{"id":1683,"date":"2013-06-20T14:32:22","date_gmt":"2013-06-20T14:32:22","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=1683"},"modified":"2013-06-20T14:32:22","modified_gmt":"2013-06-20T14:32:22","slug":"mistakes-forensic-engineers-make","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2013\/06\/20\/mistakes-forensic-engineers-make\/","title":{"rendered":"Mistakes forensic engineers make"},"content":{"rendered":"

(Note<\/span>:<\/strong> Please<\/strong> contact me<\/strong> with other examples of mistakes made by\u00a0forensic engineers – in addition to the following, and I will publish them in an update)<\/span><\/p>\n

Following are mistakes\u00a0forensic engineers\u00a0make in the practice of forensic engineering in Atlantic Canada.\u00a0 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.<\/p>\n

Counsel can assist the forensic engineer avoid many of these mistakes.\u00a0 Asking the forensic engineer about any of these issues\u00a0is one way of assisting.<\/p>\n

Most of the mistakes occur in the investigative and report preparation stages of a forensic investigation (Ref. 2).\u00a0 Mistakes occur in other stages of an investigation but these are not reported here.<\/p>\n

Taking case<\/h1>\n

Mistake #1<\/strong>:<\/span> Preparing different CVs for different clients.<\/strong><\/p>\n

This might happen inadvertently when a professional engineer\u00a0updates his CV for\u00a0each new case.<\/p>\n

Lesson<\/strong><\/em>:\u00a0More than one CV\u00a0may imply or show that\u00a0the engineer’s CV changed depending on the type of case being considered.<\/p>\n

Solution<\/strong><\/em>:\u00a0A professional engineer should have one CV<\/p>\n

Mistake #2<\/strong>:<\/span> Accepting rush cases<\/strong> that do not permit the engineer to follow his standard protocol.<\/p>\n

Counsel sometimes call professional engineers late in the process of civil litigation with last-minute assignments.\u00a0 These assignments require a rushed investigation, review, analysis, and forming of an opinion.<\/p>\n

Lesson<\/strong><\/em>:\u00a0Rushing an\u00a0investigation can produce an opinion that is\u00a0vulnerable to rebuttal and cross-examination.\u00a0 Forensic engineers\u00a0need to be able to recognize a rush assignment and\u00a0decline when the timeframe is too tight to do their work properly.<\/p>\n

Solution<\/strong><\/em>:\u00a0Counsel should not offer and professional engineers should\u00a0not accept rush or last-minute assignments.<\/p>\n

Mistake #3<\/strong><\/span>: Accepting low-budget cases.<\/strong>\u00a0 Forensic engineers sometimes accept low-budget cases.<\/p>\n

Lesson<\/strong><\/em>: In\u00a0low-budget cases, it\u00a0is unlikely that forensic engineers will be able to do adequate investigation and analysis due to budgetary constraints.\u00a0 There is never an adequate excuse – including a low budget –\u00a0for doing substandard or incomplete forensic investigative work.<\/p>\n

Solution<\/strong><\/em>: Forensic engineers should not accept low-budget cases.\u00a0 The forensic engineer should determine at the outset if an adequate budget has been set to perform investigative work properly.<\/p>\n

Investigation<\/h1>\n

Mistake #4<\/strong>:<\/span> Failing to document.<\/strong>\u00a0 Forensic engineers fail to adequately document their investigation and findings.<\/p>\n

Lesson:<\/strong>\u00a0\u00a0<\/strong><\/em> <\/strong>The judge, jury, opposing counsel, and\u00a0other\u00a0forensic engineers may take a long, hard look at the manner in which a forensic engineer documents his investigative\u00a0work.\u00a0 If the engineer is careless, less weight\u00a0will be given to\u00a0his findings and opinion.\u00a0 Forensic engineers run the risk of\u00a0having their investigative tasks, reports, opinions, and testimony discounted or even excluded.<\/p>\n

Solution:<\/strong><\/em> <\/strong>Forensic engineers should meticulously document their investigative work.<\/p>\n

Mistake #5: <\/strong><\/span>Failing to establish and follow protocol.<\/strong> Failing to\u00a0follow one’s own standard investigative protocol due to time or financial constraints can be a serious mistake.<\/p>\n

Lesson:<\/strong><\/em> 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.<\/p>\n

Solution:<\/strong><\/em> <\/strong>Brief retaining counsel on the difficulty this presents and consider\u00a0declining the assignment when the deadline or budget is insufficient.<\/p>\n

Mistake #6<\/strong>:<\/span> Failing to review the the complete set of records.\u00a0\u00a0<\/strong>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.<\/p>\n

Lesson:<\/strong><\/em> <\/strong>In agreeing to review less than the full record, the forensic engineer may put themselves in a very difficult position.\u00a0 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.\u00a0 They may\u00a0be asked to review the omitted records while testifying.<\/p>\n

Solution:<\/strong><\/em> <\/strong>Forensic engineers should not accept portions of records or an incomplete set of records to review without the full understanding\u00a0of retaining counsel of the potential consequences of this.<\/p>\n

Mistake #7<\/strong>:<\/span> Not asking for all the records.<\/strong>\u00a0 Forensic engineers sometimes do not ask for all of the records in the case they are working on.<\/p>\n

