The way in which\u00a0experts are used in civil litigation is changing, at least the main emphasis of their role in the civil litigation process.\u00a0\u00a0And these changes are good for counsel and the justice system.<\/p>\n
The role of experts in\u00a0the civil litigation process\u00a0has been identified\u00a0in detail in previous postings.\u00a0(Ref. 1)<\/p>\n
Emphasis today<\/strong><\/span><\/p>\n The emphasis today is on (1) the presentation of\u00a0findings in oral and written reports\u00a0after a forensic\u00a0investigation is complete, rather than on testimony in discovery or at trial.\u00a0 And I believe there will be increased emphasis\u00a0on (2) oral reports – certainly for\u00a0smaller cases, rather\u00a0than on written reports.<\/p>\n How experts can be retained <\/strong><\/span><\/p>\n In Canada and the U.S., experts\u00a0can be\u00a0retained in one of two basic ways:<\/p>\n Comments by some lawyers I have worked with\u00a0suggest these two\u00a0types of\u00a0arrangement\u00a0are understood in eastern\u00a0Canada.<\/p>\n Based on my experience in this part of Canada, these two methods of\u00a0retaining an expert\u00a0can be broken down further:<\/p>\n The break down reflects and accommodates the changes taking place.<\/p>\n Why the changes in emphasis are good<\/strong><\/span><\/p>\n These changes are good for counsel and the justice system, and the cost effective settling of disputes.\u00a0 This is\u00a0because:<\/p>\n What’s causing these changes?<\/strong><\/span><\/p>\n These changes in how experts are used is being driven by:<\/p>\n Comments on how experts can be retained<\/strong><\/span><\/p>\n Following are a few comments on how experts\u00a0are being\u00a0retained today for the good of the justice system:<\/p>\n 1. Consulting expert<\/strong><\/p>\n Counsel might initially retain an expert for a general discussion of the case and the technical issues as initially perceived by each.<\/p>\n Such a discussion could be quite brief and based on counsel’s description of the incident.\u00a0 Or\u00a0of greater length\u00a0depending on\u00a0where\u00a0counsel is at in the civil litigation process.\u00a0(Ref. 1)<\/p>\n Lengthier discussion would be based on some investigation by an expert.\u00a0 The investigative tasks would depend to some extent on the role assigned the expert.\u00a0(Ref. 1)\u00a0 At the very least, an expert\u00a0would read\u00a0a few\u00a0documents and visit the site.<\/p>\n The very early\u00a0emphasis in such discussions should be\u00a0to provide\u00a0counsel with technical information to\u00a0help him or her\u00a0assess\u00a0whether or not to take the case.\u00a0(Ref. 2)<\/p>\n Also, some emphasis on the expert’s early thought on the direction a forensic investigation might lead, with respect to the cause of a failure or accident.\u00a0 Sometimes we\u00a0have an idea\u00a0early on – a hypothesis as to cause, that would be checked later during a forensic\u00a0investigation.<\/p>\n It’s often possible in these discussions to outline the approximate nature of a forensic investigation of the problem.<\/p>\n Very approximate costs to investigate the cause of a failure or accident\u00a0might be suggested based on the expert’s experience with other cases.\u00a0 At the very least, advice could be given on whether it’s likely to\u00a0be an\u00a0expensive or an inexpensive investigation or somewhere in between.<\/p>\n If counsel takes the case, the expert could provide some guidance on preparing a statement of claim or defense.\u00a0(Ref. 1)\u00a0 This involvement is important.\u00a0 I’ve seen cases where, based on the technical issues, the wrong party was named\u00a0in one instance and\u00a0responsible parties were not named in two others.\u00a0 I was retained some time after these\u00a0actions were started\u00a0–\u00a0years after in one case.<\/p>\n The next two ways of retaining an expert\u00a0must be evaluated carefully, particularly, in going from an oral report to a written report.\u00a0 “An expert’s report is a critical, make-or-break document.<\/strong><\/span>\u00a0 On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 3)\u00a0 And, I might add,\u00a0turn rebutting the report\u00a0before discovery\u00a0into a cakewalk.<\/p>\n An argument can be made, and serious consideration given, for\u00a0peer review of a written report.\u00a0(Ref. 4)\u00a0 This is standard practice in\u00a0some engineering and scientific fields.<\/p>\n 2. Investigating expert: Oral report<\/strong><\/p>\n Based on the results of the initial discussions, counsel may instruct a consulting expert to begin investigating the cause of the failure or accident.\u00a0 To begin the forensic engineering investigative process.\u00a0(Ref. 1)<\/p>\n The objective\u00a0would be to gather some data\u00a0<\/em>to support an oral report of findings to counsel.<\/p>\n An oral report allows for additional discussion of the case.\u00a0 It also gives counsel data on which to base a decision to carry out a complete forensic investigation.