Mistakes forensic engineers make

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

Following are mistakes forensic engineers make in the practice of forensic engineering in Atlantic Canada.  They have been taken in part from a publication by Babitsky and Mangraviti that resonated with me as relevant to Atlantic Canada (Ref. 1) and partly from my experience in this area.

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

Most of the mistakes occur in the investigative and report preparation stages of a forensic investigation (Ref. 2).  Mistakes occur in other stages of an investigation but these are not reported here.

Taking case

Mistake #1: Preparing different CVs for different clients.

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

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

Solution: A professional engineer should have one CV

Mistake #2: Accepting rush cases that do not permit the engineer to follow his standard protocol.

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

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

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

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

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

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

Investigation

Mistake #4: Failing to document.  Forensic engineers fail to adequately document their investigation and findings.

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

Solution: Forensic engineers should meticulously document their investigative work.

Mistake #5: Failing to establish and follow protocol. Failing to follow one’s own standard investigative protocol due to time or financial constraints can be a serious mistake.

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

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

Mistake #6: Failing to review the the complete set of records.  Forensic engineers are sometimes provided an incomplete set of records or portions of records to review, and agree to review this less than full record.

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

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

Mistake #7: Not asking for all the records.  Forensic engineers sometimes do not ask for all of the records in the case they are working on.

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

Solution:  The forensic engineer should ask for all documents.

Mistake #8: Not corroborating facts provided by counsel.  Forensic engineers take facts provided by retaining counsel without checking them.

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

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

Writing reports

Mistake #9: Writing reports that are based on incomplete investigations and insufficient data.

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

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

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

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

Mistake #10: Writing a report without being asked by counsel.  Professional engineers may do this because it is a natural step in an investigation.  However, counsel is an advocate on behalf of the client.  If the investigative findings are not favourable counsel may not want one published.

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

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

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

Mistake #11: Not writing a report according to civil procedure rules like Rule 55 in Nova Scotia.  Rule 55 is very explicit on what to cover in a report.  It outlines what the justice system needs to resolve the technical issues in a dispute.

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

Solution: Write your report according to the rules.

Mistake #12: Sharing draft reports with counsel.  Forensic engineers share their draft reports with retaining counsel and then re-work the reports.

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

Solution: Do not share draft reports with retaining counsel.

Mistake #13: Not ensuring counsel understands the investigation and the findings thoroughly – the investigative tasks, the purpose of each task, the data from each task, the analysis, the findings, and the cause of the problem.

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

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

References

  1. Babitsky, Steven and Mangraviti, Jr., James L., The Greatest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc., Falmouth, MA, 2008 http://store.seak.com/the-biggest-mistakes-expert-witnesses-make-and-how-to-avoid-them/
  2. Jorden, M.Sc, P.Eng., Eric E., Steps in the forensic engineering investigative process, posted October 26, 2012
  3. Stockwood, Q.C., Civil Litigation, 5th, Thomson Carswell Ltd, 2004

What do you think? How do you express “the degree of certainty with which the expert holds the opinion”?

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How do you express “the degree of certainty with which the expert holds the opinion” as required by some civil procedure rules in Atlantic Canada? (Ref. 1)  For example, Rule 55 in Nova Scotia.  Do you know?

What did the draftees of rules like this have in mind?

How do you indicate if the degree of certainty is high or low, or somewhere in between?  How do you indicate that it’s just over 50% or close to 95% or somewhere in between?

Most definitions of “degree” in different dictionaries include words like “steps”, “stages”, “grade”, “classifications”.  These words suggest to me something that can be measured, or at least the attributes of different levels of classification identified.

What words should we use if we use words?  If we use numbers, how do we measure “degree” of certainty?

Would the court expect an engineer or some other applied scientific expert to quantify the degree of certainty?  Engineers like to measure things and to some extent, the courts, judges, juries, counsel, the public, know and expect this.  How do you measure the degree of certainty?

It’s been said, if you can measure something you can manage it. (Ref. 2)  How do you measure the degree of certainty and manage to achieve an acceptable certainty when forming your opinion?

If we could measure it we could manage it and ensure it’s over 50%, say, or close to 95%, and assure the court that our opinion is correct.

Could you quantify degree of certainty by reporting that you carried out a certain number of studies of equal validity and more than half of those lead to your opinion?  Would that be quantification?

Is it necessary to quantify the degree of certainty, as engineers would like to do?  Or is it sufficient in Atlantic Canada to express an opinion in an expert report as follows, as recommended by one organization in the U.S. (Ref. 3):

It is my opinion “based upon a reasonable degree of (engineering, medical, legal, accounting, jewelry appraisal, or other field) certainty that …”

When I first read this recommendation I e-mailed the first author, Steven Babitsky, a former personal injury trial attorney, and was told this means “more likely or more probable than not and is legally sufficient”. (Ref. 4)  Is he saying “beyond a reasonable doubt”?  If this gets us just over the line, 50+%, what about all the other classifications of certainty between 50+% and 95%?

