This feature features Bill Acorn, an expert witness and founder at Acorn Consulting Services, LLC. Through his own experience, Bill offers us a detailed examination of the role of these experts.
Acorn Consulting Services (ACS), offers what areas of engineering- and facilities-related expertise?
ACS offers expert services in the built environment, with a focus on HVAC, piping and plumbing. These systems have an impact on the utility and operation of buildings in the industrial, institutional and commercial sectors. We assess both the design and construction of these systems, and offer our opinions on issues such as defects, standard-of-care in design and construction and environmental control.
We are often asked to comment on matters relating to the built environment. This includes allegations of misappropriation or infringement of patents.
How can you help your clients with forensic and litigation matters?
Every case is unique and involves different facts, participants, timings, legal theories, financial claims, and (importantly), the participants.
We assess the who, what and whereabouts of the claims made against our client and create a support plan for the litigation. This could include an investigation of the site, testing systems or components, reviewing documentation from the parties, as well as review of photographs and any other evidence that may be available at the time of the claim. Multiple parties are involved in facility issues, including the developer or owner, the architect/engineer designer professional, the prime and the subcontractors as well as equipment vendors, utility suppliers and permitting authorities.
Sometimes, we recommend that you bring in additional subject matter experts. This could include structural engineers, electrical engineers, metallurgists and testing agencies. It all depends on the nature of your problem. ACS assists counsel when there are multiple experts involved in complex litigation matters to coordinate their efforts and avoid overlap.
We assess the who, what and whereabouts of the claims made against our client and create a support plan.
What are your processes when it comes down to litigation consulting?
Depending on the complexity of technical issues involved, ACS adapts and customises reliable processes to reach conclusive conclusions and opinions based upon the facts patterns, participants and timing as well as technical and legal theories.
One of our processes for a retention might include observation at the construction site, review and analysis of supporting calculations, re-construction and testing of original calculations to test the design, evaluation and testing of equipment or components, trending and destructive testing of components and materials, and testing of systems.
Based on our quantitative and qualitative evaluations, our clients are advised on a path to further discovery. We also prepare authoritative, coherent affirmative reports or well-documented counter reports.
We communicate with our clients throughout the process to make sure that the services we provide are comprehensive, unimpeachable and responsive to their needs.
What is the difference between advising plaintiffs and advising defendants?
ACS accepts retainers in plaintiff and defense cases. However, we won’t compromise our integrity by providing opinions that we can’t support with sound engineering principles or scientific principles. When the facts or evidence are not in support of our client’s position, we have advised them and will continue to advise them.
A high degree of certainty is required in plaintiff matters to support affirmative expert opinions and positions. ACS seeks understanding of the legal theories of plaintiff’s counsel and the evidence and facts that support them. We aim to objectively assess the evidence and facts, and sometimes identify other potential defendants who may have played a role in the adverse outcome.
Many times, the reports and affidavits of experts retained to represent plaintiffs’ counsel are the driving force behind defendant matters. ACS works to understand the opinions and positions of plaintiffs’ experts and to make comparisons with our understanding of the case. To evaluate opposing opinions and positions, we use our education, training, as well as years of experience. We acknowledge those that are sound and are based on science and engineering. Alternately, we use diagrams, tests results and myriad other methods in order to explain our rebuttal to incorrect positions to our client and opposing counsel.
A high degree of certainty is required in order to support affirmative expert opinions and positions in plaintiff matters.
Engineering problems can be complex and difficult. Our ability to help clients with litigation consulting is key to their success.
What kind of cases do you frequently have to support?
ACS offers expert forensic and litigation services in the area of the built environment. ACS’s areas of expertise include the analysis and evaluation issues related to HVAC systems, temperature and humidity control within cleanrooms and critical controlled environments, failures in power and process piping system; plumbing systems; energy management and systems. ACS also has the ability to investigate allegations of chemical exposures, fires, explosions, compliance with codes and standards, and care in the design, construction, operation and maintenance of building infrastructure systems.
We evaluate a variety of facilities including commercial and institutional buildings, advanced manufacturing plants such as pharmaceutical or semiconductor facilities, data centers, hospitals and other facilities.
Our expertise also includes intellectual property disputes such as misappropriation or patent infringement allegations relating to the built environment or systems and components that support it.
What’s the value of a forensic specialist in the litigation of complex engineering or facility matters?
My experience shows that complex facility litigation almost always involves design or construction issues, or operational issues related the electrical or mechanical systems. It is important to immediately engage a forensic engineer expert to preserve artifacts and conditions that may have led to the failure or to study the system under operating conditions that best show the anomalous performance.
