You can consult with an expert in five (5) different ways, from least expensive to most expensive, according to the technical needs of an insurance claim or civil litigation.<\/p>\n
If you include peer review of your expert’s work or that of another party’s expert – good insurance – you can consult with an expert in nine (9) different ways. (Refs 1, 2)<\/p>\n
The first way – a preliminary factual oral expert’s report<\/strong> – is the best way to start and involves very little of the expert’s time.\u00a0 I gave a preliminary report recently based on 1.5 hours of my time.\u00a0 You can upgrade later if justified by the evidence.\u00a0 A preliminary report is based on:<\/p>\n Judiciously selecting the best way is one<\/em> key to managing the cost of claim adjustment or civil litigation.\u00a0 You still got to manage your costs as distinct from the expert’s costs. (Ref. 3)<\/p>\n These different methods are described below.\u00a0 And there’s a nice, five-item list at the end to help you see how easily the different methods follow on one another.<\/p>\n You must think about how and when you retain an expert because most failures in the built environment are small or medium-sized, not catastrophic and newsworthy – and not affluent<\/em> either. (Ref 4)<\/p>\n Yet, regardless of case or claim size, most failures and injuries require a thorough engineering investigation consistent with how the expert is retained and what s\/he is asked to do.\u00a0\u00a0You can always start small and expand the investigation as.the evidence comes in, if this seems justified.<\/p>\n Peer review of the expert’s work, regardless of how she’s retained, is not so necessary, not one of the basic ways, but it is good insurance – and cost effective for that reason alone. (Ref. 1)\u00a0 It’s done in science as a matter of course – a forensic investigation is carried out to the same standard of care.<\/p>\n ***<\/p>\n In the past, experts have been retained in one of two ways:<\/p>\n Today and in the future – almost without exception – experts will serve as consulting experts in the resolution of disputes rather than testifying experts.\u00a0 This is because of changes in civil procedure rules governing experts.\u00a0 The changes are designed to expedite resolution of disputes and reduce the number of cases going to trial.<\/p>\n (I attended Expert Witness Forum East in Toronto in February, 2019 and gave an invited talk on the principles governing cost control involving experts. (Ref. 3) I learned that 98% of cases in one area of dispute were settled out of court.\u00a0 I can’t remember the area but know it wasn’t engineering and science.\u00a0 Nevertheless the great majority in these fields, percentages in the mid-90s, are also settled out of court)<\/p>\n The\u00a0consulting\u00a0expert<\/strong> will submit one or the other of the following two basic reports according to a client’s instruction.\u00a0 Ideally, these reports would be submitted at several stages throughout an engineering investigation, starting at the preliminary assessment stage, to keep the client informed as to what the evidence is finding and the cost to date:<\/p>\n The oral report\u00a0<\/strong>can also b<\/span>e presented in one of two ways:<\/span><\/p>\n A\u00a0factual\u00a0<\/em>report gathers together all the data\u00a0from the\u00a0office, field, and laboratory investigations and submits the raw data t<\/em>o the client – without analysis and interpretation.<\/p>\n It’s used now in the science and engineering fields.\u00a0 For example,<\/span> in the geotechnical investigation of ground and foundation conditions at a proposed construction site.\u00a0 I was introduced to this type of reporting while practicing in Australia and England for several years.\u00a0 It’s used a lot over there.<\/p>\n An\u00a0interpretative<\/em>\u00a0report analyses the raw data,<\/em> draws conclusions and formulates an opinion on the\u00a0cause of the failure or accident.\u00a0 The report can be quite comprehensive, particularly in a\u00a0complicated case.<\/p>\n The cost of a factual oral report is easier to estimate and control.\u00a0 The cost of an interpretative oral report is more difficult.\u00a0 Sometimes very difficult because you don’t know what you’re going to find at the site of an engineering failure or accident if you follow-the-evidence. (Ref. 5)<\/p>\n A\u00a0factual oral<\/em> consulting expert’s report\u00a0<\/strong>to a client could be quite inexpensive compared to a written report to the requirements of civil procedure rules governing experts.\u00a0 A peer review<\/em>\u00a0of the factual oral report could\u00a0also be relatively inexpensive.\u00a0 The peer might discuss the facts with\u00a0the expert – orally – and the investigation supporting these.<\/p>\n For example, <\/span>I gave a factual oral consulting report<\/em> on a power tool accident.\u00a0 I did this after I videotaped the victim reenacting the accident and after the tool was examined for wear but before investigating the adequacy of the design and manufacture of the tool.\u00a0 Counsel decided against further investigation based on my factual oral report.<\/p>\n Other examples: <\/span>A colleague who reconstructs traffic accidents said he frequently gives oral reports on his findings.<\/p>\n Similarly, an\u00a0interpretative <\/strong><\/em>oral<\/em> consulting expert’s report<\/strong>\u00a0<\/strong>could be relatively inexpensive with or without a\u00a0peer review<\/em>\u00a0compared 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\u00a0report\u00a0<\/strong>can also be presented in one of two ways:<\/p>\n The relative costs of these two ways of writing a report on a forensic engineering investigation are apparent – less for factual<\/em> and more for\u00a0interpretative,<\/em>\u00a0and a little more still for peer review of either.<\/p>\n A summary of sorts<\/strong><\/p>\n So, the cost of retaining an expert increases from least expensive – a preliminary<\/em> factual oral consulting expert’s report<\/em>\u00a0without\u00a0peer review, to most – an\u00a0interpretative written consulting expert’s report<\/em>\u00a0with\u00a0peer review.<\/p>\n It’s no surprise that an interpretative written expert’s report<\/em> is one of the most expensive if it’s remembered that “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. 6)<\/p>\n And, I might add, turn questioning and rebutting the report, before discovery, into a cakewalk, a tsunami, if the report is distributed to all parties.<\/p>\n How you retain an expert – there are five (5) different ways – is one<\/em> key to reducing the cost of all insurance claims and civil cases, affluent and less affluent alike.\u00a0 You can’t lose, if you manage your own costs properly, as I’m sure you do, with so many cost effective ways to retain an expert.<\/p>\n And, like I said above, possibly the best way of all<\/em>: Briefly talking with an expert at the insurance claim or case merit assessment stage.\u00a0 Retaining an expert at this stage, for a few dollars, would be like a preliminary factual oral consulting expert’s report.\u00a0 <\/em>This is the most cost effective way of all and the best return on money spent on an expert; possibly even better than peer review.\u00a0 You can always do additional engineering investigation, if justified by the evidence.<\/p>\n Here’s how the different ways of retaining an expert appear in a list, from least expensive to most expensive:<\/p>\n A bit repetitious but I think helpful in deciding how to retain an expert in a cost effective way.<\/p>\n I did\u00a0not\u00a0include testifying expert<\/em>\u00a0in this blog because this role for an expert is much less likely in future – a few percent at most across all areas of dispute.<\/p>\n References<\/strong><\/p>\n Bibliography<\/strong><\/p>\n (Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada November 30, 2018 ejorden@eastlink.ca)<\/span><\/em><\/p>\n (Updated March 19, 2021)<\/span>\u00a0 \u00a0<\/span><\/em><\/span><\/p>\n","protected":false},"excerpt":{"rendered":" You can consult with an expert in five (5) different ways, from least expensive to most expensive, according to the technical needs of an insurance claim or civil litigation. If you include peer review of your expert’s work or that … Continue reading \n
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