Are these words as suggested in the U.S. sufficient for the requirements of civil procedure rules like Rule 55 in Nova Scotia?  Are they a sufficient statement of  “the degree of certainty” as required by our courts?

What do you think?  How do we express the degree of certainty to the court?

Do we use words to express the degree of certainty?  If so, what might those different words be to indicate different degrees, steps, stages, classifications, etc. of certainty?  Or do we measure and quantify, and, if so, how do we do this?

References

  1. Civil Procedure Rules, The courts of Nova Scotia, Contents of Expert’s Report, Rule 55.04 (2) (c)
  2. Osborne, Jack, Personal communication
  3. Babitsky, Steven, and Mangraviti, Jr., James J., Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, SEAK, Inc., Falmouth, Mass., 2002
  4. Babitsky, Steven, personal e-mail communication, August 19, 2009

 

Toronto Mayor Rob Ford and forensic engineering

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I was struck recently by the similarity between investigative journalism and a forensic engineer investigating the standard of practice existing when a structure was designed and constructed.  Also the similarity in the relief felt by both the journalists and the forensic engineer when the investigations are complete.

This occurred to me last Saturday when I read the report in the Globe and Mail about the Globe’s exhaustive, 18 month investigation of the Ford family. (Ref. 1)  I was also checking and reviewing guidelines on the weekend for researching the standard of care existing at the time a failed structure was originally designed and constructed.  This is a forensic engineering method of investigation.

The Globe reported how carefully and thoroughly they carried out their investigations – as they must do, and the efforts to which they went to corroborate their findings.  I can imagine the reporters being sent out “just one more time” to do one more interview, to follow up more lead, to get one more corroboration, and how relieved they were when the results of their investigation were finally published.  “Phew, let’s get onto something else now”

It’s not too much different when a forensic engineer must identify the standard of practice guiding the design and construction engineers for the structure that failed some years after it was built.  Or the structure where a person had an accident years later.

We interview architects, professional engineers and specifiers practicing in the area at the time to determine the standards they follow.  We also identify guidelines and codes existing then and the sources of these, and assess how representative the sources are of the industry.

If there is wide variance in what we find, we speak with more architects, professional engineers and specifiers, identify more guidelines and codes, and assess more sources until we feel satisfied we know what the average is. (Ref. 2, 3, and 4)

Sometimes it takes a lot of e-mails and telephone calls before we get satisfactory corroboration and know the average practice.  I had a Eureka..!! moment three days ago when a source of industry guidelines in Canada in a matter I was investigating was confirmed considerably as widely followed.  Until then I was getting a good understanding of practice in the industry at the time but the ‘average’ wasn’t clear.  Needless to say, I was relieved to see a light at the end of the tunnel like the journalists must have been relieved to see the results of their investigation finally published.

References

  1. The Globe and Mail, Saturday, May 25, 2013
  2. Association of Soil and Foundation Engineering (ASFE), Expert: A guide to forensic engineering and service as an expert witness, 1985
  3. Ratay, Robert T., Forensic structural engineering handbook, Chap. 7, Standard of Care, McGraw Hill, 2000
  4. American Society of Civil Engineers (ASCE), Lewis, Gary L, ed., Guidelines for forensic engineering practice, 2003

New civil procedure rules will result in the writing of better expert reports

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(This item is an update of a posting on much the same topic on August 21, 2012.  I elaborate some of the themes developed previously – notably the need for better report writing and the resources available to encourage this.  I also suggest that there is an argument for adding skillful report writing to the attributes of a qualified expert engineer)

The need for better expert report writing

Expert’s reports can be written better and there are resources available to encourage this.  The need for better reports will be driven in part by civil procedure rules such as Rule 55 in Nova Scotia, Canada.

Requirements of the rules

These rules require an objective presentation of opinion to the court and a statement of the certainty with which these opinions are held.  Also required is a clear explanation of the reasoning leading to the opinion.  And by inference, demonstration that a sufficiently thorough forensic investigation has been carried out to support an acceptable degree of certainty in the opinion.

Expert engineers in eastern Canada often report on the causes of failure in the built and natural environments – why things fall down or don’t work properly, and the causes of industrial and traffic accidents – why people get hurt.

Skillful report writing a key attribute of a qualified expert engineer

The need for well written reports will give counsel and the courts another attribute by which to evaluate the qualifications of an expert professional engineer.

In fact, an argument could be made for adding report writing to the five widely accepted key attributes of an expert engineer (Ref. 1):

  1. Education
  2. Training
  3. Experience
  4. Skill
  5. Knowledge
  6. Report writing

Some would say that a qualification in report writing is implicit in the basic five attributes but I don’t think so.  Engineers are basically educated and trained to examine, measure and test, and to analyse the data obtained – tasks that are quite quantitative in nature, not literary.

