A “Toolbox” for Forensic Engineers

18 Forensic Materials Engineering: Case Studies
had been using the plaintiff’s numerous documents to frame his questions.
The judge had scrutinized many of the documents and found them lacking
key details (some pages appeared, on the face of it, to have been deliberately
obscured during photocopying). The judge asked for the originals, but they
were not produced by the time the case collapsed, with the defendant dropping
his counter-claim, and winning all his (substantial) costs.
The end result could not have been predicted before the trial started but
this example demonstrates very effectively the power of cross-examination
to reach the truth of a matter in dispute. The experts were thus never called,
and the technical merits of the case never tested. Halted trials are not uncommon,
and it is even more common for civil trials to stop at the doors of the
court when final offers are made between the opposing lawyers. It is a crunch
point for both parties, because they know that all the evidence will be tested
in minute detail. Any weaknesses will be exposed in the light of open court
(normally held in public), so both sides face stark reality before the trial
commences and often reach an acceptable compromise without needing the
added expense of a trial. In trials involving several defendants, the lawyers
must decide whether or not to proceed to trial irrespective of the merits of
a case. A settlement may be reached before trial because the costs of going
to trial are out of all proportion to the costs of the dispute itself. For example,
no fewer than ten different subcontractors were sued by a university due to
corrosion failures that necessitated extensive repairs. Because each party
agreed to a modest settlement, their costs were much lower than if the case
had been heard in a trial that was estimated to last 10 weeks. The defendants
had strong technical evidence that supported their case that the college was
actually at fault for not treating the water supply correctly with anticorrosion
chemicals. The costs of all ten companies would have included appearances
of their senior managers and operatives in the trial together with ten experts
instructed by each company, as well as the much greater costs of the ten teams
of lawyers. So they agreed to a commercial settlement without testing the
merits of the case, a sensible end to what could have been a long trial (with
no necessary clear conclusion), adverse publicity and substantial loss of goodwill.
Often the evidence is tested by “without prejudice” (i.e., nothing can
be used later in a court) meetings between the experts. It may end up in a
total disagreement (in the worst examples) with an “agreement to disagree,”
or with partial agreement on the technical issues. This is very valuable to
the court, which usually asks for a statement of the areas of agreement and
disagreement, because it saves time by focusing on the critical points in a
case.