What do Consulting Forensic Engineers do?

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1 What do Consulting Forensic Engineers do? An introduction to the world of Consulting Forensic Engineers what their roles and responsibilities are, how they investigate incidents, how they prepare their reports and the process of giving Expert Evidence in Court. Briefly - how they are instructed and how they get paid. 20/01/2012 1

2 Paul Romeril Expert Witness Forensic Engineer Chartered Civil Engineer Member of Association of Consulting Forensic Engineers Investigating Claims and Giving Evidence for Plaintiffs & Defendants for 28 years Led development of Rules for Joint Inspections and Court Reports in ACFE Estimated Practice Split by Case Defence 55% Plaintiff 45% 20/01/2012 2

3 The Courts There are two basic court systems: Criminal Courts which deal with crime including Health and Safety prosecutions. Civil Courts which deal with personal injury actions, commercial disputes and such matters as well as family law, libel etc. 20/01/2012 3

4 The Courts The fundamental difference between the court systems is the standard of proof required: Criminal Beyond Reasonable Doubt Civil Balance Of Probabilities Most Consulting Forensic Engineers do some criminal work but it is limited and can be very specialized. It is normally done on Legal Aid. 20/01/2012 4

5 The Civil Courts There are three levels of Court in which a Consulting Forensic Engineer might appear : District Court current jurisdiction c. 6,000 Circuit Court current jurisdiction c. 31,000 High Court unlimited jurisdiction The jurisdictions are likely to be substantially increased in the near future. 20/01/2012 5

6 The Civil Courts The are countless District Courts. I rarely do District Court work unless I am being paid to by an insurance company. Cost awarded are small. Each geographic county has at least one Circuit Court normally located in the county town. The country is divided into Circuits which are groups of County Courts served by travelling Judge(s). High Court Cases are heard in Dublin, Waterford, Cork, Limerick, Ennis, Galway, Balinasloe, Sligo, Letterkenny and others? 20/01/2012 6

7 The Civil Courts In a Civil Case there is normally one Plaintiff (the injured party) and one or more Defendants (the parties that the Plaintiff claims are responsible) The court basically has to determine two issues: Liability who was responsible for the incident and what if any legal liability attaches to them Quantum how much is the value of the injuries that were suffered 20/01/2012 7

8 Witness Evidence There are essentially two types of witnesses who give oral evidence in a court case: Witnesses to Fact they are the people who saw the incident or can tell the court information about the parties such as their wages or medical treatment etc Expert Witnesses they are independent of the parties but can give an Expert opinion on the issues that arise from the incident 20/01/2012 8

9 The Role & Responsibilities of a Consulting Forensic Engineer A Consulting Forensic Engineer is an Expert Witness whose primary role is to assist the Court in matters of engineering to allow the Court determine the issues between the parties. Once an Expert Witness is sworn in, he/she is a servant of the court and his/her primary duty is to the Court and not to the party who has instructed him/her. An Expert Witness is not the property of the instructing party she/he can be called by any side although to be called by the other side is extremely rare 20/01/2012 9

10 The Role & Responsibilities of a Consulting Forensic Engineer In Ireland Consulting Forensic Engineers have broadened their role from giving Expert opinion to include a thorough investigation of the incident (Joint Inspection), Preparation of a Report based on that investigation to assist the parties understand the incident, Painting the Picture for the Court and advising clients (but NOT the courts) on the issue of liability. Consulting Forensic Engineers also advise on Technical Acts and Regulations that might be applicable. 20/01/

11 Investigating Incidents The Principles Consulting Forensic Engineers must follow the evidence and ignore belief, suspicion, gossip and conviction. Consulting Forensic Engineers must realise that everyone s truth is different. The Truth like many things in life can depend on from where you are looking at it and often the Truth lies between the seemingly conflicting stories 20/01/

12 Witness Evidence 20/01/

13 Witness Evidence Film cognoscenti will know that this is a shot from the Hitchcock film Psycho. You will just see part of the shadow of killer s raised arm on the left wall as a result of the light on the right. My 30 - something client, a woman with two young daughters, was charged with murder after she had accidently fatally stabbed her partner in her kitchen following a violent argument when she informed him that their relationship was over. 20/01/

14 Witness Evidence 20/01/

15 Witness Evidence My client was standing at the far end of the table with her back to the window. Her partner was sitting at the near end of the table facing her. She explained that as she went to prod his chest with the point of the kitchen knife he suddenly lurched forward stabbing himself. The shed in the window was not there at the time 20/01/

