Without Prejudice All discussion materials content and opinions

Without Prejudice All discussion, materials, content, and opinions within this presentation are provided Without Prejudice.

Forensic Report Presentation • Prepared by Dik Coates, P. Eng.

Forensic Reports • • Introduction Forensic Reports Algo Centre Mall Forensic Report Observations and Comments

Forensic Report Introduction

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Without Prejudice – ‘All discussion, materials, content, and opinions for this presentation are provided Without Prejudice’. This statement or declaration has a few benefits; the most important being, with a few exceptions, the information cannot be used as legal material without the express permission of the author.

Introduction • Without Prejudice Con’t – It is important that the ‘Without Prejudice’ declaration is prominent and not easily ‘missed’. – It is often the first statement of a forensic report.

Introduction • Without Prejudice Con’t – When a document is prepared and the ‘Without Prejudice’ declaration is included, it is an indication that there may be some ‘serious’ material included within.

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Preamble – The first part of this presentation is an introduction to forensic reports. – The second part relates to the preparation of forensic reports. – The third part of this presentation will be a discussion of the forensic report prepared for the Algo Centre Mall Collapse at Elliot Lake, Ontario.

Introduction • Preamble Con’t – My presentation on Forensic Reports is a general review of preparing a forensic report. – The presentation will, however, deviate slightly to provide some insight into a forensic report prepared for a structural collapse.

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Opinion of Employer – This presentation has been completed on my own personal time and none of my employers’ resources have been utilised in the preparation of it. – The opinions expressed in this presentation and those in the review of the Norr forensic report, do not necessarily reflect the views or opinions of my employer or any affiliated company.

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Third Party Disclaimer – This document was prepared by the writer for the express use for this discussion of forensic reports. The material in it reflects the writer’s best judgment in light of the information available at the time of preparation.

Introduction • Third Party Disclaimer Con’t – Any use of which a third party makes of this document, or any reliance on or decisions to be made, based on it, are the responsibility of such third parties. The writer accepts no responsibility for damages suffered by any third party as a result of decisions made or actions taken based on their use of this document.

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Proper Legal Advice – It is not my intent to act as a lawyer; a competent Legal Professional should be consulted for this purpose.

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Notifications – All professionals associated with the object of your report should be notified of your involvement as a professional courtesy. – In some jurisdictions, depending on the report, this may be a professional requirement.

Introduction • Notifications – If there is evidence that will be rendered unusable as a result of testing, then others associated with the object of your report should be advised. – This affords them the opportunity of undertaking whatever testing is necessary to them. – They can provide an argument for the use of non-destructive testing (NDT).

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Credentials – I’m ‘quasi’ qualified to comment on forensic reports. – I’ve prepared numerous reports for both lawyers and insurance companies. – I’ve presented these before a court of law and have been qualified as an expert in several jurisdictions.

Introduction • Credentials Con’t – Prior to testifying as an Expert Witness, the Court has to qualify you as an expert. – As an expert, you are entitled to offer an ‘opinion’ that may have weight in the Trial at hand. – Your opinion may be challenged, and you have to be prepared to defend your opinion.

Introduction • Credentials Con’t – You should record court cases where you have been qualified as an expert. It is common practice to provide a lawyer with your curriculum vitae (CV) that may be presented to the Court. In this document, in addition to your technical expertise, you should note other cases where you have been qualified as an expert, in what jurisdiction, and in what field your expertise has been qualified.

Introduction • • Without Prejudice Preamble Opinion of Employer Third Party Disclaimer Proper Legal Advice Notifications Credentials Fees

Introduction • Fees – Per diem charge out rates are often increased forensic work; this is due to the added level of detail and diligence that is required for a forensic report. It also includes for additional time expended that may be difficult to account for. – This is not to imply that other work is done in an unprofessional manner, only that, forensic work requires added diligence.

Introduction • Fees Con’t – There may be numerous reviews and edits of a single report. It is not uncommon for a forensic report to undergo numerous revisions prior to being published. – You should develop a habit of discarding all prior editions of your document; they should not be retained.

Introduction • Fees Con’t – It should also be a company policy to not retain draft copies of forensic reports. – It is particularly important that automatic backup procedures implemented by an IT department do not cause copies to be retained. – If other copies exist, you may be called upon to explain why the revisions were made.

Introduction • Fees Con’t – As an expert, you are required or expected to know ‘everything’ about the subject, and this may require additional research. – The added fees can accommodate any added research time without specifically identifying it.

Introduction • Fees Con’t – Typically when I’m involved with forensic work, my fees are increased by 75% to 100% of my normal fees.

