How the standard of care is determined when a failure or accident occurs in the built environment

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(Note: I posted this blog on June 28, 2014 and updated it since, most recently on October 30, 2020.  The purpose was to help counsel, the judicial system, and insurance claims managers and consultants understand how the standard of care is determined.  To help you gain some appreciation of the technical issues in the stepped process that are understood by an expert but not so well by others.

Also, to draw attention to how the assessment can at times be easy and inexpensive and at other times quite difficult.  This is illustrated with two brief case histories.

The following is based on the literature in the References, particularly Refs 3, 4 and 7 and my engineering experience in eastern, western, and northern Canada, and overseas.  The literature emphasizes the process as it applies to professional people.  I have extended it to include other specialties.

I updated the blog October, 2017 to include a list of questions that should be answered when assessing the standard of care.  I’ve also noted the specific importance that is assigned to the practitioner’s application of judgement, diligence and the elements of care.  The questions have been taken from Chapter 3, The Standard of Care, in the Guidelines for Forensic Engineering Practice, 2012, Ref. 7 and from Refs 8 and 9.

I updated the blog again on October 30, 2020 to note that some areas where failures and accidents occur have not adopted the National Building Code of Canada.  The Code is a document relevant to assessing the standard of care for incidents in buildings as distinct from other civil engineering structures)

***

Often when a building or a civil engineering structure fails, or a component is defective in some way, the performance of the parties involved is called into question.  Did they exhibit the degree of care that a reasonable person should exercise?

Civil engineering structures can be anything built by man.  Also, anything in the natural environment that affects people, like floods and landslides.

Parties whose performance might be questioned

The parties involved could be anyone associated with:

  • The exact technical cause of the failure or accident – the failure mechanism
  • And/or the process cause that led to the failure or accident – the procedural cause of the failure or accident, the circumstances that led to the occurrence of the failure mechanism (Ref. 1)

For example, any of those parties in the process from the original owner of the building or civil engineering structure to the workers who maintained it.

And all those specialties and trades in between.  Like the architects, the design and construction engineers, construction and building trades’ workers, material and product manufacturers and suppliers, and product and equipment installers.

It’s also the case – questioning the performance of the parties involved – when an accident occurs causing property damage, personal injury, or death.

“Standard of care” questions

If that is the question – the performance of the people involved – there is often a need for an expert to do two things:

  1. Determine and describe the skill possessed by normally competent practitioners involved in the technical cause of the failure and/or the process leading to the failure, and,
  2. Develop an opinion – if requested by counsel – as to whether the defendant party conformed to that level of skill

These are “standard of care” questions.

1. The expert determines and describes the standard of care existing at the time the structure and/or its components were designed, built or maintained, or the accident occurred.  He or she determines what a reasonable person would do in similar circumstances.

2. Then the judicial system uses the description of the standard in assessing the actions of those associated with the structure or the accident scene.  The judicial system may consider an expert’s opinion on whether or not the parties involved deviated from the standard.

Experts are human

There are three problems with this approach of using an expert to determine the standard of care and whether or not the standard was breached:

  1. Being human, experts are susceptible to applying personal standards.  They risk raising the standard of care by relying on their personal experience and practice.
  2. Litigation is retrospective.  Usually an expert must determine what the standard of care was in the past, not what it is at present.  If he did not practice during the time period in question, he would have to determine the standard by interviewing others and reviewing documents.  Also, if there were a number of different procedures for getting something done at the time it would be necessary to determine the nature of each, and which one would have been seen as a standard.  Again by interviewing others and reviewing documents.  This is difficult and time consuming and involves a lot of e-mail, telephone, document, and leg work.
  3. There are unique services, and some quite ordinary, for which no standard exists.

Experts retained to determine the standard of care must solve these problems.

Steps in determining the standard of care

Although a protocol for answering the two “standard of care” questions above in every case does not exist, the following steps will at least assist the expert.

They will also assist counsel and the judicial system acquire some understanding of the comprehensive nature of the process.  Also the technical issues involved in determining the standard of care.

Such a determination can be quite easy and straightforward in some cases, and quite difficult in others.  This affects costs as might be expected.  This is illustrated by two case histories described below.

I developed the stepped process – by extending the one in Ref. 4 – to include workers in the various supply industries, the building trades, and maintenance, in addition to the professions.  I found in researching the standard of care that much of the material concerned the performance of people in the professions.  However, there are circumstances when the performance of people in other fields of endeavour is of interest.

