Although the majority of product or process failures are resolved by on-the-spot inspection, there nevertheless remains a core of failures that cannot be easily resolved without litigation. One party either cannot believe, or just does not accept the claims of the other side – or sides, for multi-party disputes. There may be several reasons.
The evidence is unclear or ambiguous.
The evidence was destroyed by the accident, or was not preserved afterwards.
The evidence may offer conflicting interpretations of what happened.
The failures may be widespread and thus more serious than isolated incidents – typical of a fault not dealt with during the design phases.
Process failures may be endemic – typically, contract work by one company for another is disputed.
Commercial disputes sometimes result in litigation, where a court is asked to examine the facts, and interpret the relevant law concerning the dispute. There are several tribunals available for commercial litigants, as discussed in Box 5.
Some commercial disputes involve the interpretation of the law itself, and the final decision becomes part of the case law in that area. A case might, for example, be the first to be brought under a new statute – an act of Parliament – and the judgment could be important for what the wording of the act means when applied to real situations and problems. Such test cases are especially important in intellectual property disputes, where the current law in many areas of technology is being outstripped by events. Computer software development is so fast these days it is difficult for the law to keep pace, for example.
Box 5 Legal system in England and Wales
There are numerous courts in England and Wales to which claimants can turn for redress, as shown in Figure 16. The system comprises two quite separate and distinct areas, the criminal and civil courts. In the former, the state prosecutes individuals, and sometimes companies, which have transgressed the criminal law. The civil courts allow aggrieved companies or individuals to pursue claims against others. If someone injured by a faulty product wishes to claim against the manufacturer, they pursue the manufacturer in the civil courts.
The civil courts comprise the small claims courts, the county courts and the High Court, in ascending order of the value of the claim made. The disputes covered by these courts are known as small claims, fast track and multi-track cases.
There are also special courts for dealing with broadly similar types of claims. For instance, intellectual property disputes, which are usually brought by one company against another, are normally dealt with in the Patents Court. It is part of the Chancery Division of the High Court (Figure 17). Other important disputes involving engineering or technical issues may be brought in the Commercial Court, the new Technology Court, or in the Queen's Bench Division of the High Court.
Although claimants can bring their own cases, most cases are actually brought by lawyers: solicitors who organise a case, and barristers who argue in court before a judge. Most cases end with a judgment in the court of first instance, but if the losing side feels the judgment is unfair or based on misinterpreted evidence, an appeal can be made to the Court of Appeal. Further appeal can be made, with the permission of the court, to the House of Lords. This may occur if there is an important principle of law involved. Nowadays, further appeals can also be made to the supranational European Court.
One key difference between the criminal and civil courts is that criminal cases require proof beyond reasonable doubt – a 99.9 per cent certainty – while civil cases require only that a case be proved on the balance of probability – a 51 per cent certainty. In other words, the onus of proof is much higher for criminal prosecutions when compared with civil actions. Another key difference is that criminal cases are normally tried before a jury, while civil actions usually occur before a single judge.
Criminal actions start before a magistrates' court, and most minor actions are settled there. A small proportion involving serious crimes proceed to the Crown Court. Other tribunals include the Coroner's Court for investigating sudden deaths, public inquiries for major incidents and so on.
2.5.1 Trials of disputes
Disputes are resolved by trials, although a high proportion are settled before trial as the facts become clear after expert investigation and review. So what is so important about a trial? A trial is a public forum where the opposing parties in a dispute confront one another, and attempt to convince a court of the rectitude of their own case. It is often the first time for confrontation, or at least the first time when others are present to order and marshall all the evidence in a systematic and fair way (Box 6).
Much research is done well before the trial, providing evidence to present to the court. The evidence leads to the preparation of arguments to be used for one side or the other. The arguments are prepared in the form of pleadings, documents presented by each side in support of their case, and prepared by the lawyers with the aid of experts if technical issues are at stake. Frequently, so-called skeleton arguments are presented as more evidence comes to light with the trial approaching, and the original pleadings must be revised.
The forensic engineer plays a key role in marshalling the evidence, both the real evidence – such as failed products – and the often voluminous documentary evidence. For instance, if a product fails, there will normally be in-house documents from the manufacturer relating to quality control. Such documents are usually ‘discovered’ well before trial, and in technical cases may include the following.
Maps, plans, and engineering drawings.
Quality control records.
Models and prototypes.
Specifications and standards.
Such documents assume great importance as a trial approaches, because they help to flesh out the background as well as providing key details about the product in question. Where a claimant has suffered loss or injury from a product failure, he or she does not have the information about the way the product was made, or the way its quality was checked after manufacture. The claimant will often have an expert report on the failure, however, which will point to areas that show how the defect could have arisen or how it slipped through quality control procedures. The expert performs a valuable role here, by pointing out what ‘discovery’ should be made to clarify why something failed.
Box 6 Types of evidence and trial procedure
The raw evidence available for a court to consider comes in several different forms. For technical cases, it usually includes one or more of the following.
Real evidence, which could include the failed product or products, tool parts under question, models and prototypes.
Testimony from witnesses of fact relating to an incident or incidents.
