{"id":4931,"date":"2016-07-22T12:32:31","date_gmt":"2016-07-22T15:32:31","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=4931"},"modified":"2016-07-22T12:32:31","modified_gmt":"2016-07-22T15:32:31","slug":"why-do-i-blog-on-forensic-engineering-investigation","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2016\/07\/22\/why-do-i-blog-on-forensic-engineering-investigation\/","title":{"rendered":"Why do I blog on forensic engineering investigation?"},"content":{"rendered":"

I blog because I want you to know about an interesting field of engineering that I enjoy and that contributes to the resolution of disputes<\/em> –\u00a0a nice way to\u00a0practice<\/em>.\u00a0 Also, an engineering practice\u00a0that is relevant to the field of practice of many of you.<\/p>\n

To some extent,\u00a0ours is a litigious society and one with a lot of insurance claims involving engineering failure and personal injury.\u00a0 Inherent in this situation are technical obligations for counsel and their need to know something about forensic investigation.\u00a0 Some cases don’t go forward or claims settle until the technical issues are identified and investigated by an expert.<\/p>\n

In many cases, an important duty for counsel is ensuring the technical evidence is properly understood by the court or tribunal.\u00a0(See the Comment<\/strong> on Reason #1<\/strong><\/span> below, also Ref. 1)\u00a0There are other reasons I blog – I’ve identified and listed eight (8) below, but this is an important one.<\/p>\n

I identified the following\u00a0reasons by\u00a0reviewing\u00a0the 134 blogs that I have posted in the last four years.<\/p>\n

Why do I blog?<\/strong><\/p>\n

Reason #1<\/strong> I want t<\/span><\/span>o\u00a0describe the nature and methods of forensic investigation\u00a0for counsel and insurance claim consultants.\u00a0 Including\u00a0some of the newer methods like a low flying drone fitted with a camera to photograph the scene of\u00a0an engineering\u00a0failure or personal injury.<\/p>\n

(An aerial\u00a0photograph taken from a low flying drone was key to assessing the pattern of drainage\u00a0at a contaminated\u00a0site.\u00a0 I was surprised at what I saw)<\/p>\n

I want to describe how we carry out independent investigations, observe, analyse, draw conclusions and formulate objective opinions.\u00a0 Then\u00a0present quality and\u00a0reliable evidence to counsel and the court or tribunal in simple,\u00a0non-technical English.<\/p>\n

Comment<\/strong>: Why is this a particularly good reason?\u00a0 I’ve learned that counsel has obligations with respect\u00a0to the expert’s report or affidavit.\u00a0(Ref. 1)<\/p>\n

In many cases, counsel must learn about the technical subject to which the evidence relates in order to identify the relevant technical issues.\u00a0 He or she has an important duty in\u00a0the presentation of technical evidence\u00a0to ensure it’s properly understood\u00a0by the court or tribunal. (Ref. 1)<\/p>\n

Counsel\u00a0also has an obligation to monitor the cost of civil litigation in view of the often small to medium size-sized cases in Atlantic Canada – and their sometimes less affluent nature.\u00a0 This is because the\u00a0extent of an all-stages forensic investigation is often similar regardless of whether the\u00a0engineering failure or personal injury\u00a0is small, medium-sized or catastrophic.<\/p>\n

Costs can be controlled\u00a0to some extent\u00a0by how an expert is retained and how early.\u00a0 There are at least eight (8) different ways.\u00a0(Ref. 2)<\/p>\n

It’s difficult for counsel to carry out their obligations\u00a0to the court or tribunal and also monitor costs without\u00a0having some understanding of how engineers do their work.<\/p>\n

Reason #2<\/strong><\/span> I also\u00a0want to help readers understand why a forensic engineering investigation\u00a0can be\u00a0expensive.<\/p>\n

Comment:\u00a0<\/strong>The expense\u00a0has everything to do with carrying\u00a0out a\u00a0thorough investigation and rendering a\u00a0reliable opinion, as expected of the expert by the court or tribunal.\u00a0 For certain,\u00a0following\u00a0routine investigative procedures in an effort to\u00a0ensure no stone is left unturned.\u00a0(Ref. 3)<\/p>\n

As well, we don’t know when we start what we’re going to find that we\u00a0must\u00a0investigate.\u00a0 Every failure and accident is different.\u00a0(Refs 4, 5 and 6)\u00a0 And then there are the surprise, follow-up investigations.\u00a0 Not enough time and money is no excuse if we miss something.<\/p>\n

