{"id":185,"date":"2012-11-01T11:46:09","date_gmt":"2012-11-01T11:46:09","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=185"},"modified":"2012-11-01T11:46:09","modified_gmt":"2012-11-01T11:46:09","slug":"the-cost-of-forensic-engineering-investigation","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2012\/11\/01\/the-cost-of-forensic-engineering-investigation\/","title":{"rendered":"The cost of forensic engineering investigation"},"content":{"rendered":"

The problem <\/span><\/h1>\n

Civil litigation can be expensive, and it’s very difficult to predict the\u00a0costs\u00a0at the start.\u00a0 This is particularly\u00a0the case in estimating the costs for the later steps in\u00a0a forensic engineering investigation.\u00a0\u00a0Engineering investigation\u00a0can be\u00a0a\u00a0significant component of the cost\u00a0of civil litigation involving the built environment.<\/p>\n

It’s\u00a0even more\u00a0difficult estimating costs if there is a commitment to following the\u00a0evidence and carrying out follow-up investigations.\u00a0 This\u00a0to ensure\u00a0a thorough investigation\u00a0of the cause of a failure and\u00a0the\u00a0rendering of a reliable, objective\u00a0opinion.\u00a0 It’s difficult for both the expert and counsel.<\/p>\n

In spite of\u00a0this difficulty, counsel should run not walk to the nearest exit if an expert offers or agrees to a fixed price to investigate the cause of a failure or an accident.\u00a0 This approach to managing costs\u00a0can adversely affect the thoroughness of an investigation and compromise the credibility of the expert.<\/p>\n

Unfortunately, as far as the expense of civil litigation is concerned and, understandably, wanting to have some assessment of this at the start, it has\u00a0been said, somewhat crudely,\u00a0“If you’ve got to ask how much it costs, you can’t afford it”.<\/p>\n

Put another way by an experienced\u00a0professional engineer who had a\u00a0lengthy career in engineering,\u00a0and then went on to\u00a0study law and economics and\u00a0practised civil litigation for years, ”\u00a0You’ve got to have a problem (a failure, inadequate performance, an accident), you’ve got to know you\u00a0have a problem (results of an investigation confirming a failure has occurred, and the cause of the failure), and you’ve got to have the money to fix the problem (the money to initiate an action claiming damages, or defending against a claim,\u00a0through to trial if necessary)”. (Ref. 1)\u00a0 These comments are difficult to\u00a0read but contain much truth.<\/p>\n

David Stockwood, Q.C. puts it\u00a0in a more refined\u00a0way, “Most clients are unfamiliar with the technical and procedural aspects of litigation.\u00a0 They are also unfamiliar, and shocked, by the financial realities.\u00a0 While it is necessary to fully explain the “facts of life” at an early stage (and I would add, at on-going stages), use a delicate touch so\u00a0that a client does not become completely discouraged from enforcing\u00a0his rights”. (Ref. 2)<\/p>\n

Following is a subjective assessment of the difficulty estimating the costs of\u00a0the steps in a forensic engineering investigation.\u00a0 The more difficult the step the less accurate the estimate.\u00a0 The different\u00a0steps are described in a previous blog (Ref. 3).<\/p>\n

The cost assessment at the start of an investigation assumes the request is made of\u00a0a professional\u00a0engineer after\u00a0he\u00a0has been contacted, the\u00a0failure briefly described, and the documents identified that counsel will provide.<\/p>\n

The assessment is based on my experience in forensic engineering investigation of failures in the built environment on the east coast of Canada:<\/p>\n

Difficulty estimating the cost of forensic engineering investigaion on the east coast of Canada<\/strong><\/p>\n

    \n
  1. Document review ……………………………………………………………… Easy<\/li>\n
  2. Visual assessment …………………………………………………….. Fairly easy<\/li>\n
  3. Description of the\u00a0failure ………………………………………………. Fairly easy<\/li>\n
  4. Survey and documentation of damage …………………………… Fairly difficult<\/li>\n
  5. Determination of how the structure was built …………………. Easy to difficult<\/li>\n
  6. Determination of site conditions ……………………………………. Very difficult<\/li>\n
  7. Laboratory investigations …………………………………………… Very difficult<\/li>\n
  8. Research …………………………………………………………………….Difficult<\/li>\n
  9. Follow-up investigations ………………………………………………. Impossible<\/li>\n
  10. Data analysis and formulation of opinion …………………………. Very difficult<\/li>\n
  11. Report ……………………………………………………………………… Difficult<\/li>\n<\/ol>\n

    Add to this difficulty of estimating\u00a0the\u00a0costs of a forensic\u00a0engineering investigation,\u00a0the difficulty\u00a0of estimating the costs of the role of the expert\u00a0in the different stages\u00a0of the civil\u00a0litigation process.\u00a0 This\u00a0compounds the problem\u00a0further for counsel and the expert.<\/p>\n