Testimony from expert witnesses.
Pleadings in the case, which have been drawn up by the lawyers for both sides.
Documents discovered from both sides related to the facts at issue.
The trial opens with a speech from the claimant's barrister, which outlines the case against the defendant. It is usually short, and is followed immediately by examination of the first witnesses of fact for the claimant, possibly including the claimant herself. This is usually started by the claimant's barrister, so the questioning is friendly, being designed to put the witness at ease, and elicit favourable information about the claimant's case.
Cross-examination by the defendant's barrister is searching in nature. It is where the work of the court really begins, because the testimony is scrutinised for consistency, ambiguity and sometimes deliberate falsehood. The latter is rare in civil actions, but common in criminal trials. Sometimes cases collapse at this point if the claimant contradicts her own previous evidence, perhaps from a witness statement, and cannot explain the discrepancy.
In a recent case where I was to appear as an expert for the defence, this is just what happened when the claimant contradicted himself on the witness stand, even when the questions from the cross-examiner were put fairly and calmly. The latter had intended only a few questions, because the case hinged on expert evidence, but the questions came thick and fast as his evidence began to unwind. The case ended the next day, because the claimant faced yet more searching cross-examination, and his credibility before the court was by this time rather low. In addition, the cross-examiner had been using the claimant's numerous documents to frame his questions. The judge had scrutinised many 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. The defendant dropped the counter-claim, and won all the costs.
The end result could not have been predicted before the trial started, but demonstrates the effectiveness of cross-examination to reach the truth of the matter in dispute. The experts were never called, and the technical merits of the case never tested. It is not uncommon in full trials for them to halt mid-way, 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 all the evidence will be tested in minute detail. Any weaknesses will be exposed to the light of open court, held in the public eye. So both sides face reality before the trial commences, and often reach a compromise without adding the expense of a trial. Other ways of resolving disputes include arbitration and mediation, collectively known as alternative dispute resolution (ADR).
But it is the material evidence that usually forms the starting point for a forensic investigation, and it is often that evidence which provides a more detailed picture of what actually happened. In an accident, the evidence often gives vital clues about how it was initiated, perhaps from traces of contact with other bodies, or from features that reveal the way the product was made originally. Analysis can also show whether the material of construction was appropriate to the function it performed in service; whether it was affected by processing during manufacture; or whether it was affected by something in the working environment. It is the role of the expert engineer to carry out such investigations (Box 7).
Box 7 Role of the expert engineer
The forensic engineer plays an important role in the resolution of commercial and non-commercial disputes involving technical evidence. For instance, if the failure of a product or component has caused injury, analysis of the failure is critical to the claim for compensation. He or she will be given the failed product, as well as background information on the accident, such as witness statements, and instructed to prepare a report that should include:
the nature of the failure and its consequences;
analysis of the failed product itself;
interpretation of the evidence of the failed product;
possible causes of the failure;
the most likely cause of the accident.
The expert may feel some responsibility to the solicitor paying for the service, or if an expert within a company, some loyalty to that company. However, even if the case never reaches court the report should always be completely objective, and all attempts to bias the conclusions one way or another from outside pressure, whether real or imaginary, must be resisted. A report must be, and be seen to be, a fair attempt to explain a failure in a neutral way. There are several ways of achieving this objective, but the most important is to let the real evidence speak for itself. In a way, a piece of real evidence is a silent witness that will reveal all kinds of detail about the failure that may not be immediately obvious to the untutored eye.
What does a typical report contain? Photographs of pertinent details are normally presented in the report, together with an analysis of the material of construction, an account of any mechanical tests on the material, evidence from new, intact products, and so on. A picture of the sequence of events will emerge as the evidence from the failed product builds up in the report. Finally, a reconstruction of events allows the investigator to re-visit the facts that have been established, and so draw conclusions about the cause. The report should say how the product was made, and whether the material and processing were well chosen.
Much information will necessarily be missing at this stage of an investigation, so the report can point out what extra information is needed from the manufacturer to test the conclusions reached in the report. If for example, the product failed because of faulty manufacture, the report will list the internal documents needed for the process of discovery, a legal process initiated by the instructing solicitor.
On the other hand, if the product failed through abuse by the injured party, the report will be of no further use for the purposes of litigation. It is up to the instructing solicitor to assess the quality of the report, whether or not it is fairly based on the evidence and whether or not it is worthwhile instructing another expert. Experts may differ as to the cause of the accident, especially where critical information is missing.
Experts can also be wrong. It is a sad fact that many investigators fail to probe deeply when presented with instructions either from within their own company, for internal reporting, or from lawyers. I have seen numerous examples of expert reports where the investigators have made a superficial inspection of the failed product, and drawn the wrong conclusions. Such reports are usually from one to three pages in length, and often include no plans or photographs of the product to support the conclusions.
The danger from the superficial approach to problems is that the whole legal process is put into motion on an unsupported base. The process continues to run, sometimes for years, until another expert produces a more firmly based report, which often contradicts the original. This builds up costs that might have been saved. The moral is that failure reports must from the outset examine the evidence in sufficient depth to draw reasonable conclusions.