Before the process begins, counsel will need to advise when the building, civil engineering structure, and/or component was built.  He may also want to ask the expert for an opinion on whether or not the performance of those involved conformed to the standard of care:

Steps in the process

  1. Establish the time period involved.
  2. If there is reason to believe the standard is locality-specific, determine the applicable geographic locality.
  3. Determine the circumstances that relate to the failure or accident.
  4. Determine the technical cause of the failure or accident – the failure mechanism.
  5. Determine the process in developing the structure or component involved in the failure or accident – the procedural cause.
  6. Identify the professions, industries, and/or trades involved in the process and if they are well defined and understood as such.
  7. Do these things by interviewing a number of representatives in the different fields of practice.  If there is variance, speak with more until you are satisfied you know the average. (Ref. 5)
  8. Review the contract, or any other documents that define the party’s scope of work and any limitations on their services.
  9. Perform a literature search to determine if the standard of care was documented in publications, manuals and guidelines, regulations, and/or codes.  This literature should be known to representatives and workers in the professions, industries, or trades associated with the failure or accident.
  10. If the failure or accident occurred in a building, determine if the Building Code of Canada was in force at the time of the incident.
  11. Interview a number of professional, industrial, product, and trade representatives to determine a consensus standard of care.  If there is variance, speak with more until you are satisfied you know the average.
  12. Compare the consensus standard, as modified by contract, circumstances, or other justifications, with the questioned performance during design, construction, and/or maintenance of the building, civil engineering structure, or component.

This stepped process is quite comprehensive.  If followed it will assist the expert come to a clear understanding of the standard of care for a particular set of circumstances and enable the expert to describe it – answer the first of the two “standard of care” questions above.

It will also enable the expert to formulate an opinion as to whether or not the actions of the parties associated with the failure or accident conformed to the standard of care at the time – the second question.

Questions that should be answered in a stepped process for determining the standard of care

In going through a stepped process like the above to determine the standard of care the expert should make certain he or she answers the following questions.  These are as published almost verbatim in Guidelines for Forensic Engineering Practice (Ref. 7).  In a sense this is basically a stepped process separate from my own taken from the Guidelines:

  • Does the expert have the degree of learning and skill ordinarily possessed by reputable professionals or workers, practicing or working in the same or similar locality, and under similar circumstances?
  • Did the expert use the care and skill ordinarily used in like cases by reputable members of his or her profession or work practicing or working in the same or similar locality under similar circumstances?
  • Did the expert use reasonable diligence?
  • Did the expert use his or her best judgement?
  • Did the expert do all that in an effort to accomplish the purpose for which he or she was retained?

To answer these questions, the following must also be determined:

  • Who are “reputable professionals or workers”?
  • What are “same or similar” localities and circumstances?
  • What is “skill”?
  • What is “care”?
  • What are “like cases”?
  • What learning and skill are “ordinarily possessed”?
  • What care and skill is “ordinarily used”?
  • What is “reasonable diligence”?
  • What is “judgement”?
  • What is the expert’s “best judgement”?
  • What was the purpose for which the expert was retained?

“The standard of care is an assessment of the quality of care exercised by a practitioner, with specific importance assigned to the expert’s application of judgement, diligence, and the following five elements of the ethic of care, all of which are pertinent in engineering.”: (Refs 7, 8 and 9)

  • Attentiveness: Caring about; noticing the need to care, or recognizing the need of others.
  • Responsibility: Taking care; having more than an obligation, but a responsibility arising in part from one’s position or knowledge.
  • Competency: Care giving; having the ability to carry out the caring act effectively and correctly.
  • Responsiveness: Care receiving; being receptive to care, being aware of the care receiver’s perceptions.
  • Integrity: Knowledge on the part of the caregiver of the situations, needs, and competencies of all the parties to the care interaction, including an assessment of needs in a social and political, as well as personal, context. (Refs 7, 8 and 9)

Workers in general, quite apart from those in the professions, must be assessed on their application of judgement, diligence and the five elements of the ethic of care.

The cost of the process

The cost of determining the standard of care can vary considerably.  It depends on:

  1. The time period
  2. The location of the failure or accident
  3. The specialty, trade or profession of the person whose performance is questioned
  4. The number of documents to research
  5. The number of persons to interview
  6. Whether or not there is a well-defined process guiding development of the building or civil engineering structure, and it’s components, or associated with the elements in an accident
  7. Identifying the relevant parties in a poorly-defined process and how they are connected
  8. The existence of relevant codes, industry standards, and guidelines

The following two cases illustrate how cost and difficulty can vary:

1. Large, complex structure but easy and inexpensive assessment of the standard of care:

I assessed the standard for the catastrophic failure of a soil-steel bridge – a very large, corrugated steel culvert – that permanently disabled a woman.

The assessment was easy and inexpensive because the design and construction process was well defined.  There were only two parties to interview: (1) The one design firm working in the area at the time and (2) The culvert manufacturer.

