{"id":2765,"date":"2014-05-21T13:02:36","date_gmt":"2014-05-21T13:02:36","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=2765"},"modified":"2014-05-21T13:02:36","modified_gmt":"2014-05-21T13:02:36","slug":"the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case-update","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2014\/05\/21\/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case-update\/","title":{"rendered":"The role of a professional engineer in counsel&#8217;s decision to take a case &#8211; Update"},"content":{"rendered":"<p><span style=\"color: #3366ff;\"><strong>Update and re-issue\u00a0of the role of a professional engineer &#8230;.<\/strong><\/span><\/p>\n<p>I\u00a0decided to update and re-issue this article after recently blogging on the changes taking place in civil litigation.\u00a0 Also\u00a0after blogging on the importance of well-written expert reports.\u00a0(Ref. 1, 2, 3)\u00a0\u00a0The article\u00a0first appeared\u00a0on June 26, 2012.<\/p>\n<p>These changes are resulting in greatly increased emphasis on the expert&#8217;s report.\u00a0 If well-written, the report\u00a0will result in the technical evidence being presented and responded to quickly and clearly by all parties.\u00a0 The\u00a0dispute will be\u00a0resolved\u00a0sooner.<\/p>\n<p>These changes\u00a0will also encourage\u00a0retaining an expert as early as possible.\u00a0 Because, of course,\u00a0you can`t have an expert report\u00a0without\u00a0a forensic\u00a0investigation, and you can`t have an investigation until you have an\u00a0expert.\u00a0 The sooner an expert is consulted and an investigation carried out &#8211;\u00a0if needed, the sooner the dispute can be resolved.<\/p>\n<p>Some cases\u00a0may be over before they begin.\u00a0 If an expert is consulted\u00a0when counsel\u00a0is deciding on whether or not to take a case,\u00a0the expert&#8217;s comments\u00a0may show that the case is technically weak or too\u00a0costly to investigate thoroughly.<\/p>\n<p>To summarize, I&#8217;m updating this blog because of the following effects that changes in\u00a0civil litigation\u00a0are having:<\/p>\n<ul>\n<li>Increased emphasis on the expert&#8217;s report<\/li>\n<li>Earlier retention of\u00a0an expert<\/li>\n<\/ul>\n<p><span style=\"color: #3366ff;\"><strong>The role of a professional engineer &#8230;<\/strong><\/span><\/p>\n<p>Civil litigation\u00a0tentatively begins when\u00a0counsel meets with a potential client.\u00a0 The purpose is to gather information to help him or her assess the merits of the case and decide if he\u00a0should take it.<\/p>\n<p>A professional engineer could have a role in this meeting, or in consultation shortly afterwards.\u00a0 This is\u00a0particularly the case if the legal and technical issues are likely to be complex requiring extensive engineering investigation to support a reliable opinion.<\/p>\n<p>I&#8217;ve seen cases that should never\u00a0have gone forward.\u00a0\u00a0In some cases\u00a0because of a lack of technical merit.\u00a0 In others\u00a0because of the client&#8217;s\u00a0limited financial resources to\u00a0bear the\u00a0cost of the forensic engineering investigation necessary to determine the cause of the failure or accident.\u00a0 These would be costs\u00a0learned about after a claim was filed &#8211; and only after a\u00a0professional engineer\u00a0was retained to investigate the technical issues.<\/p>\n<p>During the meeting, counsel obtains information from:<\/p>\n<ul>\n<li>The client&#8217;s description of the problem and the damages he believes\u00a0he has incurred,<\/li>\n<li>Documents provided by the client,<\/li>\n<li>Knowledge of witnesses,<\/li>\n<li>Answers to questions raised by the lawyer,<\/li>\n<li>The lawyer&#8217;s past experience of similar matters, and,<\/li>\n<li>Comments by an expert on the technical issues.<\/li>\n<\/ul>\n<p>One of several important considerations covered by the meeting and the lawyer\u2019s review of the facts is the need for an expert on the case.\u00a0 An expert can make or break a case and if thought to be necessary should be chosen carefully and retained early (Ref. 4).\u00a0 Even if only retained briefly to\u00a0confirm counsel&#8217;s assessment of technical merit, in the event counsel decides not to take the case.<\/p>\n<p>If a professional engineer is not included in the meeting, then\u00a0counsel might confer with one later during his review of the facts prior to making a decision about the case.\u00a0 The engineer would, of course, review the information from the meeting, particularly the documents, and identify the technical issues prior to advising the lawyer.<\/p>\n<p>The engineer can also provide preliminary comment on the forensic engineering investigation needed to address the technical issues and to formulate an opinion on the cause giving rise to them.\u00a0 The engineer would outline some of the tasks that would need to be carried out during an investigation and the time\u00a0involved \u2013 factors that can have a significant impact on the cost of litigation.<\/p>\n<p>If the technical issues are complex \u2013 and the engineer can certainly help determine that, the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client\u2019s litigation costs.