16 Witness Evidence 20/01/

17 Witness Evidence Her neighbour who lived on the house to the right stated that he had heard the raging argument and had sat at the right hand upper gable window from where he could just see into the back of the kitchen window which is behind the shed (erected since the incident). Her neighbour made a detailed statement explaining how that he had clearly seen the shadow of her raised arm holding the knife as in Psycho as she plunged it down into her partners heart. 20/01/

18 Witness Evidence My client was charged with murder as a consequence of this evidence. The evidence did not stand up. Whilst the witness could just about see her back, it was daylight and there was no source of powerful light which could have cast a prominent shadow the window faced North West. When the Guards became aware of my views they had the shed lifted out with a crane to double check the evidence. It was not necessary for me to give evidence at the trial and my client was acquitted and walked free from the court. The moral of this tale is always to test the evidence. 20/01/

19 Investigating Liability A Forensic Engineer s Approach Finding the right answers is about asking the right questions

20 The Rules 1. Assumption is the death of a good investigation 2. Nothing is Impossible 3. The Impossible is the Most Likely Explanation A. Assume Nothing B. Believe No-one C. Check Everything OR 20/01/

21 Personal Injury Actions The bulk of work carried out by Consulting Forensic Engineers in Ireland concerns Personal Injury Actions. These are generally in four broad categories: EL PL Employers Liability Accidents at Work Public Liability Accidents in premises e.g. slips and falls in Pubs, Parks, shops in the street, park etc RTA Road Traffic Accidents Product Liability dangerous goods, toys, etc 20/01/

22 Lessons of History 20/01/

23 Lessons of History According to history Archimedes (c BC) was not only an astrologist, mathematician and general polymath he was also a Consulting Forensic Engineer. His Eureka moment came about as a result of his investigation into a fraud carried out by a goldsmith commissioned to make a complex shaped crown by his client King Hiero II. Having established Archimedes Principle of Hydrostatics, Archimedes was able to prove by comparing the volume of water displaced by the crown with the volume of water displaced by the weight of gold provided that the goldsmith had substituted silver for some of the gold. A fatal mistake by all accounts. 20/01/

24 Lessons of History The Romans murdered Archimedes in c 212 BC following the fall of Syracuse after a bloody 2 year siege. The Roman historians later claimed that it was a terrible mistake (sounds familiar?) but they had good reason to kill him as he was an engineer who had designed and built terrifying war engines used to defend the city. As a Civil Engineer I do not build War Engines. 20/01/

25 Lessons of History 20/01/

26 Lessons of History On 17 February 1600, 1,812 or so years after Archimedes (who knew that the earth went around the sun) was killed, the astronomer Giordano Bruno was burnt as a heretic at the stake in Rome by the Inquisition. His heresy was to claim that the earth went around the sun as had been suggested by Copernicus some 85 years earlier not to mention Archimedes. Copernicus had realised that this was not a great idea to be publicising and kept quiet about his subsequent observations which supported his theory. The Vatican has expressed regret over the death of Bruno but have suggested that there were other reasons for his sentence - sounds familiar? 20/01/

27 Lessons of History 20/01/

28 Lessons of History A few years later Galileo Galilei looked at the planets with his newly improved telescope and by observation and calculation showed that Bruno and Copernicus were correct - the earth and planets went around the Sun. He published his findings at the request of the Pope no less! The Pope did not get the answer he wanted and Galileo was put on trial for heresy in Galileo was forced to retract his findings and the Pope placed him under house arrest for the rest of his life. It seems that even the Pope Clement Urban VIII felt that he could not burn the Father of Modern Science at the stake. 20/01/

29 Lessons of History Consulting Forensic Engineers must express their views in a clear uncompromising manner. It does not assist a client to tell the client what he wants to hear as opposed to what he needs to hear. Consulting Forensic Engineers do not face the risk of being burnt at the stake but the collapse of a major case because of their failure to do their job can have a similar effect on their future employment as well as being devastating to their client. 20/01/

30 Investigation -The Process 1. Establish the Facts 2. Gather the Witness Evidence 3. Inspect, Survey and Photograph the Locus 4. When, How & Why? 5. The Responsibilities of the Parties 6. Joint Engineering Inspections 20/01/

31 Establish the Facts This step is pivotal in understanding the incident and should be the first step in the investigation. I use my (universal) Fact Sheet which you should have in front of you Obviously not all the points are relevant. Use the 24 hour clock, check the weekday etc 20/01/

