Sunday, 19 April 2015

Expert Witness: You Pay Peanuts, You Get Monkeys


Cartoon: the judge didn't disqualify the expert..... 




















We have had a bit of a rash recently of "expert witness" enquiries which sound promising at first, and them we find out that the enquirer wants me to basically sign off someone else's plant design for £1,500.


The enquirer has usually sent this out to eight other people, none of whom has an engineering degree. We never win at this kind of thing, so we decline to quote nowadays. Chemical Engineers are expensive, and monkeys are cheap. We can't hope to compete on price if quality isn't considered.

The reason I am being asked to sign off the design is often because the original "designer" doesn't have a relevant engineering degree, and some regulatory body or insurer is feeling a little nervous.
Speaking of feeling a little nervous, it often turns out that the plant in question has actually been built, and doesn't work.

Only a fool would guarantee the validity of a design which has been built, and has failed to meet performance specification, but you will find people willing to do exactly that. You will find people who say they are willing to go to court and swear to that.

In fairness to lawyers, it can be confusing that the people in question seem to have some kind of qualification, some kind of PI insurance, and some kind of experience. It can also be confusing that engineers work to a different standard of proof than that used in court.

Let's take the last of these first. Many prospective clients, both for expert witness and troubleshooting assignments apply the kind of logic to the issue of whether a plant works or not which is applied to everyday life. When I ask if the plant works, they tell me it mostly works, or most of it works, or it works except for those few occasions when it doesn't. Alternatively they tell me they never tested it, so they assume it does.

This is however not what an engineer means when he asks if something works. What he means is has it been proven to meet the specification. This usually means has it been shown to produce the specified product 24/7, without fail.

If you haven't tested it enough to offer a statistically significant answer, the correct answer to the question "does it work" is "I don't know " if you haven't tested, (or if you have tested and every sample passed, but you didn't have a proper sampling protocol), or "No" if you tested, and a single sample failed.

If you have tested at random intervals and enough times to obtain a statistically significant answer (based on analysis by a NAMAS or similar accredited lab), the correct answer to the question "does it work" is "Possibly/Probably" if every sample passed, depending on strength of statistical significance. (Which probably in my view matches the UK court standard of proof for a yes)), "No" if a single sample failed. (The picture is slightly more complex if there is an allowable percentage of failures as with water PLCs).

Whatever the basis of the specification, every single client I have ever had an enquiry from is actually in a "No" situation, though the majority are to some extent "in denial" about this. What some of these clients want is someone who looks good on paper to write a short letter offering a justification for the client's misguided view. As such a letter is worthless, £1,500 is a pretty good price for it, as long as you have no professional ethics, professional indemnity insurance, or professional reputation to consider.

Taking these in turn - I am a Chartered Engineer, and a Fellow of the Institution of Chemical Engineers, a "Chemical Engineer of Distinction" as is says in the IChemE's description of the grade. I adhere to the IChemE's code of conduct and professional ethics.

In the UK, anyone can call themselves an engineer. British Water run a two-day course which allows people with no other qualifications or experience to officially describe themselves a "Qualified Service Engineer". I know that some of those invited to bid for the kind of work described here have this as their sole "engineering qualification".

There is nothing wrong with the qualification when used as intended to control the quality of those who maintain basic domestic package plants, but getting FIChemE required four years at university, and twenty years of post graduate experience designing and troubleshooting full scale plants.

I could buy general "Environmental Consultant" PI insurance with a nominal claim value of millions of pounds for less than £100 per year from companies on the internet I have never heard of. Instead I buy policies with a maximum claim value of a few hundred of thousands which cost me thirty times as much (as we continue to cover all previous possible liabilities, as well as all potential future ones) with companies which are still likely to be in business at the point where potential claims might arise.

The thing which really costs me money is the historical cover, and insurance against the possibility of pollution incidents arising as a result of my advice (a thing which has incidentally never happened). To compare like with like, I would advise lawyers to check for these provisions. Not having them keeps costs down.

As I have a professional reputation to consider, I cannot afford to play the numbers game that the monkeys do, assuming that as 98% of cases never actually involve expert testimony, they will not be humiliated in court by a barrister supported by a real expert. They can afford to write partisan reports which would be laughed out of court, and take a small chance of a public dressing down from a judge. They can also take a chance that someone will attempt to claim on their mickey-mouse internet PI policy.

I am very interested in real expert witness work, being asked to do the proper work of an expert witness, offering impartial and genuinely expert advice to the court. I understand the difference between fact and opinion, and consensus and fringe professional opinion. I understand the various standards of proof of the Courts of England and Wales.

I understand all of this because I have spent more time and money on courses in how to be an expert witness that the monkeys have spent on their "engineering qualifications" and PI insurance combined. I have taken courses in Part 35 compliant report writing, conducting meeting of experts, and appearing in court. I have also successfully practiced all of these things.

You can find someone to agree with your favoured interpretation for pennies, but when the wheels fall off your case in court, and you find that their PI insurance is as worthless as their engineering qualifications, you might wish you spent a little more and got expert advice from a real engineer.

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