What comes first in a case with technical issues?\u00a0 Filing a claim for damages or conferring with an expert?\u00a0 Identifying the parties responsible or conferring with an expert. Discovering the parties involved or conferring with an expert?<\/p>\n
I’ve been retained as an expert before a claim has been filed and in\u00a0other cases many years afterwards, and at all stages in between.\u00a0 In one case, 11 years after a claim was initiated – a claim that was subsequently resolved four months after a simple forensic engineering investigation was carried out.\u00a0 Why not\u00a0years earlier and save a lot of money and aggravation?<\/p>\n
I’ve been retained in\u00a0a number of\u00a0cases,\u00a0either a few weeks\u00a0before discovery, a few weeks\u00a0before ADR,\u00a0or\u00a0a few weeks\u00a0before\u00a0trial.- long after\u00a0the die has been cast\u00a0with respect to case\u00a0strategy.\u00a0 And\u00a0without the benefit of informed\u00a0comment on the technical issues.\u00a0 I was consulted in one case a few weeks before trial, and the claimant did not even know the\u00a0precise location of the structure alleged to have caused the damage – on one side of a hill or the other in a case where location was important!<\/p>\n
It’s easy for me to imagine that some claims have been\u00a0filed by counsel without benefit of some initial forensic investigation and comment by a technical expert – and the wrong parties named in the action<\/strong>.<\/p>\n I’m sure similar comments could be made\u00a0and examples given about early and late involvement of a technical expert in defending against a claim.<\/p>\n Is there any question about the answer to the question, “What comes first in civil litigation …?”\u00a0 Or should at least come close to being first.<\/p>\n I’ve also, wisely, been consulted by the owner of a structure that failed somewhat\u00a0 catastrophically, after the owner had retained counsel, and after Notice of Claim had been filed – but, fortuitously, before counsel developed case strategy.\u00a0 A close call that one.<\/p>\n I’ve also been retained very early by property owners with a problem, saw\u00a0that they\u00a0should confer with a civil litigation lawyer, and been able to refer them to suitably qualified\u00a0people.<\/p>\n “Expert witnesses play an important role in modern litigation.\u00a0 The choice of an expert may have a crucial bearing on the outcome of a case.\u00a0 An expert can make or break\u00a0a case and should be chosen carefully and early<\/strong>.”\u00a0\u00a0(Ref. 1)<\/p>\n (David Stockwood’s practical handbook\u00a0on civil litigation\u00a0went to five editions – the latest in 2004,\u00a0suggesting he was onto something with his guidelines for civil litigation lawyers.\u00a0 I’ll bet\u00a0he was planning a sixth edition when he passed away prematurely)<\/p>\n Technical experts should be involved early if for no other reason so they don’t have to play ‘catch-up’ later, which can be expensive.\u00a0 Also,\u00a0so counsel is not caught out on a limb, which could be embarrassing.\u00a0\u00a0Involved possibly\u00a0as early as counsel’s initial assessment as to whether or not to take a case, for certain before a statement of claim or defence is filed.\u00a0 (Ref. 2 to 7)<\/p>\n Assessing the merits of a claim\u00a0should\u00a0involve early input from an expert\u00a0when there is the slightest\u00a0chance that technical issues are involved along with the legal issues.\u00a0 Experts know about technical issues.<\/p>\n For example, a forensic engineering investigation:<\/p>\n Knowing cause, and the strength of the technical evidence and\u00a0the importance of the technical issues – all determined for the most part by the expert, counsel can reliably assess the merits of a case and whether or not to proceed.<\/p>\n Most\u00a0important in an assessment of merit is knowing\u00a0who is responsible for the damages\u00a0and who to name in an action\u00a0and this frequently\u00a0derives from\u00a0knowing the cause of the failure or accident.<\/p>\n And no\u00a0assessment of the merit of a claim involving legal and\u00a0technical issues would\u00a0be complete – would in fact be lacking terribly, without an initial assessment of legal and forensic engineering investigative costs.\u00a0 (Ref. 1, 3, and 8 to 10)<\/p>\n Who better qualified to assess technical costs than\u00a0the technical expert?\u00a0 And, wisely, to be given the opportunity to do this as early as possible in the action.<\/p>\n For certain, there are situations where a claim or defense\u00a0might be filed before a technical expert is consulted – sometimes the technical issues may\u00a0seem minor,\u00a0but not years after the fact.<\/p>\n It seems prudent for counsel\u00a0to err on the side of caution and retain an expert early, like the legal handbooks and forensic engineering guidelines recommend.\u00a0 (Ref.\u00a01, and\u00a011 to 13)\u00a0 It’s easier to defend (to the client)\u00a0having been prudent than not.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" What comes first in a case with technical issues?\u00a0 Filing a claim for damages or conferring with an expert?\u00a0 Identifying the parties responsible or conferring with an expert. Discovering the parties involved or conferring with an expert? I’ve been retained … Continue reading \n
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