Counsel can assist – with some understanding of forensic work –\u00a0by\u00a0identifying and selecting the relevant technical issues early in the case with the assistance of the expert.\u00a0 Then having the expert focus on these in an\u00a0effort to control costs.<\/p>\n

Reason #3<\/strong> <\/span>To help counsel understand the importance of retaining an expert early in all cases, affluent and less affluent alike, the different ways an expert can\u00a0be retained and the importance of monitoring costs – starting when the merits of a potential case are being assessed.\u00a0(Refs 7, 8)<\/span><\/p>\n

Comment: <\/strong>At present, experts are too often retained months or years after a case is taken and after the cost of the forensic investigation has been estimated by other than the expert.\u00a0 This contrary to the advice of some of the most senior members of the legal profession.\u00a0(Ref. 9)<\/p>\n

For example<\/span>, I was retained by counsel\u00a011 years after a personal injury.\u00a0\u00a0I visually examined the site and\u00a0reported on what could have been done to prevent the accident.\u00a0 The case settled four (4) months later.\u00a0 To give counsel credit, he carefully\u00a0instructed me on the technical issues to investigate which reduced the cost in this case.\u00a0 This type of instruction doesn’t happen very often.<\/p>\n

Reason #4<\/strong> <\/span>To help the justice system understand what they should be getting for the money spent on forensic investigation: That is, thorough<\/em> investigations to\u00a0ensure the quality of the evidence and the reliability of an expert’s opinion, and\u00a0well written<\/em> reports.<\/p>\n

Comment:<\/strong> Rules governing experts have placed greater emphasis on\u00a0the investigation and the\u00a0expert’s report,\u00a0to encourage the settlement of cases without going to discovery and trial.\u00a0 There are excellent guidelines on forensic investigation and\u00a0also on writing expert’s reports.\u00a0 And excellent books, in general, on writing well.\u00a0 I’m not sure these are being consulted to the extent they should.<\/p>\n

Reason #5<\/strong>\u00a0I want to <\/span><\/span>understand\u00a0the forensic engineering\u00a0field\u00a0better myself, to learn by writing the blogs and “thinking on paper” – particularly, on how addressing the technical issues supports the resolution of disputes.<\/p>\n

Comment:<\/strong> Like all of us, I’m learning all the time.\u00a0 Most recently about the value of low cost, initial hypotheses on the cause of problems based on very limited data.\u00a0 This\u00a0task could save counsel money – as long as it’s remembered\u00a0they are\u00a0initial<\/em> hypotheses.<\/p>\n

For example<\/span>,\u00a0I hypothesized with considerable confidence on the cause of a catastrophic bridge failure during construction (Edmonton) –\u00a0based on study of photographs in\u00a0a newspaper.\u00a0 In another, the cause of the sloping, sagging floors in a multi-story building (Halifax) –\u00a0based on a visual examination of the floors and knowing how buildings are constructed.<\/p>\n

Cases are also\u00a0being settled today based on simple verbal reports after the technical issues are addressed.\u00a0 In some cases not even a verbal report because counsel is on site and sees the results of the expert’s investigation unfold before him.<\/p>\n

Reason #6<\/strong><\/span> I want to increase my understanding of the civil litigation process.<\/p>\n

Comment:<\/strong> Experts have a\u00a0duty\u00a0to acquire some understanding of\u00a0the process.\u00a0 The justice system expects this of us.<\/p>\n

I researched and posted 10 blogs on the role of a professional engineer in the civil litigation process for the benefit of\u00a0counsel and their\u00a0clients.\u00a0(Ref. 8) I learned a lot during this research.<\/p>\n

It’s also been an eye-opener to learn of the dichotomy between the claimant’s right to\u00a0justice and the expense of getting it.\u00a0 Associated is the conflicting interests of the\u00a0different\u00a0parties\u00a0to the process.<\/p>\n

For example<\/span>, the court, while\u00a0encouraging counsel to expedite cases and\u00a0control costs, wants quality evidence and a reliable opinion, which takes time and money.\u00a0 The expert needs to do thorough investigative work to get this evidence.\u00a0 He expects to get paid according to his schedule of fees,\u00a0his level of expertise and the responsibility he bears.\u00a0 If the claimant has retained the expert on a fee basis, he doesn’t want to spend any more than necessary.\u00a0 If counsel has taken the case on a contingency basis and retained the expert, he wants to protect the worth of the file to his firm.\u00a0 Quite a mix of interests.<\/p>\n