    For example, how, at the start of an action,\u00a0do you estimate the cost of answering the questions posed\u00a0under Rule 55 (in Nova Scotia) not knowing how many there will be\u00a0nor their complexity?<\/p>\n

    I was asked in a case not too long\u00a0ago to answer\u00a046 numbered questions\u00a0submitted by opposing counsel.\u00a0\u00a0On counting, and including\u00a0important sub-questions, there were\u00a0actually 77\u00a0questions.\u00a0 The cost of answering these questions was approximately 13% of the total cost of my involvement as an expert in this litigation.<\/p>\n

    Another example, how do you estimate the cost of responding to rebuttal reports when you don’t know how many there will\u00a0be nor their complexity?<\/p>\n

    Another example still: Changed site conditions requiring additional or lenghtier investigation.\u00a0 I was investigating the adequacy of the underpinning of a structure one time.\u00a0 The documents indicated that the structure was underpinned in one way.\u00a0 My investigation found that it was underpinned in a markedly different way requiring more extensive field work and additional cost.<\/p>\n

    As well, reliable published information indicated that\u00a0groundwater would not be a problem in\u00a0an excavation dug\u00a0for the investigation of the underpinning.\u00a0 But the excavation flooded because of an unknown\u00a0feature of the inadequate underpinning that was not evident in the documents requiring\u00a0even lenghtier field work and additional cost.<\/p>\n

    The cost of any investigation below the ground surface is very difficult to estimate.<\/p>\n

    Forensic engineering investigation of structures above the ground surface\u00a0are also difficult.\u00a0 This is particularly the case for old structures, or for recent ones for which construction or as-built plans are not available which is often the case.\u00a0 It’s almost impossible to accurately estimate the cost of investigating major failures like the collapse of the roof at the Elliot Lake Mall earlier this year (Ref. 4).<\/p>\n

    Managing the problem<\/h1>\n

    Fortunately, this problem of estimating the cost of\u00a0forensic engineering investigation and its subsequent contribution to the cost of civil litigation\u00a0can be managed, at least a little. The approach is similar to that recommended for managing the cost of civil litigation, in general, quite apart from\u00a0the engineering\u00a0component.<\/p>\n

    Civil litigation manuals recommend informing the client of the estimated total costs at key\u00a0stages in the process – starting with the initial contact, and upgrading total costs at each stage (Ref. 2).\u00a0 A similar approach\u00a0can be taken in estimating the cost of forensic engineering investigation.\u00a0 The approach is not unlike the cost control procedures in the field of project management (Ref. 5).<\/p>\n

    The cost of\u00a0each step in the forensic engineering investigation can be estimated at the start, and total engineering costs calculated.\u00a0 Costs can then be upgraded\u00a0with revised estimates at key steps in the process.\u00a0\u00a0At each step in the process these updated engineering costs can be added to the costs accrued to date, including updated legal costs, to give an updated estimated total cost for the civil litigation.<\/p>\n

    The further along in the process the more accurate the cost estimates of subsequent steps will be, as well as the total cost.\u00a0 These cost estimates of subsequent steps benefit from data from the forensic investigation as it unfolds.<\/p>\n

    Counsel can use these updated total costs – legal plus engineering, at any stage in the civil litigation process; from early to late, to re-assess the merits of the action, and inform and discuss this with the client.<\/p>\n

    Expressing estimated total costs at each stage of the litigation as a percentage of the cost of the structure that has failed, or the expected damages that will be awarded, can be particularly enlightening with respect to the merits of continuing the action.<\/p>\n

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

      \n
    1. Kent, G. K., (Jimmy), P.Eng., LL.B., M.Sc. (Economics), Personal communication<\/em><\/li>\n
    2. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, <\/em>5th ed. 2004, <\/em>pg. 14, Thomson Carlswell<\/li>\n
    3. Steps in the Forensic Engineering Investigative Process,<\/em> posted October 26, 2012 in The Forensic Engineering Blog by Eric E. Jorden, M.Sc., P.Eng.<\/li>\n
    4. Cause of the Roof Collapse at Elliot Lake,<\/em> posted July 10, 2012 in The Forensic Engineering Blog by Eric E. Jorden, M.Sc., P.Eng.<\/em><\/li>\n
    5. Project Management Institute, A Guide to the Project Management Body of Knowledge, <\/em>Most recent edition, Newtown Square, Pennsylvania, USA<\/li>\n<\/ol>\n

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      The problem Civil litigation can be expensive, and it’s very difficult to predict the\u00a0costs\u00a0at the start.\u00a0 This is particularly\u00a0the case in estimating the costs for the later steps in\u00a0a forensic engineering investigation.\u00a0\u00a0Engineering investigation\u00a0can be\u00a0a\u00a0significant component of the cost\u00a0of civil litigation … 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":[1],"tags":[],"_links":{"self":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/185"}],"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=185"}],"version-history":[{"count":71,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/185\/revisions"}],"predecessor-version":[{"id":803,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/185\/revisions\/803"}],"wp:attachment":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/media?parent=185"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/categories?post=185"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/tags?post=185"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}