The assessment of the standard of care was easy even though it was a large, complex structure, the failure occurred about 10 years prior to my assessment, and the soil-steel bridge was designed and constructed about 35 years previously.

2. Small, simple component but difficult and expensive assessment:

Another assessment for a simple accident was difficult and expensive.  This was because the industry and the process associated with development of the small component of the structure involved – a floor – was poorly defined and made up of 11 parties, with many persons to interview.

The relationship between the parties, and who was responsible for what, was not well defined.  It was expensive even though a simple component was involved and the accident occurred quite recently.

References

  1. Nicastro, P.E. David E., ed., Failure Mechanisms in Building Construction, American Society of Civil Engineers (ASCE) 1997
  2. Black’s Law Dictionary, 4th pocket edition 2011
  3. Kardon, J. B. 2000, 2010 Chapter 7, Standard of Care in Forensic Structural Engineering Handbook, R. T. Ratay, Editor-in-Chief, McGraw-Hill, New York.
  4. Thompson, D. E. and Ashcraft, H. W. 2000, 2010 Chapter 9 Page 9.17 in Forensic Structural Engineering Handbook R. T.  Ratay, Editor-in-Chief, McGraw-Hill, New York.
  5. Association of Soil and Foundation Engineers (ASFE) 1985 Expert: A Guide to Forensic Engineering and Service as an Expert Witness
  6. Mangraviti, Jr., James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc., Falmouth, MA 2014
  7. Kardon, Joshua B., Editor, 2012 Chapter 3, The Standard of Care in American Society of Civil Engineers, Reston, Virginia
  8. Tronto, J. C. (1993), Moral Boundaries: A Political Argument for an Ethic of Care, Routeledge, New York.
  9. Kardon, J. B. (2005), The Concept of “Care” in Engineering.  American Society of Civil Engineers, Journal of Performance of Constructed Facilities, Vol. 19, No. 3, pp. 256-260.

Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, June 28, 2014. Updated October 30, 2020 ejorden@eastlink.ca  

“Maintenance”: The Achilles’ heel of the built environment, and sometimes the cause of failures and accidents

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It’s not very glamourous – and it does cost money, but if a structure is not maintained as designed and constructed it won’t perform as intended.  Poor maintenance can actually be the cause of a building or civil engineering structure failing, or an accident occurring.

Examples

For example, I investigated a slip and fall accident on a stair landing at a retail outlet several years ago.  Residual detergent from cleaning the landing was a factor in causing a man to slip and fall and injure himself.  The detergent reduced the skid resistance of the floor material covering the landing from adequate to inadequate.

Another example was the classic failure of a soil-steel bridge – a very large, corrugated steel culvert, carrying a road over a stream.  My forensic investigation found that the water corroded the hunches of the culvert causing it to collapse injuring a car driver.  Corrosion of the hunches – a critical part of a soil-steel bridge, is a classic fact of life for these types of bridges.  Better design, and regular inspection and maintenance would have prevented the failure.

To be fair, I’ve not seen reference to the need for proper maintenance on very many design and construction drawings over the years, if any.

Maintenance part of design and construction

Yet proper inspection and maintenance is part of the design and construction process.  I noted this in a blog a couple of years ago on the failure of the Elliot Lake parking garage (Ref. 1)

So, how’s an owner to know?  It seems, at the very least, that if you observe deterioration in your structure then you know you no longer have what was originally designed and built.  And no longer what users of the structure understand it to be – as serviceable and safe as originally intended.

Coming along every now and then and ‘restoring’ a structure doesn’t count because what you’re restoring is the effects of poor or no maintenance.  Regular maintenance is what counts if a structure is to reach its design life.  This is the length of time a structure is designed to be serviceable.  It is quite an important concept in engineering design.

Mysterious report on parking garage maintenance

I was reminded of the importance of proper maintenance when I read an item on the enquiry of the Elliot Lake parking garage failure in a recent MacLean’s magazine. (Ref. 2)  There was frequent reference to maintenance in the two page item.

I also see an item in today’s Chronicle Herald, Halifax, about the maintenance needs of the 4,300 bridges in Nova Scotia – and the fact the money may not be there for all the maintenance necessary (Ref. 3).  Or some of the money that is available might perhaps be better spent on other projects.  The item noted that maintenance must be done on some bridges just to get them in fair or good condition.  Does that mean some bridges in Nova Scotia are in poor condition?

The MacLean’s article was reporting on the mysterious appearance at the enquiry of a report from the Ontario Ministry of Housing, circa 1988, written by an expert advisory panel on the “Deterioration, repair, and maintenance of parking garages”.