\u00a0 And some data\u00a0on which to base a decision to commission a written report.<\/p>\n There is emphasis at this stage on some data<\/em>.\u00a0 This is because the expert would report to counsel as soon as relevant and meaningful data had been collected.\u00a0 He would\u00a0not necessarily wait until\u00a0the end of a complete forensic investigation.<\/p>\n The expert’s work at this point is very likely to be characterized by preliminary investigative work.\u00a0 Also possibly by\u00a0a factual reporting of data with little or no interpretative reporting.\u00a0 This type of reporting is used often enough in some fields, e.g., geotechnical engineering.<\/p>\n Some of the necessary preliminary work might be identified in discussion during the Consulting Expert stage.\u00a0 For certain, the expert would recognize when he had some useful data\u00a0justifying interrupting the investigation and reporting to counsel.<\/p>\n But it’s also possible the investigation will have been completed before\u00a0significant data became available.\u00a0 Or this was considered the most expedient way – to complete the forensic investigation and gather all data before reporting.<\/p>\n Even\u00a0if the investigation was completed, only an oral report would be given at this stage as required by counsel.<\/p>\n The oral report,\u00a0in addition to facilitating additional discussion of the case, also allows counsel to assess if it’s in the client’s interest to incur the cost of completing the forensic investigation and preparing a written report.<\/p>\n 3. Investigating expert: Written report<\/strong><\/p>\n Counsel could retain the consultant to\u00a0prepare a\u00a0written report on the forensic investigation\u00a0according to the requirements of civil procedure rules governing experts.\u00a0 The report would describe the forensic investigation in detail, the data gathered, the analysis carried out, the conclusions and the reasoning leading to these, and the opinion on cause stated.<\/p>\n The forensic investigation\u00a0would be completed before\u00a0preparing a written report if this was not done for the oral report stage.<\/p>\n The report would likely be distributed to all parties to the action.\u00a0 This would in turn generate a number of questions\u00a0on the report by the different parties to be answered by the expert.\u00a0 It could also result in a rebuttal report which might need to be responded to by the expert as well.<\/p>\n 4. Testifying expert<\/strong><\/p>\n In the unlikely event that the action goes to discovery and trial a consulting expert\u00a0might be required to testify on his investigation and subsequently be cross-examined on his testimony and report.<\/p>\n In some areas of Canada and the U.S., a testifying expert is retained\u00a0in addition to\u00a0an investigating expert.\u00a0 The testifying expert would present the investigating expert’s work and findings at discovery and trial.\u00a0 Testifying is a skill some\u00a0investigating\u00a0experts have\u00a0and some don`t, hence the need.\u00a0 I can imagine this would be\u00a0for larger cases.\u00a0\u00a0Forensic engineering investigation in eastern Canada is characterized by many smaller cases.<\/p>\n 5. Consulting expert to the judge<\/strong><\/p>\n The\u00a0judge might retain an expert independent of counsel.\u00a0 This is done occasionally in eastern Canada.\u00a0\u00a0I understand it`s quite prevalent in the U.K.\u00a0 I believe this is likely to occur less frequently with fewer cases going to trial.\u00a0 Also\u00a0because of the change in emphasis in how experts are retained.\u00a0 And the fact that particularly well-written expert reports\u00a0will derive from\u00a0the changes.<\/p>\n References<\/strong><\/p>\n 1. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts<\/em>. Posted November 20, 2013 http:\/\/www.ericjorden.com\/blog\/2013\/11\/20\/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts\/<\/a><\/p>\n 2. The role of a\u00a0professional engineer\u00a0in counsel’s decision to take a case.<\/em>\u00a0Posted June 26, 2012 http:\/\/www.ericjorden.com\/blog\/2012\/06\/26\/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case\/<\/a><\/p>\n 3. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an\u00a0expert witness report<\/em>,\u00a0 SEAK Inc., Falmouth, Mass. 2014<\/p>\n 4. Peer review in forensic engineering and civil litigation.<\/em> Posted November 26, 2013 http:\/\/www.ericjorden.com\/blog\/2013\/11\/26\/peer-review-in-forensic-engineering-and-civil-litigation\/<\/a><\/p>\n","protected":false},"excerpt":{"rendered":" The way in which\u00a0experts are used in civil litigation is changing, at least the main emphasis of their role in the civil litigation process.\u00a0\u00a0And these changes are good for counsel and the justice system. The role of experts in\u00a0the civil … Continue reading \n
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