My own experience has shown that I have been involved in projects for a long time after an event, such as a fire, explosion, or a piping problem. The path to finding the root cause is much more complicated and expensive if I was called in immediately after the event.
An expert forensic expert can help the legal team gather evidence, question witnesses while they are still able to recall, and organize the litigation process. This may include bringing in additional experts to assess tangential issues such as an engineer, structural engineer or damage consultant.
What are the skills that expert analysts must have to succeed in this job?
The retrospective analysis is what forensic engineering does. A forensic analyst must be capable of constructing a credible picture about what happened or what caused it. This information is not available to laypeople.
A forensic analyst uses a combination education, training, experience, skill, and often more advanced than the average practitioner in that engineering discipline. A forensic engineer has years of experience. This allows them to extrapolate seemingly insufficient facts into a plausible, reliable and supported explanation of the cause and effects.
A forensic analyst must be capable of assembling a credible picture about what happened, or what caused an event or failure. This information is not available to laypeople.
The forensic expert must not only have technical expertise but also be able explain complex issues to laypeople. This could include retaining counsel (first of all), the owner or operator of a facility or a mediator or arbitrator or even a judge or jury. Communication is essential to explain both the path forward as well as the results of forensic analysis. This can be done verbally or in writing.
The forensic analyst must be confident in his methods and opinions and yet objectively and truthfully communicate any flaws to the retaining counsel. The expert should be comfortable acting as the devil’s advocate and can guide the legal team through any alternative explanations the opposing side may offer, even before the expert’s opinions are revealed. The best forensic experts are able to prepare their clients for possible weaknesses and help the legal team plan effective responses.
The forensic analyst must remain composed and cool under pressure. Experts from the opposing side may have alternative opinions and conclusions. These should be acknowledged and refuted if they are not consistent with the engineering and science analysis that explained the matter. This composure is crucial during depositions, when opposing counsel will use experts with alternative conclusions and opinions. The expert will be tested not only for technical abilities or soundness but also for professional demeanor.
Complex facility cases that involve engineering or construction rarely go to trial. The expert’s performance at deposition could convince the opposing party that settlement is better than ongoing litigation.
How can experts keep up-to-date with their methods and knowledge?
The best method of continuing education is through webinars and seminars in the expert’s area of expertise. The majority of webinars and seminars are designed for entry-level practitioners. They are therefore unlikely to be of any value to the more experienced forensic expert.
The best way to stay current is to have the expert teach other seminar or webinar subjects. I have had the pleasure of teaching adjunct courses at universities, teaching private seminars, and webinars. The preparation for these events allows the presenter to gather information from different sources, challenge assumptions, and explain complex theories and processes to others. Experts learn to respond to questions quickly during live seminars and webinars. This skill will be useful in cross-examination and depositions.
Publishing in books, chapters or scholarly journals provides an expert with the same skill development as teaching. However, it is usually more difficult and less interactive.
What advice would your counsel give prospective litigation consultants?
Be the expert in your field and offer solid, thoughtful advice to clients. You are the best engineer, contractor, or other professional in your field.
Teach. Talk to diverse audiences about topics that interest you. Even if you are not a forensic expert, this kind of experience can prepare you for the challenges that may be faced.
Write so that lay audiences can understand your thinking process, from the basic principles to your final conclusions and opinions. Cite authoritative texts and other sources to back up your opinions and support them with your own analysis.
Get involved in the education and advancement of your industry through your industry organizations. Participate in their work, not as a passive observer.
Learn the nuances of litigation by joining organisations like NAFE, FEWA or other in your field. These organizations teach technicians the necessary credentials and requirements to be a competent testifying expert. Take part in seminars that are focused on litigation and read books published such as SEAK.
Never stop learning and challenging yourself. Expertise and knowledge are the key to your confidence. Be humble, however, as there will always be someone more experienced and knowledgeable who you can learn from.
William R. Acorn P.E.
Founder
Acorn Consulting Services, LLC
16420 N 92nd Street, Suite 200B Scottsdale, AZ 85260 USA
Tel: +1 602-888-7250
Fax: +1 520-577-0851
Bill Acornis a recognized authority in assessing, evaluating and conceptualizing complex project design, construction and operational issues related the built environment. He has 45 years experience as an engineer. Bill is a forensic engineer and litigation consultant, and an expert witness. He has represented plaintiffs, defense attorneys, and their insurers in numerous domestic and international venues.
Acorn Consulting Services, LLC was established by Bill Acorn back in 1999. ACS is a service to the design and construction community as well as the legal community. Bill leads AC and has extensive experience in providing expert analysis on building system design and construction and environmental system control problems. Code compliance issues are also addressed.