\u00a0 The client\u2019s ability to bear these costs is important information in counsel\u2019s decision on taking the case.\u00a0 An engineer can have a role in assisting counsel make that decision.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>A professional\u00a0engineer&#8217;s tasks during counsel&#8217;s first meeting with the client<\/strong><\/span><\/p>\n<p>Following are 18 tasks that a professional engineer &#8211; or any expert for that matter, could carry out during or shortly after counsel&#8217;s first meeting with a potential client.\u00a0 Completing some or all of these would assist counsel&#8217;s decision about taking the case:<\/p>\n<ol>\n<li><em>Attend and audit the meeting for technical issues, or meet with counsel shortly afterwards<\/em><\/li>\n<li><em>Review client\u2019s descriptions of the problem and the reasons for claiming damages<\/em><\/li>\n<li><em>Read available documents<\/em><\/li>\n<li><em>Review witness\u2019 statements as soon as taken by counsel <\/em><\/li>\n<li><em>Begin identification of potential technical issues <\/em><\/li>\n<li><em>Begin identification of technical documents counsel\u00a0must seek<\/em><\/li>\n<li><em>Familiarize counsel on the typical stages and tasks in a forensic engineering investigation, the\u00a0possibility of unexpected follow-up investigations, the fact that investigations can sometimes lead in unexpected directions, the time required, and the difficulty estimating\u00a0costs (See a bundle of blogs, Ref. 5)\u00a0 <\/em><\/li>\n<li><em>Outline a preliminary engineering investigation and the major tasks involved<\/em><\/li>\n<li><em>Speculate on follow-up investigations <\/em><\/li>\n<li><em>Identify specialists that may be required<\/em><\/li>\n<li><em>Speculate on the\u00a0order of magnitude of forensic investigative costs <\/em><\/li>\n<li><em>Identify physical evidence, tangible exhibits and possible demonstrative evidence<\/em><\/li>\n<li><em>B<\/em><em>rief counsel on parties that might be involved in the potential litigation and their relationship to the technical issues<\/em><\/li>\n<li><em>Provide information that would facilitate early settlement <\/em><\/li>\n<li><em>Note unfavourable evidence for the potential client\u2019s claim<\/em><\/li>\n<li><em>Remind counsel that only one side of the story is known.\u00a0 The opponent\u2019s story and documents could give rise to a small shift in the technical facts and alter the complexion of the claim<\/em><\/li>\n<li><em>Tentatively assess the technical merits of the case with respect to the potential parties<\/em><\/li>\n<li><em>If counsel decides to take the case, and position letters are appropriate, ensure that demand letters, and responses, are based only on well-established technical\u00a0facts and data as known at the time<\/em><\/li>\n<\/ol>\n<p><strong>References<\/strong><\/p>\n<ol>\n<li>How experts are\u00a0retained in civil litigation is changing &#8211; and the changes are good for counsel and the justice system. Posted May 1, 2014 <a href=\"http:\/\/www.ericjorden.com\/blog\/2014\/05\/01\/how-experts-are-retained-in-civil-litigation-is-changing-and-the-changes-are-good-for-counsel-and-the-justice-system\/\">http:\/\/www.ericjorden.com\/blog\/2014\/05\/01\/how-experts-are-retained-in-civil-litigation-is-changing-and-the-changes-are-good-for-counsel-and-the-justice-system\/<\/a><\/li>\n<li>Guidelines for writing an expert witness report. Posted May 17, 2014 <a href=\"http:\/\/www.ericjorden.com\/blog\/2014\/05\/17\/how-to-write-an-expert-witness-report\/\">http:\/\/www.ericjorden.com\/blog\/2014\/05\/17\/how-to-write-an-expert-witness-report\/<\/a><\/li>\n<li>The role of a professional engineer in counsel&#8217;s decision to take a case. Posted June 26, 2012<\/li>\n<li>Stockwood, Q.C., David, <em>Civil Litigation, A Practical Handbook<\/em>, 5th ed, 2004, Thompson Carswell<\/li>\n<li>A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013 <a href=\"http:\/\/www.ericjorden.com\/blog\/2013\/11\/20\/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts\/\">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><\/li>\n<\/ol>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Update and re-issue\u00a0of the role of a professional engineer &#8230;. I\u00a0decided to update and re-issue this article after recently blogging on the changes taking place in civil litigation.\u00a0 Also\u00a0after blogging on the importance of well-written expert reports.\u00a0(Ref. 1, 2, 3)\u00a0\u00a0The &hellip; <a href=\"http:\/\/www.ericjorden.com\/blog\/2014\/05\/21\/the-role-of-a-professional-engineer-in-counsels-decision-to-take-a-case-update\/\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[16,17],"tags":[],"_links":{"self":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2765"}],"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=2765"}],"version-history":[{"count":21,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2765\/revisions"}],"predecessor-version":[{"id":2786,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2765\/revisions\/2786"}],"wp:attachment":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/media?parent=2765"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/categories?post=2765"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/tags?post=2765"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}