ADVOCACY

ADVOCACY

DOES THE END RESULT JUSTIFY THE MEANS TO GET THERE?

DAVID R. OLSON, PE

I believe that if you ask this question to practicing attorneys and experts involved in construction defect litigation activities, 9 out of 10 would say no. However, I have witnessed many professionals who seem to disregard professional ethics on behalf of their clients on each case they work on. Each time I have testified, either in depositions or in a courtroom, it seems that I have encountered individuals who will say anything for the benefit of their clients, and void of engineering proof, regardless of how preposterous their statements may be. I have asked myself, do they really believe this?? And, pondered, do they really not understand what they are saying?? My conclusion…of course they know better, the truth is just inconvenient.

The American Society of Civil Engineers (ASCE) includes a paragraph in its 2003 publication, Guidelines for Forensic Engineering Practice, called Objectivity Defined. It states,

The primary task of a Forensic engineer is to investigate and ascertain the physical causes of failures and accidents. The legal and professional rules of forensic analysis require that the opinion of the professional engineer be the result of an objective investigation and unbiased analyses. Webster’s definition of objectivity is adopted herein, giving as “the state or quality of being detached, emphasizing the object, or thing dealt with, rather than the thoughts and feelings of the person.” Black’s Law Dictionary gives a similar definition. The technical investigation, and testimony regarding its findings, must be conducted objectively and independent of the views of the client. Failure of any Forensic engineer to uphold these high standards of objectivity is unethical.

I recognize that this subject is a slippery slope. An expert witness is hired by an attorney to provide evidence on behalf of his case. Consequently, an expert’s fee is paid by the attorney and subsequently by his client. Experts want to satisfy the needs of their clients. This is ingrained within most experts during an active career, learning their trade. As a consulting engineer, I have been discharged more than once when I produced information for my client which did not match what he had hoped to obtain. I have never been stiffed for my fee while working for an attorney, despite not always expressing opinions that matched the attorney’s grand scheme of a case.

Good law firms and attorneys always want to know the truth at the earliest possible time. They do not stand to gain from an expert just telling them what they want to hear. I have been repeatedly told by my clients that they would much rather know the bad news early, so they can cut their losses, and commence a fair settlement for all aggrieved parties. It would be a dis-service to a client to simply agree with a biased opinion, just to make the client feel good about his case. This action would surely be uncovered during deposition, or worse, during trial. I have rarely been involved in a plaintiffs action that did not initially include claims that I would not support, nor have I been hired as a defense expert and found that my client didn’t have at least a little dirt on their hands. Normally, it seems to me, there is a few legitimate big issues for which someone has been wrongfully exposed – and then there are a bunch of less serious claims which get thrown in to spice up the case, perhaps in hopes that it seems worse than it is.

It is my opinion that there is rarely a single correct way to solve an engineering challenge. During 35 years in the HVAC & plumbing design world, I always found myself determining which alternate system was most appropriate for a given set of conditions. It was not always clear cut. Sometimes, there were other factors that impacted the final system determination. Perhaps, I believed it to be in the best interest of my client to specify something other than the least costly choice, or the physically less demanding alternative. However, I realized that all alternatives considered met the required capacity for the job, and complied with the governing building codes and standards. It was my belief that success at my position required me to consider which alternative provided the best long term performance and durability, at a reasonable operating cost and an acceptable installed cost.

Similarly, when I am hired to assist a legal team in the determination of facts, I must consider that the designer or contractor who assembled the mechanical systems for a property also had alternatives which they considered. Just because they did the project differently than I would have, does not necessarily make it wrong. As a forensic engineer, I will analyze the requirements for code compliance, for system(s) operation and for suitability of the installations mechanical needs. I will then conduct engineering analysis to determine the appropriateness of the installed systems, I will study the governing building codes enforced when the project was constructed and I will consider the manner of installation of the installed mechanical systems. Sometimes, testing may be necessary – either performed by myself or by a qualified third-party test agency. Many times, I will find myself performing calculations to determine required system capacities, comparing the results with the capacities of the installed systems. After reviewing all available correspondence and engineering results, I can form and express a valid opinion. I believe it takes genuine knowledge and experience to understand the nuances of various mechanical system alternatives. It is not always obvious.

As an expert witness, it is my desire to be honest and competent in the development of my opinions. When I prepare a written report, I painstakingly organize the report to support the argument which I base my opinions. The reader of the report is provided with not just my opinions, but with the engineering evaluation prepared to develop and defend my stated belief. When I do so, I stand a very good chance of successfully defending my opinions to members of the opposing legal teams. I like to remain in this position. If I cannot prove a condition on paper or with testing, I am not going to state it within a written report – hoping that an expert working for the other side will not notice or question an unproven explanation or theory. By conducting the engineering analysis personally, I can confidently assert or defend my client’s position, and defend against erroneous statements made by potentially less knowledgeable or thorough experts hired by the opposing legal team.