Do we jeopardize the appearance of our objectivity when we are retained and confer directly with a litigant rather than with their counsel?<\/p>\n
Sometimes counsel recommends that their client\u00a0get an expert to investigate their problem, then get back to them with a report.\u00a0 Other times the litigant does this first then retains a lawyer.<\/p>\n
How do we\u00a0stay at arm’s length\u00a0from the person with the problem in a situation like this and be seen to be objective?<\/p>\n
What does this do to our need as forensic engineers “to be objective and be seen to be objective”?<\/p>\n
I had this situation develop a while ago\u00a0when I was retained by\u00a0a property owner with a problem who\u00a0subsequently retained counsel.\u00a0 It was difficult to stay at arm’s length particularly in view of the plaintiff’s well informed technical background compared to counsel’s.<\/p>\n
I was reminded of\u00a0this situation again\u00a0last week when a litigant telephoned with\u00a0a serious\u00a0enough problem.\u00a0 The quite technical litigant described their problem well.\u00a0 They also referenced their lawyer, a senior person in the\u00a0town who does not advertise\u00a0themselves as\u00a0practicing\u00a0civil litigation.<\/p>\n
What’s going\u00a0to happen if I take this case?\u00a0 The inclination will be to confer with the technical litigant and much less so with the quite possibly very non-technical counsel.<\/p>\n
Experts in the U.S. are being advised by organizations like\u00a0Expert Communications and SEAK, Inc. not to take cases like this.\u00a0(Ref. 1, 2)\u00a0There is too much risk to the perceived objectivity of the forensic engineer according to these groups.\u00a0 If we\u00a0appear to be biased in the one instance, what does that do\u00a0to our credibility for evermore?<\/p>\n
Atlantic Canada is not the U.S. – civil litigation is different in the U.S., but I think we’ve got to be careful up here, nevertheless,\u00a0and take\u00a0steps to ensure we work\u00a0closely with counsel as forensic engineers even though we might be initially retained by the litigant.<\/p>\n
I have in the past, and would in the future, report directly to counsel and copy all material to the litigant.\u00a0 I would explain to the litigant that this is the best procedure and in his interests.\u00a0 An advantage is the ongoing opportunity to explain and keep counsel up to speed on\u00a0technical matters.<\/p>\n
I’ve had the experience of two cases where counsel thought they understood their case technically, and declined my briefing, and\u00a0each case went badly for the plaintiff, and indications were – from the judge, no less, that they shouldn’t have.<\/p>\n
It’s particularly important, in the interests of\u00a0being seen to be as objective as possible, to have the accounts go through counsel.\u00a0 This also enables counsel to carry out ongoing assessments of the merits of the case, including legal and forensic engineering investigative costs as a percent\u00a0of estimated damages. (Ref. 3)<\/p>\n
We need to guard the appearance of our objectivity with a vengeance, for the benefit of the litigant, ourselves, and counsel.\u00a0 But it’s not always easy when the litigant seeks and\u00a0retains the forensic engineer directly.<\/p>\n
References<\/strong><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Do we jeopardize the appearance of our objectivity when we are retained and confer directly with a litigant rather than with their counsel? Sometimes counsel recommends that their client\u00a0get an expert to investigate their problem, then get back to them … Continue reading \n