The Role of Forensic Analysis and Litigation Consulting

In this feature we hear more on the subject from Bill Acorn, expert witness and founder of Acorn Consulting Services, LLC. Bill provides us with an in-depth examination of the role these experts play through the lens of his own practice.

What areas of facilities- and engineering-related expertise are offered by Acorn Consulting Services (ACS)?

ACS provides expert services related to the built environment with emphasis on HVAC, piping, plumbing, fire protection, and energy management systems that affect the operation and utility of buildings in the commercial, institutional, and industrial sectors. We evaluate both design and construction of those systems and opine on matters related to defects, standard of care in design and construction, environmental control, and contractual disputes between owners, contractors, or design professionals.

In addition to matters related to the built environment, we are sometimes asked to opine on intellectual property matters, including allegations of misappropriation of trade secrets or infringement on patents.

How do you advise your clients on litigation and forensic matters?

Each matter involves a different set of facts, participants, timing, technical issues, legal theories and (importantly) the financial claims at issue.

We evaluate the who, what, where, how, and other implications of the claims asserted with respect to our client and develop a plan to support the litigation. This may involve the investigation of the site, testing of systems or components, review documentation produced by the parties, and review of photographs and other evidence from the time of the claim. Facility issues often involve multiple parties, including the owner or developer, the architect/engineer design professional, the prime and subcontractors, equipment vendors, utility suppliers, permitting authorities, specialty consultants, and fact witnesses.

We sometimes recommend bringing in other subject matter experts. That may include electrical engineers, structural engineers, metallurgists, testing agencies, acousticians, or others, depending, of course, on the nature of the problem at hand. When there are multiple experts in a complex litigation matter, ACS often assists counsel in coordinating their efforts to avoid overlap and ensure a coordinated result.

We evaluate the who, what, where, how, and other implications of the claims asserted with respect to our client and develop a plan to support the litigation.

What processes do you follow when it comes to litigation consulting?

Depending upon the complexity of the technical issues involved in the matter, ACS customises and adapts reliable processes to reach definitive conclusions and opinions based on the fact patterns, participants, timing, and technical and legal theories.

Our processes on a given retention may include observation of the construction site, review of the design documents and supporting calculations, re-construction of the original calculations to test the design, evaluation of the performance specifications for equipment or components, testing of components or systems, trending of system performance over time with varying stressors, or destructive and non-destructive testing of components or materials, among other evaluative procedures.

Depending on the results of our qualitative and quantitative evaluations, we advise our clients on a path of further discovery, develop authoritative and coherent affirmative reports, or prepare well-documented rebuttal reports.

Along the way, we communicate with our clients to ensure the services we provide are thorough, unimpeachable, responsive to their needs, and as cost-effective as feasible.

How does your role differ when advising plaintiffs compared to advising defendants?

ACS accepts retentions in both plaintiff and defense matters, with the only caveat that we will not compromise our integrity to provide opinions that we cannot support with sound engineering or scientific principles. We have and will advise clients when we believe they should consider settling a matter in lieu of pressing litigation where the facts and evidence do not support their position.

Plaintiff matters require a high level of certainty in support of affirmative expert positions and opinions. ACS seeks to understand plaintiffs’ counsel’s legal theories and the facts and evidence that support those theories. We strive to objectively evaluate the facts and evidence and occasionally identify additional potential defendants that may have had a role in the adverse outcome that is at issue.

Defendant matters are often driven by the reports or affidavits of experts retained by plaintiffs’ counsel. In such cases, ACS strives to understand the positions and opinions set forth by plaintiffs’ expert(s) and to compare those positions and opinions with our own understanding of the issues in the matter. We utilise our education, training, and years of relevant experience to evaluate those opposing positions and opinions, acknowledging those that are sound and based on relevant science and engineering. In the alternative, we use calculations, diagrams, test results, and myriad other methods to explain our rebuttal of incorrect positions in a manner aimed at being understandable to our client, opposing counsel, and the ultimate trier of fact.

Plaintiff matters require a high level of certainty in support of affirmative expert positions and opinions.

Engineering issues are often complex and esoteric. Accordingly, our ability to explain such matters with real-world analogies or other methods is a key to our litigation consulting success in support of the efforts of our clients.

On what sorts of cases are you often called upon to provide support?

ACS provides expert forensic and litigation consulting services related to the built environment. ACS areas of expertise span a wide range of mechanical engineering and related subjects, including the analysis and evaluation of issues related to performance of HVAC systems; temperature and humidity control in cleanrooms and critically controlled environments; failures in power and process piping systems; plumbing systems; energy management systems; allegations of chemical exposures; fires and explosions; compliance with codes and standards; and the standard of care in design, construction, operation, and maintenance of building infrastructure systems.

The types of facilities we evaluate include commercial and institutional buildings, advanced manufacturing facilities such as semiconductor or pharmaceutical facilities, data centres, and hospitals, among others.

Intellectual property disputes, including allegations of misappropriation of trade secrets or allegations of patent infringement related to the built environment or systems or components that support the built environment, are also areas of our expertise.

What is the value of a forensic expert in litigating complex facility or engineering matters?

In my experience, litigation related to complex facilities virtually always involves design and/or construction issues or operational issues related to the mechanical or electrical systems in one of these facilities. When this is the case, it is imperative to engage a forensic engineering expert as soon as possible to ensure artifacts or conditions related to the failure are preserved or the failed system is studied as extensively as possible under the operating parameters that best demonstrate the anomalous performance.