Forensic Reports • Introduction • Forensic Report Preparation • Algo Centre Mall Forensic Report

Forensic Report Preparation

Forensic Reports • • • Disclosures Perfect Errors Defined Terms Parts of a Report

Forensic Reports • Disclosure of Conflicts – You must not provide a bias, a perceived bias, or a conflict of interest. – If there is a conflict of interest, then it may be best to decline the commission, or acknowledge it, to your client, and proceed on that basis. – If there is a non-disclosed conflict of interest, you may live in ‘interesting times’ when faced with it in Court.

Forensic Reports • Disclosure of Conflicts Con’t – If, for example, I was to prepare a report for an insurance company, I would advise the insured that the insurance company was my client, but, had the homeowner been the client, the report would essentially be the same. – I would further advise them that they could retain an independent engineer for another opinion.

Forensic Reports • Disclosure of Obtained Information – With forensic reports, information is often obtained after ‘the event’. Information may be obtained from local people, witnesses, etc. This information can be included in a forensic report and should be identified as being provided by others. – If the information received is consistent or contrary with your observations or knowledge, then it should be identified as such.

Forensic Reports • Disclosure for Repair/Remedy – In addition, if work has to be undertaken to effect a repair/remedy, it should be noted that the people responsible for the object of repair were advised of the problem and that they be given reasonable opportunity to make good the remedy.

Forensic Reports • Disclosure for Photographs (photos) – The report should note that numerous photos were taken, only a few were included in the report, and that all photos taken are part of the report. – The other photos, not included, are available (by Court Order, if necessary). – All photos for the report should be unaltered, and under the author’s my direct control.

Forensic Reports • Disclosure for Photographs Con’t – IT Departments should not alter or modify photos if they are to be used in Court. If the photos are modified they will likely be rendered inadmissible. – Photos should be presented in their original unaltered form. I keep all photos, including those out of focus or improperly exposed.

Forensic Reports • Disclosure for Photographs Con’t – The photos retain their sequential numbers. – Others do not have access to the original photos used forensic reports.

Forensic Reports • General Disclosure – The preceding disclosures, as applicable, should be included with all forensic reports.

Forensic Reports • • • Disclosures Perfect Errors Defined Terms Parts of a Report

The Shakers had it Right

The Shakers had it Right Their Mission Statement Was:

The Shakers had it Right Their Mission Statement Was: Be Ye Therefore Perfect Matthew 5: 48

Forensic Reports • Perfect – It’s difficult to achieve such perfection, but, your report should strive to be as close to ‘perfect’ as possible. – Depending on the significance, your report will be critically reviewed. It may be ‘dissected, bent, spindled, and mutilated’ to achieve whatever ‘end’ is possible. This is more likely to happen to reports dealing with critical matters.

Forensic Reports • Perfect Con’t – My review and assessment, of forensic reports often find several items that could be improved. – This is partially because I have a standard format that I’ve developed, and usually use this as a guide. – I often review work following that format. – Your report should not appear to be a ‘cookie cutter’ style of report.

Forensic Reports • Perfect Con’t – My review of a report may mean that it is not in error, but it misses some of the information I would normally include. – A fine balance has to be achieved. If a critique is too detailed, then the overall impact of the critique may fail. – Errors should be minimised to prevent any detraction from salient parts of the report.

Forensic Reports • Perfect Con’t – Any issues that may be contentious, should be well researched any printed material, supporting your opinion, should be available to be presented to the Court. – You should also be aware of material that contradicts your statement(s). This is part of being an ‘expert’. Nothing is worse in Court, than, “I didn’t know that. ”

Forensic Reports • Perfect Con’t – As an expert, you can disagree with other experts. – There is a caveat, however, you have to be perceived, by the Court, that you are correct and knowledgeable.

Forensic Reports • • • Disclosures Perfect Errors and Common Mistakes Defined Terms Parts of a Report

Forensic Reports • Errors and Common Mistakes – It is difficult to prepare a report that is totally devoid of errors. A report may be, reasonably, correct, but a large number of errors can detract from it to the extent the included ‘correctness’ may be overlooked. – A report with numerous errors is less professional, and may be perceived in this manner, by others.

Forensic Reports • Errors and Common Mistakes Con’t – Defined Terms – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Forensic Reports • Errors - Defined Terms – Clarity through brevity, and uniqueness is a prime requirement for a Definition. – If shortened terms are used for, persons, companies, or products, there should be a consistency. – The first use of the term should clearly identify the shortened form used.

Forensic Reports • Defined Terms - Caveats – Businesses or companies should be identified by the proper legal name of that entity. For example, Coreslab Structures (Ont. ) Inc. is the proper legal name for one of the protagonists. – Proper capitalisation of words and punctuation are also part of the legal company name.