The new-found report wasn’t the first to sound the alarm about “rotting parking garages”.  CMHC (the Canada Mortgage and Housing Cooperation) issued three research reports in the 1980s about the deterioration in parking garages.

The answer

Regular inspection and repair – maintenance when carried out on a regular basis, was the answer running through the reports.

This was also the answer to preventing the failure of the soil-steel bridge.  Simply walking through the culvert at low water, noting any corrosion, and fixing it.  I did this at several intact soil-steel bridges in eastern Canada – simply walked through them, during my investigation of the failure.

The need for cleaning a soapy residue from a stair landing at a retail outlet is not very glamourous maintenance work but simple to do.

References

  1. Cause of the roof collapse at Elliot Lake, posted July 10, 2012 http://www.ericjorden.com/blog/2012/07/10/cause-of-the-roof-collapse-at-elliot-lake/
  2. Elliot Lake: Warning signs, long forgotten, MacLean’s Magazine, June 9, 2014
  3. Chronicle Herald, page A5, June 12, 2014

The role of a professional engineer in counsel’s decision to take a case – Update

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Update and re-issue of the role of a professional engineer ….

I decided to update and re-issue this article after recently blogging on the changes taking place in civil litigation.  Also after blogging on the importance of well-written expert reports. (Ref. 1, 2, 3)  The article first appeared on June 26, 2012.

These changes are resulting in greatly increased emphasis on the expert’s report.  If well-written, the report will result in the technical evidence being presented and responded to quickly and clearly by all parties.  The dispute will be resolved sooner.

These changes will also encourage retaining an expert as early as possible.  Because, of course, you can`t have an expert report without a forensic investigation, and you can`t have an investigation until you have an expert.  The sooner an expert is consulted and an investigation carried out – if needed, the sooner the dispute can be resolved.

Some cases may be over before they begin.  If an expert is consulted when counsel is deciding on whether or not to take a case, the expert’s comments may show that the case is technically weak or too costly to investigate thoroughly.

To summarize, I’m updating this blog because of the following effects that changes in civil litigation are having:

  • Increased emphasis on the expert’s report
  • Earlier retention of an expert

The role of a professional engineer …

Civil litigation tentatively begins when counsel meets with a potential client.  The purpose is to gather information to help him or her assess the merits of the case and decide if he should take it.

A professional engineer could have a role in this meeting, or in consultation shortly afterwards.  This is particularly the case if the legal and technical issues are likely to be complex requiring extensive engineering investigation to support a reliable opinion.

I’ve seen cases that should never have gone forward.  In some cases because of a lack of technical merit.  In others because of the client’s limited financial resources to bear the cost of the forensic engineering investigation necessary to determine the cause of the failure or accident.  These would be costs learned about after a claim was filed – and only after a professional engineer was retained to investigate the technical issues.

During the meeting, counsel obtains information from:

  • The client’s description of the problem and the damages he believes he has incurred,
  • Documents provided by the client,
  • Knowledge of witnesses,
  • Answers to questions raised by the lawyer,
  • The lawyer’s past experience of similar matters, and,
  • Comments by an expert on the technical issues.

One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case.  An expert can make or break a case and if thought to be necessary should be chosen carefully and retained early (Ref. 4).  Even if only retained briefly to confirm counsel’s assessment of technical merit, in the event counsel decides not to take the case.

If a professional engineer is not included in the meeting, then counsel might confer with one later during his review of the facts prior to making a decision about the case.  The engineer would, of course, review the information from the meeting, particularly the documents, and identify the technical issues prior to advising the lawyer.

The engineer can also provide preliminary comment on the forensic engineering investigation needed to address the technical issues and to formulate an opinion on the cause giving rise to them.  The engineer would outline some of the tasks that would need to be carried out during an investigation and the time involved – factors that can have a significant impact on the cost of litigation.

If the technical issues are complex – and the engineer can certainly help determine that, the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs.  The client’s ability to bear these costs is important information in counsel’s decision on taking the case.  An engineer can have a role in assisting counsel make that decision.