32 Gather the Evidence The Blank Page The Fact Sheet Questionnaire completed I move to gathering the evidence. I do not leave my seat but simply turn over the page which is deliberately blank. The sheet is to record a short note of the evidence of each available witness as to the circumstances of the incident in response to my questions. I start with questions that ask the witness to paint the picture of the events leading to the incident such as what did they start doing that morning, when the started the job or where were they coming from and going to. The questions are intended to be uncontroversial. I make simple notes of their answers. When the witness has relaxed into the process I start to ask simple but probing questions in relation to this uncontroversial evidence such as to how they know something or why they did something. These are important questions as they force the witness to think about the events of the day rather than simply recite their account of the incident. They are crucial questions when the credibility of a witness is an issue. Once the picture is painted I move onto the incident. I emphasise to witnesses that I only want to know what they saw, heard, did etc as opposed to what they think or understand or were told. I probe their replies to ensure that they are not obviously mistaken. 20/01/

33 Gather the Evidence The Blank Page I also probe their evidence in relation to other available evidence such as a statement from the injured party or Garda Report. In my experience injured parties are more likely to be broadly accurate in their account than other parties. I try to assimilate their evidence with other evidence rather than identify conflicts. One of the purposes of the process is to force witnesses to articulate their evidence in language away from the locus in the way that a witness in Court has to describe the events. This process often assists the witness in a better understanding of what happened and is important in assisting them in the preparation of their witness statement. As a Forensic Engineer I record answers and information given by witnesses and may be required to read out my notes to the Court but do not take witness statements. My advice in relation to Witness Statements is that ideally they should be hand written by the witness and should paint the picture of events leading to the incident before describing their knowledge of the incident. The Witness Statement should be restricted to facts as opposed to opinions etc. A joint inspection with a Consulting Forensic Engineer for the other side can be of great assistance in clarifying the issues and eliminating apparent conflicts. 20/01/

34 Inspect, Survey and Photograph the Locus The first purpose of this process is to enable the Forensic Engineer to paint the Picture for the parties and their advisers to assist their understanding and to enable witnesses to explain their evidence in Court. This Picture is normally in the form of a book of photographs to which I add titles so as to present a simple story book. It might include Maps and diagrams. The process is important in establishing the relevant dimensions, locations and sequences of the locus to assist the parties reading the report understand the incident. The process is important in providing information to test the evidence of the witnesses. I begin my inspection by mentally recreating the sequence of events in the context of the locus. Once I am satisfied that I have all the relevant aspects identified I survey the locus starting from the greater to the lesser. I then carry out engineering tests such as surface roughness, light levels, timing of phases, speeds etc. Finally I photograph the locus again starting from the greater to the lesser. 20/01/

35 CCTV High Definition CCTV has transformed the claim experience of important sectors such as Supermarkets, Dublin Bus and Night Clubs. It enables prompt decisions to be made on liability and has apparently dramatically reduced the number of claims in these sectors. I know a very large night club where every point of the dance floor is covered by two cameras However like all powerful tools it has great dangers and can equally prove the other side s case. CCTV must be forensically reviewed in the light of the plaintiff s evidence with a written log - a slow and tedious process. Do we see the cleaners that are supposed to patrol every 15 minutes? Any discrepancies in the CCTV can weigh heavily against a defendant Unlike the old tape systems (the tapes were always mislaid) it can be inadvertently? edited without it being obvious. Further many modern systems appear to have a fixed number of frames a second or are motion activated. Crucial seconds can be lost without it being obvious and such missing seconds can only raise doubts in the mind of a judge. However many multicamera systems drop frames if two images arrive at once etc. Invariably the dropped frame is the critical one. 20/01/

36 When, How and Why? In most cases these are seen as simple questions with obvious answers They are in fact the hard questions as most of the obvious answers are based on assumptions It is only when one has fully answered these questions that one can have confidence in one s conclusions My only assumption in considering these questions is that the plaintiff is more likely to be right than wrong 20/01/

37 When? Examining the timeline of an incident is one of the best tools for analysis. Check the day of the week of the accident Check the opening or working hours of the business/plaintiff Check who was on duty at the quoted time Check what was being done at the quoted time Check when repairs and maintenance were carried out Check the weather records Check the time of sunrise/sunset Check the orientation of the locus 20/01/

