Peer review\u00a0adds to\u00a0the cost of civil litigation, there’s no question about that.\u00a0 But an acceptable cost if the expert\u00a0carries out\u00a0a thorough forensic investigation in a complex case and prepares a well-written\u00a0report\u00a0– and there are no deficiencies in either.\u00a0 And if there are, a worthwhile cost finding this out early in the case.<\/p>\n
Still, an extra cost.\u00a0 I thought, what can be done about this extra cost?, as I was writing last week’s blog on the need for peer review.\u00a0\u00a0I realized there is an answer and there’s information\u00a0out there already. (Refs 1 to\u00a04.\u00a0Ref. 1 is a good read)<\/p>\n
The problem is that most failures and accidents are small, fortunately\u00a0– not catastrophic, and the potential damages are\u00a0also small.\u00a0 The cost to determine cause and to report findings can be\u00a0significant relevant to\u00a0the damages claimed by the injured party or the worth of the file to the law firm.\u00a0 The problem is not unique to Atlantic Canada.\u00a0 The\u00a0Advocates Society, Ontario\u00a0recognizes\u00a0‘affluent’ and ‘less affluent’ cases.<\/p>\n
Yet the justice system needs the technical issues investigated and explained regardless the size of the case – sometimes there is no case until these issues are investigated.\u00a0 And forensic engineers must\u00a0do the same thorough investigation and write the same exacting report, also regardless.<\/p>\n
Judicious selection of how an expert is used in all cases but particularly in the smaller, less affluent cases\u00a0is the\u00a0answer.<\/p>\n
In the past, experts have been retained in one of two ways:<\/p>\n
Today and in future – almost without exception, experts will\u00a0serve as consulting experts in the resolution of disputes rather than testifying experts.\u00a0 This is because\u00a0of changes in\u00a0civil procedure rules governing experts.\u00a0 These are designed to expedite resolution of disputes and\u00a0reduce the number of cases going to trial.<\/p>\n
The consulting\u00a0expert<\/em> will submit one\u00a0or the other of two basic reports according to Counsel’s instruction:<\/p>\n The oral<\/em> report\u00a0can be presented in one of two ways:<\/p>\n (A factual<\/em> report gathers together all the data\u00a0from the\u00a0office, field, and laboratory investigations and submits this to\u00a0Counsel – without analysis and interpretation)<\/p>\n (An interpretative<\/em> report analyses and interprets\u00a0the data and draws conclusions on the\u00a0cause of the failure or accident.\u00a0\u00a0It\u00a0can be quite comprehensive, particularly in a\u00a0complex case)<\/p>\n (The cost of\u00a0a factual\u00a0report is\u00a0easier to predict and control.\u00a0 The cost of\u00a0an interpretative report\u00a0is difficult to predict and control.\u00a0 Sometimes very difficult because you don’t know what you’re going to find\u00a0at the site of\u00a0an\u00a0engineering failure or\u00a0accident\u00a0if you follow the evidence, (Ref. 4))<\/p>\n A factual oral consulting report<\/em> to retaining Counsel could be quite inexpensive compared to a written report\u00a0to the\u00a0requirements of civil rules.\u00a0 A peer review<\/em> of the factual oral report could\u00a0also be relatively inexpensive compared to\u00a0a review\u00a0of\u00a0a written report.\u00a0 The peer might discuss the facts with\u00a0the expert – orally, and the investigation supporting these.<\/p>\n Similarly, an interpretative oral consulting report<\/em> could be relatively inexpensive with or without a peer review<\/em> compared to a written report.\u00a0 More expensive, of course, because of the interpretative element, but still less than a written report.<\/p>\n The\u00a0written<\/em> report\u00a0can also be presented in one of two ways:<\/p>\n The relative costs of these two ways of writing a report on the forensic engineering investigation are apparent – more for interpretative<\/em> and\u00a0less for factual<\/em>, and more or less still with or without a peer review<\/em>.<\/p>\n So, the cost increases from least – a factual oral consulting report<\/em> without<\/span> peer review, to most – an interpretative written consulting report<\/em> with<\/span> peer review.<\/p>\n How Counsel retains an expert – there are 8 different ways; count them – is a key to reducing the costs in less affluent cases while seriously considering peer review.\u00a0 Retaining an expert at the beginning of a case is another key.\u00a0 I did\u00a0not\u00a0include testifying expert because this role is less likely in future.<\/p>\n ***<\/p>\n It’s important to remember,\u00a0“An expert’s report is a critical, make-or-break document.<\/strong>\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. 5)\u00a0 And, I might add,\u00a0can\u00a0turn questioning and rebutting the report\u00a0before discovery\u00a0into a cakewalk, a tsunami, if the report is distributed to all parties.<\/p>\n References<\/strong><\/p>\n <\/p>\n \u00a0<\/b><\/p>\n","protected":false},"excerpt":{"rendered":" Peer review\u00a0adds to\u00a0the cost of civil litigation, there’s no question about that.\u00a0 But an acceptable cost if the expert\u00a0carries out\u00a0a thorough forensic investigation in a complex case and prepares a well-written\u00a0report\u00a0– and there are no deficiencies in either.\u00a0 And if … Continue reading \n
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