Developing in Forensic Engineering

Engineering Potpourri Forensics
#1

I get quite a few questions about how to develop into forensic engineering so I am starting this thread to answer from my perspective and to get other experience engineers to offer their experiences, opinions or both.

First, forensic engineering is an even broader discipline/subset of engineering than Civil Engineering, the historically broadest discipline of engineering. It can be a subset of any discipline and often crosses more than one discipline. As an example, a structural failure of a steel structure might involve materials engineering, welding engineering and corrosion engineering…all in the same investigation.

Forensic engineers get engaged by a variety of clients; however, the most common client is an attorney looking for someone to support their case, whether as a plaintiff making a claim against someone or in defense of a claim. A forensic engineer must understand the ethics of an engagement and not allow their opinions to be skewed by the position of their client. A forensic engineer can help either the plaintiff or the defendant by being clear, straightforward and objective in their opinions. I have been involved in cases where I was asked to investigate something and my opinion was adverse to the direction the client needed to go for either a claim or in defense of a claim. In those cases, we simply parted ways.

In my experience, my forensic involvement came many years ago as a result of my involvement in testing construction materials. Over about a 20 year span, my reputation expanded in that arena and my experience with testifying grew. All of my forensic work is a result of referral. We do no marketing of these services, but each time you are in a deposition or trial you get exposed to numerous attorneys (who might become clients if they like your approach and demeanor).

Delving into forensic work requires a lot of experience to do it well and to maintain a reputation of having reliable opinions based upon factual findings in an investigation. Keep in mind that two different forensic engineers, given the same data set, can have two different opinions as to causation or result (the old joke is if you ask 4 engineers their opinion on an issue you’ll get at least 5 opinions). Forensic engineers/engineering experts are supposed to be objective and should not be simply an advocate for their client’s position. Leave the advocacy to the attorneys. They don’t have the same ethical constraints (I’m not implying that attorneys are unethical it’s just that their professional rules are different than ours. Most attorneys I have worked with are highly ethical and somewhat fearful of an ethics complaint against them with their respective Bar Associations).

I have been fortunate to have been involved in so many different projects covering a large variety of issues over the last 40+ years, I can draw on those experiences to develop a forensic investigation approach and develop probable causes of failures based upon facts and past observations.

To summarize…

  1. You need lots of experience… in engineering, reporting and presentation
  2. Gray hair helps! :grin:…there is a tendency to view experienced engineers as having more credibility than younger engineers. This is a misplaced tendency; however, it is common.
  3. Be thorough in your investigation and write your reports keeping in mind that someone who disagrees with you will be reading each sentence in an effort to discredit you, disagree with your conclusions or obfuscate the issue to the point that no typical person would understand it.

These are a few of my thoughts. Those of you who do this or have experience in it, please don’t hesitate to offer your opinions/thoughts/experiences or warnings. All are welcome.

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#2

Thank you for the thoughtful reply. Reading your post I think the largest adjustment for me will be having attorneys as clients - not the ones paying for the build.

#3

You learn to work with them. They can certainly be advocates for getting you paid from their client. They do not want their expert to pull out in the middle of a case because of non-payment by their client. That just creates more problems for them.

#4

@Ron - So glad you are bringing this up; know that you have more experience than anyone else I’ve come across.
Have you ever provided forensic findings for contract construction arbitration?
Or, do you serve as an arbitrator on occasion?

As a 1970’s Bridge & Heavy Contractor, I had a close brush with arbitration, but the issue was resolved before it got that far.

We were the initiator of arbitration against the EOR & Client for extended, intentional failure to pay retainage after completion of work. The Client was willing to pay, the EOR would not let them. After I started the process, the EOR selected a respected local PE to be their arbitrator. When I actually selected our arbitrator, another PE with similar credentials, the EOR realized I was not bluffing. Within hours, received a call from the Client saying “the check (for the full amount) is in the mail”… it was.

Later found out (from two reliable sources) that the EOR had a qualified third-party geotech firm investigate the alleged “problem”. Forensic results indicated construction work was per contract; cause was faulty design. The EOR had been promptly advised of these findings.

I continue to be amazed at the attempted coverup; this was not a “mom-and-pop” engineering firm. Instead, it was one of the international firms now known by the initials of their founders. Had to have been a “rouge employee”.

Anyway, I’m interested in hearing your views on arbitration / forensics in general and compared with court proceedings.

#5

@SlideRuleEra …I’m not a fan of arbitration. It’s a loosy goosy process that doesn’t have to follow many rules. I’ve been in maybe a half dozen arbitrations over the years. If the arbitrators are carefully chosen and can objectively rule on the facts, it can work. One additional problem is that it is extremely hard to overturn an arbitration decision. Once done, its done for the most part.