38 How? Understanding the mechanism of the incident is crucial. Did the plaintiff trip or did she miss the step? Were the lights on or had they been switched off by a timer? How did the plaintiff remove the guard? How did the employer arrange for blockages to be removed? How did the plumber install the pipe work and did he comply with the system specification? 20/01/

39 Why? Understanding why an accident occurred is equally important. The assumption that it was pure stupidity on the part of the plaintiff is often wrong. Why did the plaintiff put his hand into the machine? Why did the plaintiff remove the guard? Why did the foreman tell the plaintiff to avoid something if he did not know there was a problem? Why would the plaintiff do something so stupid? You must be able to answer the Why questions RTA present the opportunity for great deal of analysis based on complex formulae. Beware of the process - the formulae are largely theoretical and rely heavily on assumptions - the GIGO rule applies. Make sure the answer makes sense and be conservative in your assumptions. I have seen some complete nonsense presented 20/01/

40 Ouch! 20/01/

41 What happened here? The boom fell because the boom hoisting rope failed. It was in poor condition. Extraordinarily the crane had only been erected a few days. The crane had missed its annual thorough examination by two days. The insurer did not know it was working in the South. However it was not that simple it turned out that the load which was at the limit of its safe load limit had been swung out by the unskilled slinger pushing the crane beyond its safe working load. A common cause of crane collapse 20/01/

42 The Responsibilities of the Parties Whilst Common Law plays a role, in most cases the Responsibilities of the Parties are set out in legislation which includes Acts and Regulations. There are lengthy legal tomes written about the responsibilities of parties in each of the main areas of claims namely Employer Liability, Public Liability, Product Liability and Road Traffic Accidents as well as Contract and Property Law. I have never succeeded in reading more than a few paragraphs of any of them. However I continuously read and study the relevant legislation which is available at Unfortunately this site does not have the historic British Statutes such as the 1899 Public Health Acts Amendment Act. My advice is that the devil is in the detail and simply picking a section out of one Act or Regulation can be a dangerous thing. Views on matters of law should always be qualified. In my view it is not appropriate for an engineer to say that something is a breach of a regulation but appropriate to say that the regulation says this and the party does not appear to have done this. European (or British Standards) are increasingly important with issues like the Machinery Directive. The best site to search is the BSI site which gives you historic and draft standards. However their standards are very expensive. The NSAI site is much cheaper for European standards. Read standards carefully! 20/01/

43 Conclusions of Report Once you have investigated the incident and understood the when, how and why liability is often straightforward in the context of the legal responsibilities of the parties. 20/01/

44 Employers Employers have the greatest responsibility for the safety of their employees and others In my experience an employee will almost always succeed against his employer unless the employee is a liar or a crook. The issues are contributory negligence, credibility in relation to damages and whether anyone else can be blamed. The latter creates problems for defendants dragged into cases as Judges are rarely interested in apportioning blame between defendants and defendants who fight amongst themselves inevitably ensure that the plaintiff will win In the UK the HSE vigorously prosecutes employers in relation to accidents and near misses and hefty fines are imposed on companies and directors personally In Ireland the Courts and PIAB award substantial damages to the injured plaintiff 20/01/

45 Occupiers Occupiers have duties to invitees and visitors particularly if they are commercial operations Children present particular problems injured children will generally succeed in claims The rules in respect to recreational users and trespassers are complex 20/01/

46 Joint Engineering Inspections The ACFE have developed Guidelines which encourage Consulting Forensic Engineers to investigate accidents co-operatively at Joint Inspections The intention is that the inspection is investigative rather than adversarial trying to agree as much as possible and identify the issues In these circumstances Joint Engineering Inspections make a lot of sense particularly where there are several parties Engineers are expensive and these days very busy but a joint inspection is a lot cheaper than a day in court 20/01/

47 Writing the Report There is no standard format Every consulting forensic engineer has their own style I write my reports along the following lines: Fact Sheet Details of Incident including reference to pleadings etc The Scene of the Incident Experience of the Parties Conclusions of Report Outline Guidelines on the content of report are given in the ACFE Guidelines. 20/01/

48 Giving Evidence The Engineers Reports have been exchanged and you have seen what your opposite number is going to say You have had your consultation with the lawyers The court hearing has started The plaintiff and the witnesses of fact have given their evidence The engineer for the plaintiff is called and sworn in The judge may or may not have a copy of your report Your counsel begins your examination he asks the questions and you have to answer them 20/01/