Forensic Reports • Defined Terms – Caveats Con’t – Defined terms are often used to eliminate the need to use the full proper name. – The method of definition used, should be consistent throughout the report and defined terms should be precise. There should be no ambiguity.

Forensic Reports • Defined Terms – Caveats Con’t – Persons/People should be identified by the formal legal name including, salutation, name, and/or ‘letters’. For example, Mr. Robert Black, P. Eng. would be a proper formal reference.

Forensic Reports • Errors - Defined Terms – The first instance of a person’s name should use the full formal address. – Similarly a company name should be the legal name of the company at the time of the report referenced date. This should include detail to upper and lower case letters as well as punctuation.

Forensic Reports • Defined Terms - There are several methods to present defined terms for: People, Companies and Products. Some of the methods are as follows: – Bold Text, where the definition is given earlier and bold text denoted as being a definition. For example, Mr. Robert Black, P. Eng could be defined as Black, and throughout the report the name ‘Black’ would refer to this individual.

Forensic Reports • Defined Terms - Another method to present defined terms: – Bold Text – Italicised Text, where the definition is given earlier and Italicised text denoted as being a definition. For example, Mr. Robert Black, P. Eng could be defined as Black, and throughout the report the name ‘Black’ would refer to this individual.

Forensic Reports • Defined Terms - Another method to present defined terms: – Bold Text – Italicised Text – (Text in Parentheses) without quotation, Again, Mr. Robert Black, P. Eng could be defined as Mr. Robert Black, P. Eng (Black) and throughout the report the name ‘Black’ would refer to this individual.

Forensic Reports • Defined Terms - Another method to present defined terms: – Bold Text – Italicised Text – (Text in Parentheses) without quotation – (“Text in Parentheses”) with quotation, Again, Mr. Robert Black, P. Eng could be defined as Mr. Robert Black, P. Eng (“Black”) and throughout the report the name ‘Black’ would refer to this individual.

Forensic Reports • Defined Terms - Another method to present defined terms: – Bold Text – Italicised Text – (Text in Parentheses) without quotation – (“Text in Parentheses”) with quotation – Defined in a simple statement, Mr. Robert Black, P. Eng, hereafter referred to as ‘Black’.

Forensic Reports • Errors – Defined Terms – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Forensic Reports • Errors - Spelling, Typographical and Grammatical – A report must appear to be professionally prepared. This requires proper spelling and punctuation. In addition, sentence structure should be suitable for a formal document. – A ‘spell checker’ should be considered as an aid or tool, but should not be relied upon.

Forensic Reports • PEO Guideline - Professional Engineers Conducting Peer or Technical Reviews – On the other hand, the review must not be taken to the point of making criticisms about irrelevant, minor issues. The reviewer should not report on drafting, typing or spelling errors, poor grammar, poor draftsmanship or other aspects of the form of the document unless these problems cause the documents to be ambiguous, difficult to understand, or create the possibility for mistaken application by those relying on the document.

Forensic Reports • Errors – Defined Terms – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Forensic Reports • Errors - Imprecise Words – You are an expert, and wording should be selected to precisely describe something clearly. The use of imprecise words should be limited. For example, if you don’t know something, then stipulate this; try to minimise the use of a less definitive term like ‘may’ or ‘could’, for example. – It is not possible, sometimes, to avoid the use of imprecise words.

Forensic Reports • Errors – Defined Terms – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Forensic Reports • Errors - Emotional Words – Forensic reports are technical documents and the use of emotional words should be avoided. You are providing information for others to assess.

Forensic Reports • Errors – Defined Terms – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Forensic Reports • Errors - Colloquial Terms – Colloquial Terms should not be used in a forensic report. A forensic report is a formal document, and should be considered as such. – The use of ‘expressions’ that detract from the importance of a formal document should be avoided.

Forensic Reports • Errors – Definitions – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Forensic Reports • Errors - Technical Information (General) – All technical information should be correct. Any incorrect technical information, provided by an expert, that is challenged in court, can produce ‘interesting’ consequences, the least of which is ‘panic’. – There is little that can be done to defend a statement that is technically incorrect.

Forensic Reports • Errors - Technical Information (Codes) – The Code referred to should include any applicable revisions. For example, the Code in effect in Ontario for December , 1979 should be referred to as The Ontario Building Code published under Ontario Regulation 925/75 as amended by Ontario Regulation 718/79. – There may be significant revisions to prompt the code amendments.

Forensic Reports • Errors - Technical Information (Codes) Con’t – All Code References should be correct to eliminate any confusion or lack of clarity. Some Codes, are formally subdivided into Parts, Sections, Subsections, Articles, Sentences, Clauses. and Subclauses. If you are making reference to a ‘Clause’ within the Code, then it should not be referred to as a ‘Section’ or an ‘Article’ within the Code.

