In the next few months, we would like to describe several examples where analytical data was used in forensic processes. Because our work involves problems, we invariably get involved in forensic situations. Our end is to provide analytical data—facts—upon which problem causes can be unraveled. We stressed the importance of facts in our column about “Seemore Guessless” (CONCRETE CONSTRUCTION, January 2008).
The examples provide insight into some modes of evidence, interpreting the evidence, and using the evidence to fit into overall schemes of different aspects of litigation. The investigations include detailed petrographic examinations of samples from the constructions involved. Evaluating some interpretations of the facts indicate conclusions are sometimes biased, or erroneous, either because of incomplete data due to the analytical investigator, or the failure of an adept investigator to harvest all potential evidence.
Each side of a forensic matter attempts to thwart the evidence of the other side(s). Sometimes the evidence is distorted, incomplete, or selected to emphasize positions, defendable or not—many times in attempts to bias settlement awards. Experts provide and explain their evidence so that, hopefully, all of the forensic data that can be obtained is obtained and reported. Eventually, everyone is entitled to interpret all data, and even supplement it, in seeking “the whole truth.”
One of the foundations of litigation is based on facts, and most, if not all, of those facts—aside from legalities. Another part is legal positioning, always accompanied by strategy and sometimes by cavalierism. Therefore, it is imperative all facts, and not most of the facts, be uncovered and made available. The other side uses some, or all, of the factual data as a basis for interpretation. Experts develop the facts and interpret them, with the assistance of attorneys who use the facts and help interpret them in their own way to fit the circumstance that promulgated their involvement.
The plaintiff's and defendant's experts strive to gain as much information as they can about the concrete product with which they are involved. Sometimes clients want only piecemeal information and not the full gamut of available information because there may be others who, in one way or another, also provide information. The attorney—the kingpin around which specific needs revolve—wants data that he can use to fulfill the needs of his interpretation of the data.
Three examples will be discussed, without bias or distortion. They are somewhat abbreviated but are intended to convey, without prejudice, the essence of what happened.
There are, of course, many aspects to litigation: for example, contracts that define who is responsible for what, materials standards, architectural and engineering design standards, and applicability of standards to what was done at the time of construction, which may be years prior to the litigation. We have been involved in cases where construction occurred 5 to 10 years before active litigation began, and terminated 14 years after active litigation began. As time lapses, there is increased difficulty in resurrecting and reconstructing data.
It may take years for a problem to manifest itself and eventually become recognized. Statutes of limitations often become points of contention and must be litigated and reckoned with. All parties are entitled to amass field and laboratory data, exchange and review the data, and depose those who furnish the data and anyone scheduled to testify.
There always is the possibility of being touched by litigation. It could be as a consultant, expert, attorney, or a participant legally involved because of claims made. We feel an obligation to describe the role analytical experts play in providing data that assists in the adjudicating process.
The three cases involve materials problems, architectural- and engineering-based problems, analytical data presented by plaintiffs to incriminate defendants, and data presented by defendants to support positions that would exonerate themselves. We hope being on the firing line never occurs but, if so, these generic aspects we hope will assist you in weathering the storm.