A professional engineer’s tasks during counsel’s first meeting with the client

Following are 18 tasks that a professional engineer – or any expert for that matter, could carry out during or shortly after counsel’s first meeting with a potential client.  Completing some or all of these would assist counsel’s decision about taking the case:

  1. Attend and audit the meeting for technical issues, or meet with counsel shortly afterwards
  2. Review client’s descriptions of the problem and the reasons for claiming damages
  3. Read available documents
  4. Review witness’ statements as soon as taken by counsel
  5. Begin identification of potential technical issues
  6. Begin identification of technical documents counsel must seek
  7. Familiarize counsel on the typical stages and tasks in a forensic engineering investigation, the possibility of unexpected follow-up investigations, the fact that investigations can sometimes lead in unexpected directions, the time required, and the difficulty estimating costs (See a bundle of blogs, Ref. 5) 
  8. Outline a preliminary engineering investigation and the major tasks involved
  9. Speculate on follow-up investigations
  10. Identify specialists that may be required
  11. Speculate on the order of magnitude of forensic investigative costs
  12. Identify physical evidence, tangible exhibits and possible demonstrative evidence
  13. Brief counsel on parties that might be involved in the potential litigation and their relationship to the technical issues
  14. Provide information that would facilitate early settlement
  15. Note unfavourable evidence for the potential client’s claim
  16. Remind counsel that only one side of the story is known.  The opponent’s story and documents could give rise to a small shift in the technical facts and alter the complexion of the claim
  17. Tentatively assess the technical merits of the case with respect to the potential parties
  18. If counsel decides to take the case, and position letters are appropriate, ensure that demand letters, and responses, are based only on well-established technical facts and data as known at the time

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. Guidelines for writing an expert witness report. Posted May 17, 2014 http://www.ericjorden.com/blog/2014/05/17/how-to-write-an-expert-witness-report/
  3. The role of a professional engineer in counsel’s decision to take a case. Posted June 26, 2012
  4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
  5. 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/

 

Guidelines for writing an expert witness report

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“An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 1)  And, I might add, turn rebutting the report prior to discovery into a cakewalk.

Today, with the greatly increased emphasis on the expert’s report – see blog posted May 1, technical evidence is presented and responded to quickly and clearly by all parties unencumbered by the discovery process.

Today, you must retain an expert who has two basic skills, in addition to the motherhood requirements of appropriate education and experience:

  • Skilled investigating the cause of the engineering failure or accident
  • Skilled in presenting investigative findings in a well-written report

The chances that your expert will be cross-examined is getting close to almost negligible, and, if they are, it will be easier – if they have a well-written report.

“Guidelines” on writing reports have been around a long time.  There’s always a chapter on writing reports in the books on forensic engineering, science, and expert witnessing.  I’ve read a few of these books and, generally, I’m not impressed with the report writing sections.  Not even those published by our learned associations. (Ref. 2, 3)

They differ in how they guide, for one thing.  Many would not meet the requirements of civil procedure rules in eastern Canada, like Rule 55 in Nova Scotia.

And, almost without exception, there is no comment on the sorting, synthesizing, and analysing of the data from a forensic investigation, the drawing of well-supported conclusions, and the formation of an opinion.  Unquestionably, as important a task as collecting the data.  There are some but they are few. (Ref. 4, 5)

Your expert must be able to present the findings of their forensic investigation in a well-written report.  That’s not always being done.  Yet, it’s critical today.  There’s help.

Three experienced trial lawyers in the U.S. – James Mangraviti, and his co-authors, Steve Babitsky and Nadine Donovan, have addressed this problem in great depth.  Their quite massive 560 page, 11.25″ x 9.0″ x 1.25″ text goes into considerable detail on all aspects of expert report writing. (Ref. 1)

How to Write an Expert Witness Report was published this winter, 2014.  It includes many well developed check lists, typical well-written reports for common forensic investigations, and executive summaries.  One long summary for the entire book and one at the start of each of the 14 chapters.  I find the check lists and executive summaries particularly valuable.  Also the 20 pages of “Advice from the Trenches” – comments on drafting expert reports by different experts throughout the U.S.

You can see the book’s contents at www.seak.com  It is similar to another they published in 2002, Writing and Defending Your Expert Report, but much more comprehensive. (Ref. 6)

The recent text is based on the authors’ experiences as trial lawyers, review of discovery and trial transcripts, the response to their earlier book, and suggestions from specialists in many fields.

I’ve used their older text for years and the check lists and summaries there and now use the new one.  I actually recommended some time ago to readers of my blog to give a copy of the older text to their experts.  I now recommend giving the updated book.

Mangraviti et al’s text takes the guidelines on how to write an expert report – and a rebuttal report, for that matter, to a whole new level.  There is no excuse for anything less than a well-written report going to counsel and the justice system on the cause of a failure or accident.  In view of the increased emphasis on the expert’s report, it’s imperative that guidelines like these be followed if the truth of a matter is to come out.

References

  1. Mangraviti, James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc., Falmouth, MA 2014
  2. Lewis, Gary L. ed, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003
  3. ASCE, Guidelines for Failure Investigation, 1989
  4. Toulmin, Stephen E., The Uses of Argument, Cambridge University Press, 2003
  5. Noon, Randall, Introduction to Forensic Engineering, CRC Press, Inc., Boca Raton, Florida, 1992
  6. Babitsky, Steven, and Mangraviti, James J., Writing and Defending Your Expert Report, SEAK, Inc., Falmouth, MA 2002

 

 

How experts are retained in civil litigation is changing – and the changes are good for counsel and the justice system

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The way in which experts are used in civil litigation is changing, at least the main emphasis of their role in the civil litigation process.  And these changes are good for counsel and the justice system.