Forensic Reports • Errors - Technical Information (Standards) – All references to Standards should be correct. – The publisher of the Standard as well as the applicable Standard date should be stipulated. – There should be no confusion with document reference.

Forensic Reports • Errors - Technical Information (Standards) – The standard referenced should be the document stipulated in the source. Some codes and other reference texts may stipulate an earlier edition than the one at the time of the event. – This earlier edition is the one that should be used.

Forensic Reports • Errors – Definitions – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Forensic Reports • Errors - Missing Information – A forensic report should clearly complete the work described in the scope of work. – Items that contribute to achieving this should also be included. – Missing information can raise the questions, “Why was it not included? ”, “Is this an oversight? ”, “Was the exclusion intentional? ”, etc.

Forensic Reports • Errors - Missing Information – Missing information can also include material that one would reasonably be expected to include. – If the information had no significance, a brief note stating that this was considered, but was found to be unwarranted.

Forensic Reports • Errors (Summary) – Definitions – Spelling, Typographical, Grammatical – Imprecise Words – Emotional Words – Colloquial Terms – Technical Information – Missing Information

Parts of a Forensic Report

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Contents of the Cover Page – Without Prejudice – Unique Identification – By Whom and For Whom – Date – Third Party Disclaimer

Forensic Reports • Cover Page – Without Prejudice – The Cover should stipulate the contents are presented ‘Without Prejudice’ to restrict the usage of the report. – As noted, this should be displayed in a prominent location and is often the first item.

Forensic Reports • Cover Page – Unique Identification – The report Title, Project Number and Legal Street Address should identify, uniquely, the location of the object of the report. – In some rural areas, there may not be an actual address, and it is not uncommon to use the designated 9 -1 -1 address to identify the location. Structure orientation on site should be defined if North cannot be determined.

Forensic Reports • Cover Page – By Whom and For Whom – The cover should clearly identify the person/business that has prepared the forensic report. – The cover should clearly identify the person/business that has requested the forensic report.

Forensic Reports • Cover Page – Date – The cover should clearly identify the date the report was published. – Dates that site visits were undertaken can be listed within the body of the report.

Forensic Reports • Cover Page – Third Party Disclaimer – It is often prudent to provide a Third Party Disclaimer statement within a forensic report. – This can be included on the Cover Page or it can be located within the Introduction of the report. – The purpose of the Third Party Disclaimer is to minimise liability from others using the information contained within the report.

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Table of Contents – If a report is lengthy there could be a ‘Table of Contents’ to assist the reader to find information within the report. – Small reports, however, may or may not have either a Cover or a Table of Contents and all required information may be contained in the body of the report. – Small forensic reports are often done in a standard letter format.

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Introduction – There could be an introduction that reiterates the information on the cover page, and explains why the report is being prepared. – There can be a brief comment about the content of the report.

Forensic Reports • Introduction Con’t – For small reports, the introduction can contain portions that would often include any Disclosure of Conflicts, and Scope of Work.

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Scope of Work – The scope of the work undertaken should be clearly defined. – It should clearly state what work has been included in the report and, also, what work has been excluded. – It should also stipulate the limitations of the report, for example, connection corrosion was not observed due to the structure being obscured by finishes, etc.

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Disclosure – Disclosure addresses items that may pose a conflict of interest or perceived bias. It is best to address these items to prevent being ‘blindsided’ in a Courtroom. – Prior to undertaking a forensic study, the client should be advised of any perceived conflicts. If conflicts develop during the course of the study, then the client should be advised of this at the time it presents itself.

Forensic Reports • Disclosure Con’t – Disclosure provides legal counsel an opportunity to address the impact this may have on the case at hand. If a disclosure of conflicts is not included within the report, then legal counsel should be advised of this well in advance of any trial. – Disclosure describes how a conflict is perceived and why it does not reduce the total objectivity of the report.

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Executive Summary – If the report is extensive, the report may include an optional ‘Executive Summary’. – As well as providing a summary of the report, this is an excellent location to introduce the defined terms, defined individuals, companies, products, etc.

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Body and Conclusion – This part of a forensic report contains the information and results of your forensic study. – The report should be organised in a neat, flowable manner. – A lawyer will not usually interfere in the preparation of a forensic report.

Forensic Reports • Parts of a Report – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices

Forensic Reports • Appendices – The appendices contain groups of information, referenced in the report, that are not contained in the body of the report. Appendices are used for completeness without detracting from the main report.

Forensic Reports • Parts of a Report (Summary) – Cover Page – Table of Contents – Introduction – Scope of Work – Disclosure – Executive Summary – Body and Conclusion – Appendices