We report our analyses but the reports are often in the form of drawings or number-dense compositions.  Nor are we required often enough to report our reasoning – how we arrived at the numbers.  That’s not report writing to the standard required in an expert’s forensic report.

Rule 55 limits discovery of experts and, by implication, places great emphasis on the expert’s report and, by inference, the standard to which the report must be prepared.

Engineers report easily and well to other engineers but often enough don’t report well to counsel and the court.  For example, our leaps of faith from raw data to opinion are easily understood by other engineers but not so much by counsel and the court.

“The need has skyrocketed for experts with specialized knowledge who can skillfully explain their knowledge (italics mine) and provide relevant opinions.  Experts play a significant role in investigating failures and presenting their findings in court (almost always today in a report).  In addition, plaintiffs, defendants, counsel, judges, and juries are being asked more and more to believe and rely upon opinions of the experts, a phenomenon known as “expert credito”. (Ref. 1)

Rule 55 (Nova Scotia) will promote better report writing and forensic engineering investigation

When I first prepared a report two years ago according to the requirements of Rule 55 I was struck by the potential for this rule to promote better expert report writing,  And, by extension, better, more thorough forensic engineering investigation.  You can’t write a good report unless you’ve carried out a thorough investigation.

Reason for poorly written expert reports  

I have been troubled by the poor composition, unsupported statements, and leaps of faith in drawing conclusions – some that would scare a tightrope walker, that I’ve seen in some experts’ reports.

No surprise given that we engineers and scientists like to measure things, crunch numbers and analyse data.  We are not wordsmiths by nature.  But this doesn’t relieve us of the responsibility to communicate our findings in simple English and to do it effectively.

Not to fault the technical expert too much.  We are not educated and trained to communicate with lay people.  We practice for several decades communicating for the most part with other technical types – no simple English skills needed – jargon only spoken here.  Finally, we are retained in later years for our extensive technical knowledge and experience and presented as experts to the courts – only to find we can’t write and speak simple English to civil litigation lawyers, judges, and juries.

Nor is the civil litigation lawyer – the wordsmith in the process – relieved of a responsibility to confirm that the expert they retain can present their findings skillfully in well written, laymen’s terms.  Confirm that the expert can write so judges and juries can understand.

The role of the expert in the judicial system is to interpret and explain technical material.  One role of counsel is ensuring that he or she understands the report before it goes forward.  Counsel is like a gate keeper.

Being technical is neither an excuse nor the justification for poor writing.  The inability to write well is a career-limiting short-coming (see Ref. 2) – and a potential embarrassment to lawyers, judges, and juries, not to mention the engineer and the scientist.

My experience leading to these views on the state of expert report writing

My experience leading to these views has been with engineering and legal firms ranging in size from sole practicioners to 50 to 75 staff.  Firms located in eastern and western Canada, and overseas in Australia, the U.K., and the Caribbean.

However, my colleague, Gary Bartlett, P.Eng. noted that he experienced a culture in much larger organizations – 200+ staff, that encouraged and required good writing skills, and they achieved this (Ref. 2).  Gary was an electrical engineer with the Canadian air force – air crew, for about 12 years then with the aerospace industry for at least another 25 years.  He still writes reports for the industry.

So, while there is a problem out there, the character and extent of it varies.  It behooves the lawyer in selecting an expert to learn a little something about where his expert is coming from with respect to his skill writing a report.

Resources for expert report writers

CDs and books

I was prompted to write this item on receiving a newsletter from Expert Communications, Dallas, Texas, a few days ago. (Ref. 3)  This firm provides expert witness training tools and other services to experts.

The newsletter announced the availability of a CD on report writing entitled, Expert Report Writing: Effective and Defensible.  The CD is an hour-long teleseminar of a discussion between Rosalie Hamiliton of Expert Communications and Steven Babitsky, president of SEAK, Inc.  SEAK also provides services to experts. (Ref. 4)

Steven Babitsky is formerly a trial attorney and a co-author of Writing and Defending Your Expert Report.  This book is one of the best I’ve read and studied on the subject.  Every expert should be given a copy by their retaining counsel.

Rosalie advised in an e-mail that If you have Steven’s book you don’t need the CD, although they do complement one another to some extent.  But, she says, if you don’t have time to read a book and actually like to get your education via oral and video presentations, then the CD will provide insight into this important topic of report writing.

Critical thinking course

Talking about oral presentations, one of the most valuable experiences I’ve had in recent years, with respect to my practice in forensic engineerng investigation and the accompanying report writing, was to take a course in critical thinking.

This was an intensive, year-long, two, 1.5 hour lectures a week course given by Professor Chris MacDonald at Saint Mary’s University in Halifax (Chris is now at Ryerson University in Toronto). (Ref. 5)  There was considerable emphasis in the course on looking critically at the basis of statements made to us and that we make; What’s the statement founded on?  What are you saying and basing your statement on?  These are critical questions for an expert to keep in mind when writing a report.