The role of experts in the civil litigation process has been identified in detail in previous postings. (Ref. 1)

Emphasis today

The emphasis today is on (1) the presentation of findings in oral and written reports after a forensic investigation is complete, rather than on testimony in discovery or at trial.  And I believe there will be increased emphasis on (2) oral reports – certainly for smaller cases, rather than on written reports.

How experts can be retained

In Canada and the U.S., experts can be retained in one of two basic ways:

  • Consulting expert
  • Testifying expert

Comments by some lawyers I have worked with suggest these two types of arrangement are understood in eastern Canada.

Based on my experience in this part of Canada, these two methods of retaining an expert can be broken down further:

  1. Consulting expert and technical advisor to counsel
  2. Investigating expert: – Oral report
  3. Investigating expert: – Written report
  4. Testifying expert; ADR, discovery, trial
  5. Consulting expert to the judge

The break down reflects and accommodates the changes taking place.

Why the changes in emphasis are good

These changes are good for counsel and the justice system, and the cost effective settling of disputes.  This is because:

  • Counsel will take cases with greater confidence in their client’s position
  • Counsel will be able to monitor costs more easily
  • Experts will be retained for their skill presenting their investigative findings in well written reports – not just for their skill investigating the cause of a failure or accident
  • A more cost effective level of forensic investigation will be carried out
  • The technical findings will go forward more readily, unencumbered by the direct and cross-examination process

What’s causing these changes?

These changes in how experts are used is being driven by:

  • Civil procedure rule changes such as Rule 55 in Nova Scotia
  • Recognition that the majority of cases involve claims that are small rather than large – fortunately, we don’t have catastrophic engineering failures and terrible accidents very often
  • Recognition that the thoroughness – and hence cost, of forensic investigations is not greatly different regardless the value of the claim.  Small claim or large, we must go through fairly standard investigative steps
  • The fact that the great majority of cases are settled out of court – I’ve seen reported as many as 95% to 97%, and this certain to go higher in light of the rule changes, and,

Comments on how experts can be retained

Following are a few comments on how experts are being retained today for the good of the justice system:

1. Consulting expert

Counsel might initially retain an expert for a general discussion of the case and the technical issues as initially perceived by each.

Such a discussion could be quite brief and based on counsel’s description of the incident.  Or of greater length depending on where counsel is at in the civil litigation process. (Ref. 1)

Lengthier discussion would be based on some investigation by an expert.  The investigative tasks would depend to some extent on the role assigned the expert. (Ref. 1)  At the very least, an expert would read a few documents and visit the site.

The very early emphasis in such discussions should be to provide counsel with technical information to help him or her assess whether or not to take the case. (Ref. 2)

Also, some emphasis on the expert’s early thought on the direction a forensic investigation might lead, with respect to the cause of a failure or accident.  Sometimes we have an idea early on – a hypothesis as to cause, that would be checked later during a forensic investigation.

It’s often possible in these discussions to outline the approximate nature of a forensic investigation of the problem.

Very approximate costs to investigate the cause of a failure or accident might be suggested based on the expert’s experience with other cases.  At the very least, advice could be given on whether it’s likely to be an expensive or an inexpensive investigation or somewhere in between.

If counsel takes the case, the expert could provide some guidance on preparing a statement of claim or defense. (Ref. 1)  This involvement is important.  I’ve seen cases where, based on the technical issues, the wrong party was named in one instance and responsible parties were not named in two others.  I was retained some time after these actions were started – years after in one case.

The next two ways of retaining an expert must be evaluated carefully, particularly, in going from an oral report to a written report.  “An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 3)  And, I might add, turn rebutting the report before discovery into a cakewalk.

An argument can be made, and serious consideration given, for peer review of a written report. (Ref. 4)  This is standard practice in some engineering and scientific fields.

2. Investigating expert: Oral report

Based on the results of the initial discussions, counsel may instruct a consulting expert to begin investigating the cause of the failure or accident.  To begin the forensic engineering investigative process. (Ref. 1)

The objective would be to gather some data to support an oral report of findings to counsel.

An oral report allows for additional discussion of the case.  It also gives counsel data on which to base a decision to carry out a complete forensic investigation.  And some data on which to base a decision to commission a written report.

