  Quite a mix of interests.

REASON 7

Because of a sense of obligation to my readers who have seen the blog for seven years now and perhaps have come to expect it to fill a void that was there.

Comment: Feed back suggests you do get something from my descriptions of the nature and methods of forensic engineering, and my comments on related matters.

A senior lawyer in Atlantic Canada said, “I love that stuff..!!”.  Another senior legal chap on the east coast commented, “…like reading them.”  And an insurance claim consultant said, “I read every one”.  It’s hard to beat testimonials like that.

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

A chap who blogs on business ethics, Dr. Chris MacDonald, Toronto, and has an international reputation in his field – Chris is on a list of 100 influential business people that includes Barack Obama – saw fit to advise his twitter followers of my blog.

A monthly periodical on engineering construction – with an international distribution of 10,000, sought permission to publish one of my blogs.  The issue had a forensic engineering theme.  They came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In seven years, only about 10 readers asked to be removed from my distribution list.  This was because they were retired or the subject did not relate to their field of practice.

Overall, quite a good reception suggesting there was a void, and I’m filling it and making a contribution to the dispute resolution and insurance claim settlement processes.

REASON 8

“It’s my soap box”, one colleague said of why I blog.

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

REASON 9

For that satisfied feeling that comes from creating something – a piece of literature that did not exist before

Comment: A few months after I started blogging in June, 2012, I noticed a feeling of satisfaction after posting an item, a mild elation.  It was subtle but there.  On reflection, I realized I felt good because I had created something – a piece of literature that didn’t exist until I put pen to paper.  So, I blog for that satisfied, creative feeling too.  You all know how elusive that feeling is in our busy work/social, balanced-challenged lives.

On further reflection, I realized the feeling was also about finally publishing information on a topic or technical issue useful to my readers – finally letting it go.  I like my blogs to be as clear and well written as possible – in a sense, like well written, mini expert reports.

SUMMARY

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

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

REFERENCES

1. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014
2. Peer review costs can be controlled.  Posted January 22, 2016
3. Steps in the forensic engineering investigative process with an appendix on cost.  Posted July 15, 2013
4. What do forensic engineers investigate in Atlantic Canada.  Posted October 9, 2014
5. Forensic engineering practice in Eastern Canada.  Posted May 7, 2015
6. How many ways can a building fail and possibly result in civil litigation or an insurance claim?  Posted July 10, 2014
7. The role of a professional engineer in counsel’s decision to take a case.  Posted June 26, 2012
8. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
9. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell
10. Principles governing the cost control of dispute resolution and claim settlement involving experts.  Posted July 30, 2019

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada August 15, 2019 ejorden@eastlink.ca)   

I can’t help thinking that low level, aerial photography from drones then simple terrain analysis of what is captured in the video will find the alleged killers in northern Manitoba.  Even if they’re dead, as I can hardly imagine them otherwise in terrain like that.

I’ve worked in that kind of terrain here and overseas and it’s unforgiving.  Load heat-sensing gear on the drones and it’s a no-brainer finding them if the photography is  flown properly.

Terrain analysis involves identifying features on the ground and considering how they relate to your interests.

Aerial photography using drones and terrain analysis is well developed in civil engineering.  I know the police forces have picked up on the technology and learned well and are using it to good advantage in Manitoba.

I’ve used drone video on several forensic investigations including two kilometre-long sites, one covered by forest.  You can pick out a tennis ball with a drone flying at tree top level in that terrain – a few 10s of feet up.  A white face or hand would show quite nicely against the green forest floor.  I can imagine a pattern of foot prints across muskeg would show nicely too.

You can fly a drone across a couple of kilometres of terrain in minutes, study the video, analyse the terrain, stop and start the video every few seconds, take frame grabs, take out a magnifying glass and look closer still, etc., etc.

I flew the forested area in a recent case with people on the ground and got reams of data and evidence – not unlike what is possible in Manitoba and likely what is being done right now.

In a hunt like this, you track back and forth on a grid over the area of interest taking aerial photography as you go.  You can cover hundreds of kilometres of terrain with drone-mounted video cameras in the few days the searchers have been there.

I can’t help but think, if the alleged killers are still there, dead or alive, they would be found.  I don’t think they are else they would have been found by now with the aerial surveillance.  It may be time to move on to another hot-tip search area..