The importance of instruction in critical thinking can be gathered from the fact that hundreds of first year students in the liberal arts programs at Saint Mary’s and other universities are required or encouraged to take a course like this.  The course was given by three different professors the year I took it.  My class had about 200 students.

It’s interesting that many universities require first year arts students to take a course in critical thinking.  But don’t require this of first year engineering students.  A serious omission in my opinion.

Experts, regardless of how experienced, well known, and long in the tooth they might be would benefit from a course like this – and their expert reports would be better for it.

But, like reading books, not everyone can take time out to take courses at a university.  I’m beginning to think that on-line sources like The Great Courses can help solve that problem. (Ref. 6)

This firm offers several hundred courses on DVD and CD on a range of topics including critical thinking, reasoning, and writing.  The presentations are good and reasonably priced.  You receive a synopsis of the course with the DVD if you still want to do some reading.  A transcript of the lectures can also be purchased.  Some of the courses are interactive.  I have three of their courses on reasoning and writing and will buy two more for $79 in the next two weeks.

Arguing and report writing

Gaining some understanding of Toulmin logic would also benefit those of us writing expert reports.  I see it as a practical logic as opposed to a formal logic.  Toulmin advocates – analogous with existing practice in law – a procedural rather than a formal notion of validity.  He outlines a way that assertions and opinions can be rationally justified.

His text, The Uses of Argument, is a hard read because of the terminology and style of writing in vogue in the U.K. in the 1950s when he first published his ideas. (Ref. 7)  But, fortunately, you can go on-line and view graphical representations of his ideas which I thought were quite good.  There are also courses and lectures on his methods in simple English.  The illustrations will remind experts in writing their reports of the importance of ensuring their statements are well founded.

There’s no shortage of resources on writing better expert reports

There’s no shortage of guidance and no excuse for not writing better expert reports.  This will be driven by the high standards required by civil procedure rules like Rule 55 in Nova Scotia.  Rules like this will result in the writing of better expert reports and the carrying out of more thorough forensic engineering investigations.

References

  1. American Society of Civil Engineers, Guidelines for Forensic Engineering Practice, 2003, Chapter 2, Qualifications of Forensic Engineers
  2. Personal communication. Gary Bartlett, P.Eng., VP Engineering, (ret’d), IMP Aerospace, Halifax, Nova Scotia, Canada
  3. Expert Communications, Dallas, Texas www.expertcommunications.com
  4. SEAK, Inc., United States www.seak.com
  5. MacDonald, C., The power of critical thinking, Canadian edition
  6. The Great Courses www.thegreatcourses.com
  7. Toulmin, Stephen E., The uses of argument, updated edition, 2003, Cambridge
  8. Howard, V. A. and Barton, J. H., Thinking on Paper, William Morrow and Company, 1986

 

 

 

It’s not Big-Data, it’s Big-Computer that’s making its presence felt in society

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Including in forensic engineering in big and helpful ways – but, we must know and keep in mind what the computer is doing.

One of the mistakes experts make is not understanding the computer programs they use to analyse data and what the programs are based on (Ref. 1).  This would include the accuracy of the mathematical models relevant to the problem they’re investigating.

We’ve heard about the discrepancies in the predictions of different climate-change models.  I also noted in a recent posting (Ref. 2) that big-data is giving us correlations not causes – and it’s the latter that’s of paramount importance in forensic engineering.

Big-data refers to the ability of society to harness huge amounts of data in novel ways with today’s computers, and analyse the data to produce useful insights on people, or goods and services of significant value. (Ref. 3)  This is the “big-data” revolution.

But Big-Data is really all about Big-Computer power.

I was reminded of this on reading an item in the Globe and Mail recently on how our lives are being “datafied” in both good and not-so-good ways (Ref. 4).  (The item is a good read if you’re interested in staying up to date on what’s happening with big-data)  I also reflected on this after doing a preliminary literature search for a case on-line last week in a few hours that would have taken a few days a decade or more ago.

The computer is the common denominator in what was reported in the Globe and Mail and my literature search.  The computer is generating a lot of the data that is subsequently being gathered together and analysed – also by the computer.

For me, I was able to quickly get a handle on existing and past standards, codes of practice, and guidelines in North America and Europe via Google.  I was also able to review the science relevant to my problem at Wikipedia.  Both using computer power.

But, at the end of the day, I’ve got to check the sources and citations supporting this information lest I make the mistake experts sometimes do of not knowing the accuracy of their sources.  I’ve started on this and did a little by e-mailing and in due course conferring on the telephone with a consultant in Texas.

It was “big-computer” power that took me across the continent and overseas not “big-data”.  The data was there – in a computer database; the computer went to it, and scooped it up for me.