There is emphasis at this stage on some data.  This is because the expert would report to counsel as soon as relevant and meaningful data had been collected.  He would not necessarily wait until the end of a complete forensic investigation.

The expert’s work at this point is very likely to be characterized by preliminary investigative work.  Also possibly by a factual reporting of data with little or no interpretative reporting.  This type of reporting is used often enough in some fields, e.g., geotechnical engineering.

Some of the necessary preliminary work might be identified in discussion during the Consulting Expert stage.  For certain, the expert would recognize when he had some useful data justifying interrupting the investigation and reporting to counsel.

But it’s also possible the investigation will have been completed before significant data became available.  Or this was considered the most expedient way – to complete the forensic investigation and gather all data before reporting.

Even if the investigation was completed, only an oral report would be given at this stage as required by counsel.

The oral report, in addition to facilitating additional discussion of the case, also allows counsel to assess if it’s in the client’s interest to incur the cost of completing the forensic investigation and preparing a written report.

3. Investigating expert: Written report

Counsel could retain the consultant to prepare a written report on the forensic investigation according to the requirements of civil procedure rules governing experts.  The report would describe the forensic investigation in detail, the data gathered, the analysis carried out, the conclusions and the reasoning leading to these, and the opinion on cause stated.

The forensic investigation would be completed before preparing a written report if this was not done for the oral report stage.

The report would likely be distributed to all parties to the action.  This would in turn generate a number of questions on the report by the different parties to be answered by the expert.  It could also result in a rebuttal report which might need to be responded to by the expert as well.

4. Testifying expert

In the unlikely event that the action goes to discovery and trial a consulting expert might be required to testify on his investigation and subsequently be cross-examined on his testimony and report.

In some areas of Canada and the U.S., a testifying expert is retained in addition to an investigating expert.  The testifying expert would present the investigating expert’s work and findings at discovery and trial.  Testifying is a skill some investigating experts have and some don`t, hence the need.  I can imagine this would be for larger cases.  Forensic engineering investigation in eastern Canada is characterized by many smaller cases.

5. Consulting expert to the judge

The judge might retain an expert independent of counsel.  This is done occasionally in eastern Canada.  I understand it`s quite prevalent in the U.K.  I believe this is likely to occur less frequently with fewer cases going to trial.  Also because of the change in emphasis in how experts are retained.  And the fact that particularly well-written expert reports will derive from the changes.

References

1. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts. 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/

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. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report,  SEAK Inc., Falmouth, Mass. 2014

4. Peer review in forensic engineering and civil litigation. Posted November 26, 2013 http://www.ericjorden.com/blog/2013/11/26/peer-review-in-forensic-engineering-and-civil-litigation/

Heavy rain (Ref. 1) and a good water-problem-classification system helps engineers understand and explain forensic engineering problems

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A reader in the U.K., Len Threadgold, (see profile below) commented on last week’s blog. (Ref. 1)  Len speaks with some authority when he notes that the problems with water can be grouped under the following three headings.  He also notes that separating problems into neat categories is useful but sometimes the categories work in association with each other – see examples below.

This classification is good: A way of understanding natural events and environmental processes.  In a sense, a way of measuring things.  Engineers like that.  It helps us solve problems and explain causes and technical issues to the justice system.  As such, it’s a forensic engineering method:

1. The problems that the presence of water causes

We don’t like flooding or working under water – so this problem concerns water level.

Examples would be your flooded basement, also the water pooling in your back garden that has drained from the land above – sorry to bring these examples up.  And the recent flooding that occurred in Truro, N.S., and in the U.K., and forecast for the Saint John River, New Brunswick.  Water pressure would also be a factor in a wet basement; see #3 below.

2. The problems that the flow of water causes

These problems are about erosion, the removal of soil as a result of water flow, the speed of the water.

For example, coastal erosion such as that occurring around the entire coast line of Prince Edward Island and also at Red Head, on the Bay of Fundy near Saint John, New Brunswick.  The flowing water on the coast is wave action and long shore currents.

I investigated one landslide at Red Head some time ago that destroyed a home at the top of a sea cliff.  I learned two weeks ago that erosion of the bottom of the cliff continues to remove the buttressing effect of the soil there.

Rain triggered the landslide at Red Head that I investigated – after erosion of the toe set the stage.  Rain did this by increasing the pressure in the ground water behind the cliff; see #3 below.

3. The problems that the pressure of water causes

These problems arise because water pressure affects soil strength.  You know this when your boots sink into the mud – clay in engineering – after a rain storm.

The problems are bigger than sinking, muddy boots though.

Water pressure – what we call pore water pressure in engineering – is often a factor in landslides as it was for the landslide at Red Head.  At times water pressure is the principal cause in changing an adequately stable slope to an unstable one.  Its effect is to reduce the frictional strength of the soil.