Reason #7<\/strong><\/span> Because of a sense of obligation to my readers who have seen the blog for\u00a0four years and perhaps have come to expect it – to fill a void\u00a0that\u00a0was\u00a0there.<\/p>\n

Comment:<\/strong> Feed back suggests you do get something from my descriptions of the nature and methods of forensic engineering, and my comments on related matters.<\/p>\n

A senior lawyer in Atlantic Canada said, “I love that stuff..!!”.\u00a0 Another senior legal chap on the east coast commented, “…like reading them.”\u00a0 And an\u00a0insurance\u00a0claims consultant said, “I read every one”.\u00a0 It’s hard to beat testimonials like that.<\/p>\n

Two senior counsel helped me\u00a0with\u00a0two of the blogs on the role of professional engineers in the civil litigation process – critiqued them before their posting.\u00a0 One of these noted that experts are invaluable to civil litigation.<\/p>\n

A\u00a0fellow who blogs on business ethics, Dr. Chris MacDonald, Toronto, and has an international reputation in his field – he’s on a list of 100 influential business people that includes Barack Obama –\u00a0saw fit to advise his twitter followers of my blog.<\/p>\n

A monthly periodical on engineering construction – with an international\u00a0distribution of 10,000, sought\u00a0permission to publish one of my\u00a0blogs.\u00a0 The issue had\u00a0a forensic engineering theme.\u00a0 Then they came back a couple of\u00a0weeks later requesting permission to publish two additional blogs in the same issue.<\/p>\n

In\u00a0four years, I`ve only had about\u00a010 readers request\u00a0removal from\u00a0my distribution list.\u00a0 This because they were retired or the subject did not relate to their field of practice.<\/p>\n

Overall, quite a good reception – suggesting there was a void, and that\u00a0I`m making a contribution to the civil litigation process\u00a0and to insurance claims management.<\/p>\n

Reason #8<\/strong> <\/span>For\u00a0that satisfied\u00a0feeling that comes from creating something – a piece of literature that did not exist before<\/p>\n

Comment:<\/strong> A few months after I started blogging in June, 2012,\u00a0I noticed a feeling of satisfaction after posting an item, a mild elation.\u00a0 It was\u00a0subtle but\u00a0there.\u00a0 On reflection, I realized I felt good because I had created something – a piece of literature that didn’t exist until I put pen to paper.\u00a0 So, I blog for that satisfied, creative\u00a0feeling.\u00a0 You all know how\u00a0elusive that feeling is in our busy work-life, balance-challenged\u00a0lives.<\/p>\n

On further reflection, I realized the feeling was also about finally publishing information on a topic or technical\u00a0issue useful to my readers – finally letting it go.\u00a0 I like my blogs to be as clear and well written as possible –\u00a0in a sense, like well written, mini, expert reports.<\/p>\n

References<\/strong><\/p>\n

    \n
  1. The Advocates` Society, Toronto, Ontario,\u00a0Principles governing communicating with testifying experts\u00a0<\/em>June, 2014<\/li>\n
  2. Peer review costs can be controlled.<\/em>\u00a0 Posted January 22, 2016<\/li>\n
  3. Steps in the forensic engineering investigative process with an appendix on cost.\u00a0<\/em> Posted July 15, 2013<\/li>\n
  4. What do forensic engineers investigate in Atlantic Canada.<\/em>\u00a0 Posted October 9, 2014<\/li>\n
  5. Forensic engineering practice in\u00a0Eastern Canada.\u00a0<\/em> Posted May 7, 2015<\/li>\n
  6. How many ways can a building fail and possibly result in civil litigation or an insurance claim?<\/em>\u00a0 Posted July 10, 2014<\/li>\n
  7. The role of a professional engineer in counsel’s decision to take a case.\u00a0<\/em> Posted June 26, 2012<\/li>\n
  8. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.\u00a0<\/em> Posted November 20, 2013<\/li>\n
  9. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook<\/em>, 5th ed., 2004, Thomson Carlswell<\/li>\n<\/ol>\n

     <\/p>\n

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