In my own experience having been engaged in projects long after an event occurred – a fire, an explosion, a piping failure, or the like – the path forward to determine the root cause of the failure is more circuitous and certainly more time-consuming (read: expensive) than it might have been if I had been called in as soon after the event as feasible.

A skilled forensic expert can guide the legal team to secure evidence, query fact witnesses while their memory is current, or otherwise help to organise the litigation process. Sometimes this includes bringing in other experts to evaluate tangential issues, such as an electrical engineer, a structural engineer, a damage consultant or any of a number of other specialty practitioners.

What skills do expert analysts need to bring to bear during this work?

Forensic engineering involves the retrospective analysis of a given situation or problem. The forensic analyst must be able to piece together a credible picture of what went wrong, or what caused a particular event or failure, with information a layperson would find wholly inadequate.

The forensic analyst utilises a combination of education, training, experience, and skill that is often significantly more advanced than the typical practitioner of that engineering discipline. The forensic engineer is an individual that has years of experience to draw upon; the proverbial ‘been there, done that’ kind of experience that facilitates the coalescing and extrapolation of seemingly insufficient facts into a credible, reliable, and supportable explanation of the cause and effect at issue.

The forensic analyst must be able to piece together a credible picture of what went wrong, or what caused a particular event or failure, with information a layperson would find wholly inadequate.

Beyond technical expertise, the forensic expert must be able to explain complex issues to laypersons – whether that be retaining counsel (first and foremost), the owner of a facility, a mediator or arbitrator, or a judge and jury. The process of explaining both the path forward and the results of forensic analysis entails the use of both verbal and written communication.

The forensic analyst must have confidence in his own methods and formulated opinions, yet be objective and forthright in communicating any weaknesses in the case to the retaining counsel.  The expert must be comfortable being the devil’s advocate that can walk the legal team through alternative explanations that the opposing side is likely to set forth even before its expert’s opinions are disclosed. In playing the devil’s advocate role, the best forensic experts prepare their clients for potential weaknesses in their position and assist the legal team in strategising effective responses.

Finally, the forensic analyst must be composed and cool under pressure. The opposing side will employ experts with alternative conclusions and opinions that must be acknowledged if correct and refuted if contrary to the science and engineering analysis that explains the matter. Such composure may be most important during a deposition when the opposing counsel is testing the expert, not only with respect to their technical capabilities or soundness of their opinions but also with respect to how readily the expert can be rattled and lose composure or professional demeanor.

Many complex facility matters that involve engineering and construction never make it to trial. Accordingly, the expert’s performance during deposition may persuade the opposing side that settlement is preferable to ongoing litigation.

How do experts remain current in their knowledge and methods?

Of course, the most obvious method is continuing education through seminars and webinars in the expert’s areas of focus. This generally can only go so far because most seminars and webinars are aimed at entry-level to intermediate practitioners, thus, are likely of little value to the experienced forensic expert.

Perhaps one of the best means of remaining current is for the expert to teach the seminar and webinar subjects to others. In my experience teaching as an adjunct at universities or teaching public and private seminars and webinars, the preparation for such events causes the presenter to coalesce information from various sources, challenge ideas that might otherwise be taken for granted and develop the means to explain complex theories and processes to others. Live seminars and webinars hone the expert’s skill at responding to impromptu questions – thinking on one’s feet is a necessary skill that will serve the expert well during depositions, and cross-examination at trial.

Publishing, whether in books, chapters in books, or scholarly or industry journals, provides the expert with similar skill development as teaching, although the process is generally more protracted and less interactive.

What advice would you give to prospective litigation consultants?

Strive to be the go-to person in your field by providing thoughtful, well-grounded advice to the clients in your chosen field outside of the litigation arena. Be the engineer, architect, contractor, or similar professional that is known to be at the top of their game.

Teach. Speak to a variety of audiences about subjects that you are passionate about. Even if not technical, that kind of experience will prepare you for the crucible that is sometimes the reality of the forensic expert.

Learn to write such that your lay audience can follow your thought process from basic principles to final conclusions and opinions. Back up your conclusions and opinions with citations from authoritative writings and texts and your own independent analysis.

Participate in your industry organisations that promote education and the advancement of your industry. Be part of their process, not just a passive bystander.

Beyond technical expertise, learn the nuances of the litigation field – join organisations such as FEWA, NAFE, or others in your field that teach technicians the requirements and gateway credentials that are crucial to a testifying expert. Participate in seminars presented by organisations that focus on the litigation field and read books published by organisations such as SEAK.

Never stop challenging yourself, and never stop learning. Knowledge and experience are key to confidence as an expert. Yet remain humble – there will likely always be someone with greater experience and knowledge whom you can learn from.

 

William R. Acorn, P.E., DFE, FASHRAE, CFLC

Founder

Acorn Consulting Services, LLC

16420 N 92nd St, Suite 200B, Scottsdale, AZ 85260, USA

Tel: +1 602-888-7250

Fax: +1 520-577-0851

E: bill@acs-eng.com

 

Bill Acorn is an internationally recognised authority on assessing, evaluating, conceptualising and remediating complex project design, construction, and operational issues related to the built environment, with 45 years of experience as a professional engineer. As a forensic engineer, litigation consultant and expert witness, Bill has represented plaintiffs, defendants and their insurers in a variety of domestic and international venues with litigation values to greater than $250 million.

Acorn Consulting Services, LLC (ACS) was founded by Bill Acorn in 1999. ACS serves the design and construction industry and the litigation community that serves those clients. AC as led by Bill has significant experience providing expert analysis of building system design and construction, environmental system control failures, piping system failures, code compliance issues and the cause/effect relationships of performance issues related to the built environment.