Water pressure was certain to have been a factor in the recent landslide in Washington State, U.S.  This landslide took more than a dozen lives with others still missing.  I saw early reports that there was a known risk of a landslide at this location.  The assessment leading to that conclusion is certain to have considered pore water pressure and its potential to change.

Len has investigated the potential for landslide problems in Hong Kong.  These would  be slopes that were susceptible to increases in pore water pressure.  Simple drains often fixed the problems but sometimes more in-depth water interception was necessary.

Water pressure is a factor in our wet basements.  And, believe or not, in many slip and fall accidents.  It’s the reason signs in a swimming pool caution us not to run on the pool deck.

In some slip and fall accidents, a person’s weight is momentarily applied to water on the floor surface.  The frictional or skid resistance of water is much lower than the material forming the floor surface – almost negligible by comparison.  So low in fact that the person slips and falls.

Len’s classification is a good one, an aid to those of us investigating problems with water and needing to explain the cause of a problem to the justice system.

Many of the forensic engineering problems I investigate – not just a few, and not just the obvious drainage and flooding problems – can be traced back to water and fall under one or more of the headings Len has identified.

Reference

1. Image credits and why forensic engineers like wet weather, the heavier the rain the better, posted April 9, 2014 http://www.ericjorden.com/blog/2014/04/09/image-credits-and-why-forensic-engineers-like-wet-weather-the-heavier-the-rain-the-better/

Len Threadgold’s Profile

Len is a civil engineer in the U.K. specializing in soil, rock, and ground engineering – geotechnical engineering.  We were colleagues when I practiced there.  Len’s firm, Geotechnics Ltd, provides consulting services to an international clientele including dealing with slope stability problems in Hong Kong and the U.K. – problems that would fall under #3 above.  The U.K. had their share of severe flooding problems this past year, problems with the mere presence of water; #1 above.  Len read a draft of this blog because it’s his classification system and some of the examples and comments are his.

 

 

 

 

Image credits, and why forensic engineers like wet weather, the heavier the rain the better

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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.

Please, Counsel, retain an expert “early in the life of the case”

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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

 

 

Thinking on “paper”, and well written, easily defended expert’s reports

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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

Words! Words! Words!

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…as exclaimed by counsel – a “wordsmith”, in referring to the practice of law.  We were on site where I was taking a briefing on a problem as experienced by the property owner.

To which I might have added in referring to the practice of engineering, “Numbers! Numbers! Numbers!

The exchange reminded me of a paper I read a few years ago entitled, “The Fundamental Differences Between Science and Law”.  It was written by Robert A. Bohrer, both a professor and a practitioner of law.

The paper appeared in the book, “Expert Witnessing: Explaining and Understanding Science” (Ref. 1).  It’s a very good read, one of the better texts on forensic work that I’ve seen.  You’re certain to find it interesting

The book was written for “…scientists, engineers, physicians, judges, litigators and those who work in contact with the courts”.  It was in response to the “…notorious communication problems between science and the courts” as recognized by both. The book contains papers from 14 noted authors from all walks of life in science, applied science, and law.

In his paper, Professor Bohrer attempts to describe the difficulty of incorporating science into legal decision making.  He does this by describing the three basic differences between the world of science and the world of law:

  • Science is digital, replicable/general, and objective/universal;
  • Law is analogical, unpredictable/particular, and normative/contingent.

I won’t attempt to précis the paper but “digital” resonates with me – like in “numbers”.   Engineers measure and quantify things with numbers and use numerical methods to analyse the cause of failures and accidents.

If you can measure it you can manage it. (Ref. 2)  And you can measure most things in some way or another.  Including cost control in civil litigation. (Ref. 3)

At its most basic an engineer might simply “take the measure” of something with an experienced eye – and a tape measure would be nowhere in sight.  But not often because we like to measure and test things.

The importance of measurement in science and engineering is echoed in a number of papers in the book.  One on epidemiology recognizes that, “The concepts of measurement and uncertainty, of error and of chance are fundamental to science”.

“Objective” in the differences above also jumps out at me, as required of experts by Nova Scotia civil procedure Rule 55.  The word does conjure up the idea of measuring and testing (Ref. 4) but also more abstract concepts best described by words and wordsmiths.  As such, it’s perhaps a tiny bridge over the communication problems between science and the courts.

References 

  1. Meyer, Carl, ed, Expert Witnessing: Explaining and Understanding Science, CRC Press LLC 1999
  2. Personal communication, Osmond, Jack, Affinity Contracting, Halifax
  3. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  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/
  4. Using SOAP notes in forensic engineering investigation.  Posted February 6, 2014