References

  1. Babitsky, Steven and Mangraviti, Jr., James J., The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc, 2008
  2. Experts on the wane? Blog posted on this site on April 18, 2013
  3. Mayer-Schonberger, Victor and Cukier, Kenneth, Big Data: A Revolution That Will Transform How We Live, Work and Think, Houghton Mifflin Harcourt, New York, 2013
  4. The Globe and Mail, Thursday, May 9, 2013, page A21

The role of a professional engineer assisting counsel prepare for a Settlement Conference. Update on how to save time and money

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(You are likely to be concerned, as I am, at the situation described in the following – a situation that wastes our client’s time and money)

The update is of a short item that was the 8th in a series on the role of a professional engineer at the different stages of civil litigation.  All the items in the series are listed below in the Bibliography and can be read on this blog site.

The series was intended to help lawyers and their clients understand how they can use professional engineers in the resolution of disputes with technical issues.

Update

My update expresses concern that civil cases are getting to the Settlement Conference stage before a forensic engineering investigation of the cause of the failure or accident is carried out.

Someone is going to get stung one of these days going forward with a case without a reliable determination of cause.  I haven’t seen this happen yet but it’s due.  And the more unusual the technical problem, the greater the risk.

At a Settlement Conference, you put forward a summary of your arguments to the judge on behalf of your client.  Too often the arguments are based on a cause that seems obvious.  But until the investigation is commissioned and completed and a technical expert has rendered a reliable, objective opinion – as per the requirements of Rule 55, you just can’t be sure.

To some extent, implicit in reliable is thoroughness.  Thorough case preparation on your part can’t be had without a reliable investigation of cause early in the litigation.

Also, cases settle quicker once a forensic investigation is carried out.

Fairly recently, I’ve seen two cases settle within a few weeks to a couple of months after technical opinions were rendered – many years, that’s many years, after a failure in the one case and an accident in the other had occurred and litigation begun.  I suspect another accident that I’m aware of will resolve just as quickly.  Time is money.  I don’t know what the injured parties were thinking letting these cases go on for years.

The six tasks listed below were originally identified for a perfect litigious world – civil litigation unfolding as it should; in the best interests of the parties involved.  I’ve suggested a seventh task after checking the investigations I’ve completed and realizing how imperfect that world is.

Seriously, counsel can take a case forward to a Settlement Conference with greater confidence – much greater than that possible based on the seemingly obvious, if a forensic investigation of cause is carried about the time a statement of claim or defence is filed.  And litigation resolved earlier and money saved.

Original Settlement Conference

If mediation or arbitration is not tried or is unsuccessful then lawyers for the parties meet and confer with a judge to decide if a settlement is possible with his assistance.  By this time the parties will be ready to go to trial.  They will have the documents that they will be relying on, reports from professional engineers and other experts, physical and demonstrative evidence, and testimony from discovery.

The lawyers, in advance of the Settlement Conference, send the judge a brief summary of their arguments and any relevant documents.

At the conference the judge will listen to the lawyers and try to achieve a settlement.  The judge will sometimes give an opinion on how they would decide the case if they heard it at trial.  However, they cannot force a settlement and would not officiate at the trial because of their role in the Settlement Conference.

A professional engineer might assist counsel at this stage of civil litigation by carrying out the following tasks:

  1. Review all technical evidence and technical facts identified at discovery, paying particular attention to new evidence
  2. Re-assess determination of cause of failure, inadequate performance, or cause of accident
  3. Check all technical documents and information that will be relied on in counsel’s arguments during the Settlement Conference
  4. Identify technical evidence and facts favourable to the opposing party
  5. Re-assess the technical strengths and weaknesses of the claim or the defense and brief counsel
  6. Review and comment, as appropriate, on the technical content of counsel’s proposed summary to the judge of their arguments and documents
  7. Carry out a forensic engineering investigation if you didn’t do this years ago

Biblio

  1. What is forensic engineering?, published, November 20, 2012
  2. Writing forensic engineering reports, published, November 6, 2012
  3. Steps in the civil litigation process, published, August 28, 2012
  4. Steps in the forensic engineering investigative process, published October 26, 2012
  5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
  6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
  7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
  8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
  9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
  10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
  11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
  12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
  13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
  14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
  15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com

 

Investigating a vibrating building

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(This is not an East Coast ghost story)

(The following is one in a series of cases I have investigated that illustrate the different forensic engineering methods I use to investigate the cause of failures and accidents that result in civil litigation.  Knowledge of simple frost heave was important in this case)

The investigation of the vibrating building is reported under the following main headings with several sub-headings:

  • The case (A description of: 1. The building and the problem experienced by the owner; 2. The building’s foundations, and the problems with the building, 3. The legal/technical issues, and, 4. My client)
  • Forensic engineering investigation of the problem and the methods used
  • Findings of the investigation (conclusions with respect to the technical issues)
  • Resolution
  • Lessons learned

The case

Description of the building and the problem 

The building was a large, well appointed mobile home in the Halifax area that vibrated quite noticeably during the winter months.  The vibration occurred when the owner and his family walked the length of their home from one room to another.