Lesson:<\/strong><\/em> The forensic engineer shows a lack of due diligence when he does not ask for a complete set of records from retaining counsel.\u00a0 In addition, the engineer opens\u00a0himself up to unnecessary questioning by opposing counsel.<\/p>\n

Solution:\u00a0<\/strong><\/em> <\/strong>The forensic engineer should ask for all documents.<\/p>\n

Mistake #8<\/strong><\/span>: Not corroborating facts provided by counsel.<\/strong>\u00a0 Forensic engineers take facts provided by retaining counsel without checking them.<\/p>\n

Lesson:<\/strong><\/em> Forensic engineers who do not corroborate the facts are vulnerable to cross-examination by opposing council.<\/p>\n

Solution:<\/strong> <\/em>Where feasible, corroborate the facts in the case.\u00a0 This is best done by a comparison to the records, documents, statements, discovery testimony, and investigative findings.<\/p>\n

Writing reports<\/h1>\n

Mistake #9:<\/span>\u00a0Writing reports that are based on incomplete investigations\u00a0and insufficient data.<\/strong><\/p>\n

Forensic engineers sometimes write reports, for example,\u00a0a preliminary report, that they do not anticipate will become part of the litigation process.\u00a0 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\u00a0engineering certainty.<\/p>\n

Lesson:<\/strong><\/em> The failure to do a complete\u00a0and adequate investigation and testing will always look worse when the engineer is forced to testify and support his (preliminary) report.<\/p>\n

Solution:<\/strong><\/em> <\/strong>Forensic engineers writing reports should always anticipate that they may have to defend their reports at discovery or trial.\u00a0 The report should be of a quality that is easily defended.<\/p>\n

Do not write a report and express an opinion until you have sufficient facts to do so.\u00a0 It might be necessary after studying the available evidence to advise counsel that\u00a0he is unable to render an opinion to a reasonable degree of engineering certainty.<\/p>\n

Mistake #10:<\/strong><\/span> Writing a report without being asked by counsel.\u00a0\u00a0<\/strong>Professional engineers may do this because it is\u00a0a natural step in an investigation.\u00a0 However, counsel is an advocate on behalf of the client.\u00a0 If the investigative findings are not favourable counsel may not want one\u00a0published.<\/p>\n

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

Lesson:<\/strong><\/em> Forensic engineering reports are generally discoverable.\u00a0 They are also expensive and must be requested.<\/p>\n

Solution:<\/strong><\/em> <\/strong>Do not write a report until retaining counsel requests one.\u00a0 But, encourage a report because it is usually the best way to explain fully and\u00a0properly to counsel and\u00a0to the judge and\/or jury the\u00a0technical issues, the\u00a0forensic investigation and the findings.\u00a0 Judges are wordsmiths and usually prefer a well written report.<\/p>\n

Mistake #11<\/strong>:<\/span> Not writing a report according to civil procedure rules<\/strong> like Rule 55 in Nova Scotia.\u00a0\u00a0Rule 55\u00a0is\u00a0very explicit on what to cover in a report.\u00a0 It\u00a0outlines what the justice system needs to resolve the technical issues in a dispute.<\/p>\n

Lesson:<\/strong><\/em> Not writing a report according to the rules may undermine the report and reduce it’s weight.<\/p>\n

Solution:<\/strong><\/em> <\/strong>Write your report according to the rules.<\/p>\n

Mistake #12:<\/strong><\/span> Sharing draft reports with counsel.<\/strong>\u00a0 Forensic engineers share their draft reports with retaining counsel and then re-work the reports.<\/p>\n

Lesson:<\/strong><\/em> <\/strong>Sharing draft reports invites close questioning from opposing counsel about the influence of retaining counsel on the report writing process.<\/p>\n

Solution:<\/strong> <\/em>Do not share draft reports with retaining counsel.<\/p>\n

Mistake #13:<\/strong><\/span> Not ensuring counsel understands the investigation and the findings thoroughly<\/strong> – the investigative tasks, the purpose of\u00a0each task, the data from each task, the analysis, the findings, and the cause of the problem.<\/p>\n

Lesson:<\/strong><\/em> <\/strong>Counsel may not present the technical evidence correctly and as a result\u00a0argue ineffectively on behalf of his client.\u00a0 This could reflect unfairly on the forensic engineer.<\/p>\n

Solution:<\/strong><\/em> <\/strong>Recommend a meeting with\u00a0counsel and\u00a0report on the investigation in detail.\u00a0 Make certain counsel clearly understands.<\/p>\n

References<\/strong><\/p>\n

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

    (Note: Please contact me with other examples of mistakes made by\u00a0forensic engineers – in addition to the following, and I will publish them in an update) Following are mistakes\u00a0forensic engineers\u00a0make in the practice of forensic engineering in Atlantic Canada.\u00a0 They … 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":[16],"tags":[],"_links":{"self":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1683"}],"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=1683"}],"version-history":[{"count":58,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1683\/revisions"}],"predecessor-version":[{"id":1745,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1683\/revisions\/1745"}],"wp:attachment":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/media?parent=1683"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/categories?post=1683"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/tags?post=1683"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}