Here is an excerpt from my book “Principles and Practices of Commercial Construction”, 10th edition, Pearson Publishing…

"What is arbitration? In some respects, arbitration is a mini-trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges in the legal sense. Arbitration may be agreed to by the parties, may be required by a provision in a contract as a means for settling disputes, or may be provided for under statute if requested. One advantage of arbitration is that it can occur within a relatively short time period, usually at the discretion of the parties involved.
Arbitration of professional matters is usually done by a panel such as one provided by the American Arbitration Association (AAA). The AAA has a specific set of rules for the proceedings, and the panel must meet certain minimum standards. It is not necessary that the panel have legal experience, but should have experience in the professional field that is the subject or close to the subject of the arbitration. The panel selection is often done such that the plaintiff selects one member, the defendant selects one member, then the selected panel picks the third arbitrator. Occasionally, a retired judge, some other respected lawyer, or some organization that provides these services will hear arbitration singly. Contract-required arbitration may be converted into a legal judgment on petition to the court, unless some party has protested that there has been a gross injustice, collusion or fraud. According to the Uniform Arbitration Act, the only reasons to set aside or vacate an arbitration award are:
(a) Upon motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:
(1) the award was procured by corruption, fraud, or other undue means;
(2) there was:
(A) evident partiality by an arbitrator appointed as a neutral arbitrator;
(B) corruption by an arbitrator; or
© misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;

(3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to Section 15, so as to prejudice substantially the rights of a party to the arbitration proceeding;

(4) an arbitrator exceeded the arbitrator’s powers;

(5) there was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under Section 15© not later than the beginning of the arbitration hearing; or

(6) the arbitration was conducted without proper notice of the initiation of an arbitration as required in Section 9 so as to prejudice substantially the rights of a party to the arbitration proceeding.

(b) A motion under this section must be filed within 90 days after the movant receives notice of the award pursuant to Section 19 or within 90 days after the [movant] receives notice of a modified or corrected award pursuant to Section 20, unless the [movant] alleges that the award was procured by corruption, fraud, or other undue means, in which case the [motion] must be made within 90 days after the ground is known or by the exercise of reasonable care would have been known by the movant.

© If the court vacates an award on a ground other than that set forth in subsection (a)(5), it may order a rehearing. If the award is vacated on a ground stated in subsection (a)(1) or (2), the rehearing must be before a new arbitrator. If the award is vacated on a ground stated in subsection (a)(3), (4), or (6), the rehearing may be before the arbitrator who made the award or the arbitrator’s successor. The arbitrator must render the decision in the rehearing within the same time as that provided in Section 19(b) for an award.

(d) If the court denies a motion to vacate an award, it shall confirm the award unless a motion to modify or correct the award is pending.

This is binding arbitration and barring one of the noted conditions, it is usually hard to escape the decision. Many states provide for mandatory arbitration of cases on a non-binding basis in the hope that these proceedings conducted by experienced attorneys will give the parties a clearer picture of the probable result and lead to acceptance of the arbitrator’s decision. It should be noted that an arbitration panel’s decision might vary significantly from a lay jury’s decision, given the same evidence.
Arbitration might or might not follow the rules of civil procedure used in court cases. This depends upon the rules under which the arbitration is done and agreement by the parties. When attorneys are involved on the arbitration panel, it is more likely that some semblance of the civil procedure rules will be followed, though concessions are likely on both sides of the table as far as evidentiary processes. When other professionals are involved, there is a lower likelihood of such rules being followed, as there is a greater likelihood that the panel members are not familiar with the rules. This can be dangerous to one party or the other as sometimes it is better that certain information not be allowed as evidence in an effort to prevent an undue advantage to one side or the other, and to preclude erroneous or “pseudo-factual” evidence such as hearsay."

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#6

@SlideRuleEra…to answer your questions, I have not served on an arbitration panel. I have considered signing up to do so; however, at present I’m too busy to do that. I also want to get certified as a court appointed mediator…in Florida, essentially all construction disputes have to go through at least one mediation prior to trial. I’ve been involved in cases that had 3 or 4 mediations prior to trial and reached settlements.

#7

Thanks, Ron. Looks like arbitration is best avoided.

#8

A retired friend of mine became involved in arbitration a few years ago. He has passed away now, but he strongly believed that arbitration was a better solution to the kinds of dispute he was hearing than the alternative court procedure.

At the conclusion of a hearing, he often received letters of appreciation from both or in some cases, all parties to the arbitration indicating substantial savings in both time and cost in resolving the dispute.

#9

@BAretired…
@SlideRuleEra

Some have had good outcomes with arbitration; however, others have had terrible experiences. The same is true of court cases. As far as reasonable outcomes for both sides go, court-ordered mediation usually provides the better result for both sides. It is a negotiated settlement that saves the cost of a trial and the less controlled outcome of arbitration. If there is no settlement, then the dispute can continue to arbitration or trial.