The owner also wanted to know why the interior partitions at some locations were separating from the ceiling.

Legal/Technical Issues

The main issues were the cause of the vibration and the cause of the gaps at the tops of the partitions.

Client

I was retained to investigate the problem by the company who placed the mobile home on the site.

Forensic engineering investigation

My forensic engineering investigation involved the following methods:

  1. Take a briefing on the problem from the owner.
  2. Visually examine the building and the site it was on.
  3. Examine and determine how the building was supported and the foundations constructed.
  4. Sample and determine the type of foundation soils underlying the building site and their physical properties.
  5. Analyse the data collected during these examinations.

Investigations and Findings

Briefing  The owner was quite clear in describing how the building vibrated in winter in walking from one end of his home to the other.  He also described the gaps at the top of the partitions.  The building did not vibrate during the summer.

I wasn’t on site during the winter but saw and measured gaps of about 1/4 to 1/2 inches during my visit.

Visual examination:  The home was on a sloping site with the length of the building aligned up the slope.

Examine foundations:  I crawled under the building and established that the mobile home was supported on two continuous steel beams running the length of the mobile home.  The beams were in turn supported by concrete block piers at regular intervals.  The piers were supported on the sloping ground a few inches below the surface.

Because of the sloping ground, the height of the piers and the home above the ground gradually increased from 1.5 feet at the upslope end to 3.5 feet at the downslope end.

Test foundation soils:  I took samples of the soils supporting the piers and had the samples tested in a laboratory.  I also researched the soil geology of the area – the surficial geology.

The tests and research established that the foundation soils comprised a dense, silty glacial till typical of the many drumlins in the area.

Drumlins are teardrop shaped glacial soil deposits.  The Citadel in Halifax is on a drumlin.

Analyse data: The fact that the mobile home vibrated in winter but not in summer was interesting, and took some reflection on my part.

The shallow depth of the pier foundations supporting the mobile home – a few inches, was not typical for foundations in this area.

We dig our foundations down typically about 3.5 to 4.0 feet in the Halifax area to get below the depth of frost penetration and the effects of frost heave.

A characteristic of the fine grained soils found beneath the piers is that they are very frost susceptible – water collects in the soils easily and freezes in winter.  The mixture of water and soil expands on freezing – frost heave to everyone.  The more soil freezes – the greater the depth of freezing, the greater the frost heave.

The pier foundations would have heaved in winter for certain considering they were only a few inches below the ground surface, not 3.5 to 4.0  feet..

The depth to which the soil freezes depends on the severity of the winter.  Deeper in cold winters, shallower in warmer winters.

A source of heat from an external source other than the weather can also affect the depth of frost penetration in the ground and the amount of frost heave.

Regardless of how well we typically insulate our homes, heat is lost in winter to the surrounding air.  The air is warmed in the process and in turn warms other surfaces in contact where it is protected from the wind.

That was the case at the upslope end of the mobile home where the building was closer to the ground – 1.5 feet.  The depth of frost penetration and heave could be expected to be less at this end of the building than at the downslope end where the home was 3.5 feet above the ground.  It was also exposed to the wind at this downslope location.

Frost was penetrating the ground to an increasing depth from the 1.5 foot end of the mobile home to the 3.5 foot end.

All the piers along the length of the home would heave due to frost action but not necessarily a proportionate amount.  This is because conditions at each pier could be expected to vary a little: Foundation soil conditions could vary, also heat loss from the mobile home, protection from the wind, etc.

The steel beams could be expected to be lifted off the piers completely at some locations – and “suspended” between adjacent piers, because of the disproportionate amount of heave at the adjacent piers.

Steel beams deflect between piers.  The greater the suspended distance between piers providing support to a mobile home the greater deflection.  Walking along a floor supported on such beams causes the floor and the beam to deflect and vibrate.  I think a good many of us have walked along wooden planks supported at each end and felt the deflection and vibration.

Conclusion

I concluded that the mobile home was vibrating as much as it was because it was not properly supported by the piers in the winter time.  Because of the magnitude of the vibration, I believed that the mobile home was only supported by the piers at the ends of the two beams.

The gaps formed at the top of the partitions because the joints between the tops of partitions and the ceiling are relatively weak and would separate when the supporting beams deflected.  I suspect that small gaps would have formed at the bottom of the partitions as well but went unnoticed.

Resolution

I recommended digging and founding the piers deeper and below the depth of frost penetration and heave.

Lessons learned

  1. Always look at the weather conditions along different parts of a foundation when unusual problems are occurring in the structure above.

 

 

 

 

 

Experts on the wane?

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I don’t think so..!!  

Certainly not in the forensic engineering field where ‘small-data’ is the rule and where there will always be a need for the subject-area expert – a well experienced, knowledgeable person in a particular field of study.

