oct ewj 24 online - Flipbook - Page 101
Independent Expert Engineer
by Sean Moran, Independent Expert Water Process Engineer
sence of other evidence, the hoofbeats behind you are
more likely a horse than a zebra. I personally have no
appetite for being cross-examined on the basis of a set
of opinions which are contingent on the veracity of a
teetering pile of technically implausible assumptions.
As far as I can see, this approach is intended only to
fashion a stick to beat the lawyers’ opponents with.
I am an engineer specializing in the design,
construction, operation and maintenance of industrial
process plants which purify air and water. This covers, amongst other things, plants treating domestic
and industrial effluent as well as those producing
drinking water. When it comes to selecting an expert
witness in a case involving operation of a process plant,
I would argue that an Independent Expert Engineer
is needed. In this article I define what I mean by each
part of this term, as experience has shown me that
other people use these words differently to me.
Expert
What makes someone an expert in their field? I have
over thirty years of practical experience as a designer,
troubleshooter and commissioning engineer. I also
have a relevant PhD, have written four textbooks and
have been a University Professor, but I am a practitioner who writes, rather than an academic. If anything,
I would suggest that a career in academia is a poor
preparation for expert witness work in engineering.
Independent
A truly independent opinion is not influenced in any
way by personal feelings on a matter or by the people
involved, and certainly not by how much is being paid
for the opinion, under what conditions, and by whom.
I make this clear to my clients at the outset, (especially
where they attempt to describe the assignment as
‘being on their team’). Whilst the typical response is
generally along the lines of "of course, an independent
opinion is exactly what we want", it is all too common
for the client to come back to me once they receive my
report, asking me to leave out the parts which don't
suit their argument. I have seen a lot of unconvincingly one-sided "expert reports" by other "independent experts", and have to wonder if the expert’s
primary duty (to the court) is properly understood by
other experts in my area.
For a start, working as an expert witness far more
often involves assessing practice which is at best barely
competent, than identifying Best Practice, or even
Good Practice. The academic world tends to focus on
how things ought to be, rather than how they are (in
the opinion of academics). Good practice is exceptional, and Best Practice exemplary. These are not the
standards which everyday engineering employs, and
it is as unfair to apply them to an investigation as it is
to second-guess people with the benefit of hindsight
(another thing I see too much of).
I don’t meet a lot of academics working as expert
witnesses, and with good reason. In the real world of
engineering, even in those projects I am involved with
as a working engineer (rather than as an independent
expert), I am frequently confronted by design work
which falls short of the standard I once taught undergraduates to work to, sometimes signed off by more
senior engineers who should theoretically know better.
The projects I am involved in as an independent expert are foreseeably and understandably worse. These
are the projects which have gone so badly wrong that
either an insurance claim or a court case is in the offing. The difficulty then is usually in weighing up the
relative contribution of the plant’s bad specification,
bad design, bad construction, bad operation, or bad
maintenance to the cause of the reported issues.
Since a high percentage of cases never make it to
court, expert witnesses can potentially operate for
many years as hired guns before they have to make a
court appearance. In the meantime, such experts can
gain a reputation for a certain kind of “helpfulness”,
which appears to be go hand-in-hand with a full order
book.
Some litigators have become so used to this kind of
helpfulness that they positively insist on it. A partner
at a Magic Circle law firm I worked with a few years
ago insisted on the right to edit my report. In particular, they tried to make me remove a caveat which
stated that I was not sure I had received all relevant
documentation. When I refused to do so, I was threatened with legal action. (Their stance changed when I
disclosed to the partner that I had actually been inadvertently copied in on an email in which the firm
agreed with their client that certain documents should
be withheld from me…)
Engineer
Engineer is not a protected term in the UK, and even
the term "Chartered Engineer" (the UK equivalent of
the US's Professional Engineer) doesn't entirely mean
what it used to.
The approach taken is rarely this blatant, but it is increasingly commonplace to be asked to produce reports which require the expert to assume certain facts,
or which are based on a curated set of documents.
However, engineering is not philosophy, and some
states of affairs are more likely than others. In the abEXPERT WITNESS JOURNAL
I am a Chartered Engineer, and when I became chartered (1995), this required an accredited engineering
degree and at least four years of a specified type of
practical experience, assessed as meeting a standard of
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