49 Giving Evidence Address your answer to the Judge call him/her JUDGE The KISS (keep it simple stupid) principle applies Remember most people in the court will not have a sound grasp of basic engineering principles. Concepts like torque are simply not understood You will probably go through your book of photographs I call it my story book If you have done your work this process should be straightforward The Judge is likely to ask you questions always remember that the Judge s questions are the important ones 20/01/

50 Cross Examination This is the process by which you live or die as a forensic engineer. The opposing counsel is unlikely to challenge your opinion immediately or directly unless of course it is clearly wrong in which case you should not have expressed it in the first place If you are not well known to the Court the counsel will first test your credibility as a witness by asking questions that might sound off beat but are often carefully planned. Listen to the questions, think carefully, take your time and answer the question ASKED straightforwardly. NEVER be evasive or try to be smart. It is an insult to the court. If Counsel asks you what the coefficient of expansion of copper is, the answer is not I DON T KNOW but the amount that a given length of copper will expand for a given rise of temperature etc 20/01/

51 Cross Examination REMEMBER ABOVE ALL ELSE THAT IF YOU LOOSE YOUR CREDIBILITY IN FRONT OF A JUDGE THAT JUDGE WILL HOLD IT AGAINST YOU FOR THE REST OF YOUR CAREER. THE WORD WILL ALSO PASS AROUND THE BAR. IT IS SAID THAT EVERY ENGINEER HAS THEIR CURRENCY - IT NEEDS TO BE DEUTSCHMARK AND NOT DRACHMA 20/01/

52 Cross Examination Counsel will then move on to the issue and test the credibility of your conclusions. If you have got it wrong you are going to have to deal with the problem there and then. REMEMBER DOING YOUR BEST FOR YOUR CLIENT MAY BE BREACHING YOUR OBLIGATION TO THE COURT AND DESTROY YOUR CREDILITIY. IT IS UNLIKELY TO ASSIST YOUR CLIENT. DO NOT TREAT THE JUDGE AS A FOOL HE/SHE GENERALLY UNDERSTANDS A LOT MORE THAN HE/SHE LETS ON. THE SIMPLE QUESTIONS THE JUDGE ASKS ARE THE DANGEROUS ONES. 20/01/

53 How are you instructed and paid? Plaintiffs I do not deal with plaintiffs directly for all sorts of reasons I accept instructions from their Solicitors but the plaintiff is my client I charge a retainer of 242 but am fairly unique in that regard I have to await the outcome of the case for payment of my fees which is typically 2 years but can be a decade I charge fees on my published scale applicable at the time of settlement/determination of case I sometimes have to give a discount because my fees will not be recoverable in full on taxation Some poor cases settle all in and I have to give a significant discount 20/01/

54 How are you instructed and paid? Plaintiffs If the plaintiff has no money and loses his case I am not going to get paid I avoid the term No foal, no fee because it is illegal but am on hazard if no foal is produced! I will only act on payment up front if there is no obvious insurance company or similar body to pay my fees at the end. This applies to building and boundary disputes and uninsured defendants. Beware of the solicitor who promises you a bundle of work if you will do a particular case and the solicitor who seems poorly organised. Paying the engineer is normally a low priority in his/her chaotic world. You can only sue the client which is a fruitless task if the problem is the solicitor. It is not a good idea to sue a solicitor. Be wary of celebrity solicitors. 20/01/

55 How are you instructed and paid? defendants? In most cases you are instructed by insurance companies, loss adjusters (directly or through nominated solicitors) or large corporates who self insure Most of these have panels and you will have to get on the panel by establishing a reputation or by contacts Many will demand a heavily discounted fee in return for guaranteed payment as you do the work Insist on being paid as the work is done there is no reason not to pay you as the defendant is not going likely to recover costs Beware the Supermarket supplier trap do too much work for a particular organisation and they will put pressure on your fees and whether you act for plaintiffs etc. It will be short term gain for long term pain 20/01/

56 How are you instructed and paid? defendants? Remember they want you to tell them what want they hear but you have to tell them what they need to hear. In the end you will pay the price of expediency over independence with your credibility as you are cross examined over your glowing but hopelessly optimistic report which impressed your clients so much. Resist pressure to change your report (unless you have made a mistake). Remind clients that all your reports will have to be exchanged ultimately. Avoid uninsured defendants and ignore promises of money tomorrow they never pay. The only time to get paid is when the tear is in the eye! If pressed demand substantial amounts to be paid into the solicitor s client account upfront to cover your fees that generally gets rid of the problem or solves it! 20/01/

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