Someone who can gather engineering data and facts, for example, then bridge the gap between these facts and the formulation of an opinion on cause.  Finally, someone who can help civil litigation lawyers and the judge understand the technical cause of a failure or accident in the built environment (Ref. 1).

But, exciting things are happening in the Big-Data world

But, there does appear to be exciting things happening in the ‘big-data’ world as suggested in a recent item in the Globe and Mail. (Ref. 2)  The item – headed up ‘Experts on the wane?’, quotes the authors of a recent book (Ref. 3) who predict “Data-driven decisions are poised to augment or overrule human judgement”.  The new big-data way will “…let the data speak.”

(The book is a very good read – a study to some extent, with much insight on what can be learned from large amounts of data, and also how we are being monitored with today’s technology.  There is an extensive bibliography)

No excitement in the Small-Data world

That may be the case as far as big-data is concerned but there’s nothing new there in the ‘old’, small-data world.  Practitioners of forensic engineering investigation have been “letting the data speak” all along and following the evidence where it leads.

Definition of big-data with a good example

Big-data refers to the ability of society to harness huge amounts of data in novel ways with today’s computers, and analyse the data to produce useful insights on people, or goods and services of significant value. (Ref. 3)

For example, Amazon now regularly analyses tens of thousands of customers’ book purchases to predict what related topics any one us will be inclined to purchase next, and then offer it to us.  The experts who did this in the past were all laid off.

Engineers go outdoors and get dirty – fortunately for the justice system

In spite of this ability of today’s technology, it will still be necessary for an engineer to go on site and get his hands dirty and mud on his boots examining a foundation failure or measuring skid marks at the scene of a traffic, or slip and fall accident.  And crawling over the debris of a collapsed structure.

We engineers in North America are known overseas for our interest and willingness to go on site and get data firsthand.  And the justice system appreciates that hands-on approach.  The big-data way won’t cut it in the investigation of a failure in the built environment.

The justice system still wants to know the cause of a problem

As well, gathering large amounts of data and analysing the data with computers focuses on establishing correlations rather than causes.  Identifying the what of a problem rather than the why – the cause of a problem. (Ref. 3)  That would never do in forensic engineering where the cause of a problem must be determined before you can fix it, and before the justice system can determine damages.

The old, small-data way solves problems in the built environment

All the problems that I experience in my forensic engineering practice – requiring the gathering and analysis of small-data by an expert, or that I hear about from my colleagues in their practices, and see in the literature, are from the built environment.

Problems and failures in the built environment to do with the planning, design, construction, performance, and maintenance of structures like industrial, commercial, institutional, and residential low- and high-rise buildings.  Also civil engineering structures like bridges, roads, airport runways and taxiways, dams, drainage systems, earthworks, harbour works, and hydraulic works.

And included is the plant and equipment in these structures and the infra-structure.  Also the traffic, industrial, and slip and fall accidents that occur in and around these structures.

The big-data way can’t solve these problems because these problems in the built environment are not characterized by a gazillion amount of data.  There are a lot of data sometimes but not that much.  These problems are characterized by small amounts of data appropriate to the small-data way of an expert – who then applies his judgement to formulate an opinion as to cause.

Experts on the wane?  No, they’re not.  There will always be a need for experts as long as there are failures and accidents in the built environment.

References

  1. The Globe and Mail, Thursday April 11, 2013, page S8.  A relevant item, an obituary of a man, Martin B. Wilk, scientist, statistician, sage, who thought of statistics as a beautiful blend of science and art, bridging the gap between mathematical facts and human understanding.
  2. The Globe and Mail, March 6, 2013, page L10.  See ‘Experts on the wane?’
  3. Mayer-Schonberger, Victor and Cukier, Kenneth, Big Data: A Revolution That Will Transform How We Live, Work and Think, Houghton Mifflin Harcourt, New York, 2013.

Investigation of a fatal Bahamian aviation accident

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(The following is one in a series of cases I have investigated that illustrate the different forensic engineering methods I use to investigate the cause of failures and accidents that result in civil litigation. 

This is a good case for illustrating how simple an engineering investigation can sometimes be, and how knowledge of the geology of an area can form the basis of informed comment.

The investigation of the fatal aviation accident is reported under the following main headings with several sub-headings:

  • The case (a description of the fatal aviation accident, the legal/technical issues, and my client)
  • Forensic engineering investigation of the failure and the methods used
  • Findings of the investigation (conclusions with respect to the technical issues)
  • Post mortem (resolution and lessons learned)

The case

Description of fatal aviation accident 

Ms. Jane Doe was killed when her plane crashed on take-off from an international airport on one of the family islands in the Bahamas.  The accident occurred near a runway where I had completed a geotechnical/foundation investigation prior to construction of the runway several years previously.

Legal/Technical Issues

The main issue was whether or not the propeller on the starboard side of the aircraft – the right side for landlubbers, could penetrate several inches into the ground at the crash scene, and this not occur on the port side – the left side.

