{"id":1440,"date":"2013-05-02T14:36:13","date_gmt":"2013-05-02T14:36:13","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=1440"},"modified":"2013-05-02T14:36:13","modified_gmt":"2013-05-02T14:36:13","slug":"the-role-of-a-professional-engineer-assisting-counsel-prepare-for-a-settlement-conference-update-on-how-to-save-time-and-money","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2013\/05\/02\/the-role-of-a-professional-engineer-assisting-counsel-prepare-for-a-settlement-conference-update-on-how-to-save-time-and-money\/","title":{"rendered":"The role of a professional engineer assisting counsel prepare for a Settlement Conference. Update on how to save time and money"},"content":{"rendered":"

(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)<\/strong><\/span><\/p>\n

The update is of a short item\u00a0that was\u00a0the 8th\u00a0in a series on the role of a professional engineer at the different stages\u00a0of civil litigation.\u00a0\u00a0All the items\u00a0in the series are listed below in the Bibliography<\/strong> and can be\u00a0read on this blog site<\/strong>.<\/p>\n

The series\u00a0was intended to help lawyers and their clients understand how they can use professional engineers in the resolution of disputes with technical issues.<\/p>\n

Update<\/strong><\/h1>\n

My\u00a0update\u00a0expresses concern that civil cases are getting to the Settlement Conference stage\u00a0before\u00a0a forensic engineering investigation of the cause of\u00a0the failure or accident is carried out.<\/p>\n

Someone\u00a0is going to get stung one of these days going forward with a case without a reliable determination of cause.\u00a0 I haven’t seen this\u00a0happen yet but it’s due.\u00a0 And the more unusual the technical problem, the greater the risk.<\/p>\n

At a Settlement Conference, you\u00a0put forward a summary of your arguments to the judge on behalf of your client.\u00a0\u00a0Too often the\u00a0arguments are based on a cause that seems<\/em> obvious.\u00a0 But until the\u00a0investigation\u00a0is 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.<\/p>\n

To some extent, implicit in reliable is thoroughness.\u00a0 Thorough case preparation on your part can’t be had without a reliable investigation of cause early in the litigation.<\/p>\n

Also, cases settle quicker once a forensic\u00a0investigation is carried out.<\/p>\n

Fairly recently, I’ve seen two cases settle within a few weeks to a couple of months after\u00a0technical opinions were rendered – many years, that’s many years<\/em>, after\u00a0a failure in the one case and\u00a0an accident in the other had occurred and litigation begun.\u00a0\u00a0I suspect another accident that I’m aware of will\u00a0resolve just as quickly.\u00a0 Time is money.\u00a0 I don’t know what the injured parties were thinking letting these cases go on for years.<\/p>\n

The six tasks<\/strong> listed below were originally identified for a perfect litigious world – civil litigation unfolding as it should; in the best interests of the parties involved.\u00a0 I’ve suggested a seventh task<\/strong><\/span> after\u00a0checking the investigations I’ve completed and realizing how imperfect that world is.<\/p>\n

Seriously, counsel can take a case forward to\u00a0a\u00a0Settlement Conference with greater confidence – much greater than that possible based on the seemingly <\/em>obvious, if a forensic\u00a0investigation of cause is carried about the time a statement of claim or defence is filed.\u00a0 And\u00a0litigation resolved\u00a0earlier and money saved.<\/p>\n

Original Settlement Conference<\/strong><\/p>\n

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.\u00a0 By this time the parties will be ready to go to trial.\u00a0 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.<\/p>\n

The lawyers, in advance of the Settlement Conference, send the judge a brief summary of their arguments and any relevant documents.<\/p>\n

At the conference the judge will listen to the lawyers and try to achieve a settlement.\u00a0 The judge will sometimes give an opinion on how they would decide the case if they heard it at trial.\u00a0 However, they cannot force a settlement and would not officiate at the trial because of their role in the Settlement Conference.<\/p>\n

A professional engineer might assist counsel at this stage of civil litigation by carrying out the following tasks:<\/p>\n

    \n
  1. Review all technical\u00a0evidence and technical facts\u00a0identified at discovery,\u00a0paying particular attention to\u00a0new evidence<\/em><\/strong><\/li>\n
  2. Re-assess determination of cause of failure, inadequate performance, or cause of accident<\/em><\/strong><\/li>\n
  3. Check all technical documents and information that will be relied on in counsel\u2019s arguments during the Settlement Conference<\/em><\/strong><\/li>\n
  4. Identify technical\u00a0evidence and facts\u00a0favourable to the opposing party<\/em><\/strong><\/li>\n
  5. Re-assess the technical strengths and weaknesses of the claim or the defense and brief counsel <\/em><\/strong><\/li>\n
  6. Review and comment, as appropriate, on the technical content of counsel\u2019s proposed summary to the judge of their arguments and documents<\/em><\/strong><\/li>\n
  7. Carry out a forensic engineering investigation if you didn’t do this years ago<\/em><\/span><\/strong><\/li>\n<\/ol>\n

    Biblio<\/strong><\/p>\n

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

      <\/h1>\n

       <\/p>\n","protected":false},"excerpt":{"rendered":"

      (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\u00a0that was\u00a0the 8th\u00a0in a series on the role … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[15,16,17],"tags":[],"_links":{"self":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1440"}],"collection":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/comments?post=1440"}],"version-history":[{"count":27,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1440\/revisions"}],"predecessor-version":[{"id":1468,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1440\/revisions\/1468"}],"wp:attachment":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/media?parent=1440"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/categories?post=1440"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/tags?post=1440"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}