Civil litigation can be expensive, and it’s very difficult to\u00a0estimate the\u00a0costs\u00a0at the start.\u00a0 This is particularly\u00a0the case in estimating the costs for the later stages in\u00a0a forensic engineering investigation.<\/p>\n
Unfortunately, in spite of this difficulty, engineering investigation\u00a0can be\u00a0a\u00a0significant component of the cost\u00a0of civil litigation involving the built and natural environments.<\/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 counsel and the expert.<\/p>\n
Thoroughness in carrying out forensic engineering investigations is emphasized in guidelines for professional engineers (Ref. 1 to\u00a08) and implied in civil procedure rules requiring a statement of the reliability with which an opinion is held. (Ref. 9)\u00a0 You can’t have a reliable opinion without a thorough forensic engineering investigation.<\/p>\n
In spite of\u00a0this difficulty estimating costs, 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
As far as the expense of civil litigation is concerned and, understandably, the client 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, (Ref. 10)<\/p>\n
– “You’ve got to have a problem (a failure, inadequate performance, an accident),<\/p>\n
– “You’ve got to know you\u00a0have a problem (results of an investigation confirming a failure has occurred, and the cause of the failure or accident), and,<\/p>\n
– “You’ve got to have the money to fix the problem (the money to initiate a\u00a0legal\u00a0action claiming damages, or defending against a claim,\u00a0and the money to carry out the\u00a0various steps in the legal and forensic engineering processes through to trial if necessary)”.<\/p>\n
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. 11)<\/p>\n
The following is a subjective assessment of the difficulty estimating the costs of\u00a0the steps in\u00a0the forensic engineering investigative process.\u00a0 The more difficult the step the less accurate the estimate.\u00a0 The different\u00a0steps are described in a previous blog (Ref. 12<\/span>).<\/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, the documents identified that counsel will provide, and\u00a0some of the documents looked at (not necessarily studied).<\/p>\n The assessment is based on my experience in the forensic engineering investigation of failures in the built and natural environments, and fatalities and personal injury accidents, in Atlantic Canada,\u00a0northern Canada, the Caribbean,\u00a0and overseas in Australia and the U.K.<\/p>\n Difficulty estimating the cost of forensic engineering investigation in Atlantic Canada <\/strong>(<\/strong>The items in bold are the main steps in a forensic engineering investigation.\u00a0<\/strong> The other items\u00a0in regular are a\u00a0breakdown of the main steps).<\/p>\n (The\u00a0foregoing\u00a0assessment of difficulty\u00a0was taken from a posting to this blog site on July 15<\/span>, 2013 entitled, \u201cSteps in the forensic engineering investigative process with an Appendix on costs\u201d)<\/p>\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 of\u00a0the civil\u00a0litigation process – see Bibliography<\/strong> on the role of the expert in the process.\u00a0 This\u00a0compounds the problem\u00a0further for both 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, in this example, 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 – see foregoing paragraph, requiring\u00a0even lenghtier field work and additional cost – field costs increased by approximately 50% in this particular case.<\/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\u00a0in 2012.\u00a0(Ref. 13<\/span>)<\/p>\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\u00a0to that recommended for managing the cost of civil litigation, 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, as the different stages are reached. (Ref. 11)<\/span>\u00a0 These would be an\u00a0approximate range of legal\u00a0costs.<\/p>\n A similar approach\u00a0can be taken in estimating the cost of forensic engineering investigation.\u00a0 Again, it would have to be – in a manner similar\u00a0to law, an approximate range of engineering costs, and the\u00a0more in advance\u00a0you try to estimate costs the more\u00a0approximate the cost.\u00a0 The approach is not unlike the cost control procedures in the field of project management. (Ref. 14<\/span>)<\/p>\n The cost of\u00a0each step in the forensic engineering investigation can be estimated at the start – keeping in mind the difficulty estimating the cost of different steps (see foregoing tabulation), and total engineering costs calculated.\u00a0 Costs can then be upgraded\u00a0with revised estimates as each different\u00a0step\u00a0in the process is reached.<\/p>\n Then, at 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 in the legal\u00a0and forensic engineering investigations benefit from data from the\u00a0previous steps\u00a0as the legal and engineering processes unfold.<\/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 Counsel can express 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.\u00a0 This percentage\u00a0can be particularly enlightening with respect to the merits of continuing the action.<\/p>\n References<\/strong><\/p>\n Bibliography<\/strong><\/p>\n The problem Civil litigation can be expensive, and it’s very difficult to\u00a0estimate the\u00a0costs\u00a0at the start.\u00a0 This is particularly\u00a0the case in estimating the costs for the later stages in\u00a0a forensic engineering investigation. Unfortunately, in spite of this difficulty, engineering investigation\u00a0can be\u00a0a\u00a0significant … Continue reading \n
Managing the problem<\/h1>\n
\n
\n