Client

I was retained by a U.S. aviation accident reconstruction expert on the advice of the Public Works Department in Nassau, Bahamas and a law firm practicing in Nassau.  Both were involved in the case.  The Department was my client for the earlier geotechnical investigation.  The law firm knew of my work as a professional engineer in the Bahamas.

Forensic engineering investigation

My forensic engineering investigation and advisory services involved the following methods:

  1. Taking a telephone briefing on the aviation accident by the U.S. reconstruction expert
  2. Studying photographs of the crash scene e-mailed as attachments
  3. Reviewing my geotechnical/foundation investigation report for the runway design and construction
  4. Briefing the U.S. expert on the geological processes on the Bahamian island and the degree of probability that the propeller on the starboard side penetrated the ground where the port propeller did not

You will note that this forensic engineering investigation was a simple document review and my knowledge of the published geology of this particular Bahamian island.  An extremely simple investigation.  There would have been no advantage to me flying to the island and examining conditions at the crash site because these would have changed since the accident.

Conclusion

I was able to advise the U.S. aviation expert with considerable certainty the degree of probability that the propeller penetrated the ground several inches on the starboard side.  I’m not at liberty to state that degree of probability.

Resolution

The case may still be in litigation.

Lessons learned

  1. Do the most thorough and reliable engineering work possible every time because you never know how the data you collect will want to be used for a different purpose in the future.
  2. Worthwhile forensic engineering investigations of serious incidents, e.g., fatal aviation accidents, can be carried out at a distance based on a simple document review.  And sometimes that’s all that is possible, as in this case, because site conditions had changed since the accident.

 

 

Most influential business ethics blog; Chris MacDonald, Ph.D, Blogger

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You might be interested in Chris MacDonald’s business ethics blog at www.businessethicsblog.com  Particularly if you are in one of the professions and practice in a business-like manner.

Chris is an educator, speaker, and consultant in business ethics.  He teaches in a school of management at a university in Toronto and is associated with another in the U.S.  He is co-editor of the Business Ethics Journal Review. http://businessethicsjournalreview.com/

Chris is a philosopher by training, a practical philosopher by inclination – this chap’s not stuffy by a long shot.  He’s seldom still.  An east coast guy that has done good and is influencing the business world in a big way.  And doing this in an area – business ethics, that is in desperate need of a good influence.

Philosophy means “love of wisdom”, from the ancient words philos (love) and Sophia (wisdom) (Ref. 1).  Think most of us in the professions are in that good place.

I met Chris when he taught a critical thinking course a few years ago at Saint Mary’s University in Halifax.  One of the best courses I’ve taken in my life by a good teacher, and a course that all professional engineers practicing forensic engineering should take.

Chris has twice been declared one of the “Top 100 thought leaders in trustworthy business behaviour”.  He has several times been named one of the “100 most influential people in business ethics”.

He has been blogging since November, 2005.  His blog is current, well designed, easy to navigate, and very readable – not cluttered and busy like so many.

He tells you about his blog much better than I could at his web address above.  I think a good, spirited summary of who he is and what he’s trying to do with links is at his page, ‘About’.  He warns you on this page that you will probably be irritated by his blog – but, I found, your thinking challenged in the process.

One of his recent postings lists five must-reads on business ethics at http://www.canadianbusiness.com/blogs-and-comment/5-business-ethics-must-reads/

I’ve been reading some of Chris’ material on ethics for several years now.  It’s well I should, considering that one-third of the content of a 140 page set of guidelines for forensic engineering practice – 46 pages, is on ‘ethics in forensic engineering’ (Ref. 2).  Another approximately one-third is on legal matters and business considerations.

One-fifth of another 200 page set of guidelines for forensic engineers is on legal matters and guidance for experts preparing for the civil litigation process (Ref. 3).  There is some emphasis on ethics in these guidelines too.

Also, I should read the business ethics blog if there’s anything to my comments on professional ethics and the tyranny of the bottom line, updated, a blog I posted October 11, 2012 (Ref. 4).

Those are enough reasons for a professional engineer to take an interest in Chris’ blog, as I have, but allow me one more reason.

Rule 55 in the Nova Scotia’s civil procedures rules is quite direct in informing experts that they are reporting to the court, and that they are to be objective – that’s all there is to it, with no qualifiers on objectivity.  And experts are to state the reliability of their opinions.  These charges to experts from the justice system are explicit and contain a clear ethical requirement.

It’s possible some of you might be interested in Chris’ blog.  I think he’s got something to say to all of us.

References

1. Mannion, James, Essentials of Philosophy, The Basic Concepts of the World’s Greatest Thinkers, Fall River Press, New York, 2002

2. Lewis, Gary L., Ed., ASCE (American Society of Civil Engineers), Guidelines for Forensic Engineering Practice, 2003

3. ASCE, Guidelines for Failure Investigation, 1989

4. Professional ethics and the tyranny of the bottom line. Updated.  Blog posted, October 11, 2012