Canadian Lawyer

LEGAL REPORT/FORENSICS "If you get some really strong censorship by a judge, that could be a career-ender. Essentially, we are in the reputation business, and there's no single case that's worth putting your reputation on the line." CHRIS MILBURN, FTI CONSULTING appreciate him standing his ground with a negative report. "They'd rather have the truth, instead of building up unrealis- tic expectations based on something rose-coloured that won't stand up later, putting themselves at serious risk, according to Chris Milburn, the managing director of FTI Consulting, who is often called upon to quantify economic damages in commercial disputes. The cut and thrust of the adversarial process means it is bound to be exposed, and keeping in mind the opprobrium heaped upon Smith and other errant experts is as good a strategy as any for CONSTRUCTION CONTROL INC. SCIENCE • ENGINEERING • SOLUTIONS Forensic Engineering & Litigation Support • Title Insurance Challenges & Consultation • Construction Deficiency Documentation • Real Estate Due Diligence Work • Environmental Assessments • Building Condition Surveys • Failure Investigations • Codes & Standards Besides, any experts tempted to boost their clients' cases are " he says. avoiding bias, says Milburn. "If you get some really strong censor- ship by a judge, that could be a career-ender. Essentially, we are in the reputation business, and there' putting your reputation on the line." s no single case that's worth vides forensic engineering support for the Ministry of Labour, as well as for lawyers defending charges related to workplace acci- dents. He says accepting retainers from both sides of the typical investigation helps reduce any appearance of bias. "We've worked both sides of the fence, and it really depends on who calls us first," he says. At Giffen Koerth, materials engineer Okrutny is particu- Ralph Balbaa, the president of HITE Engineering Corp., pro- larly interested in the more subtle, and often unintentional, biases that experts — like all people — bring to their work. While a minority of shady practitioners may consciously ignore evidence that doesn't suit their position, even the most well-intentioned experts are subject to a series of innate biases that affects their approach to the evidence and the conclusions reached. The simplest way to combat them is to acknowledge that they exist, and attempt to understand them, says Okrutny. "Without understanding bias, we think we're unbiased and impartial, but we let our emotions unintentionally get in the way of our decisions," he says. "I believe that most experts are naturally good. They don't want to be biased, or screw other people and take advantage. They just want to work out what happened and help. flows from three sources: desire, emotion, and knowledge. "In theory our conclusions should be based only on the third one, knowledge. That means you've got to be able to control the other two when you're collecting evidence, writing reports, or testifying, He quotes Plato's observation that all human behaviour " info@constructioncontrol.com Toll Free: 1.888.348.8991 www.constructioncontrol.com TORONTO MONTREAL CALGARY VANCOUVER VICTORIA bias that experts should look out for from the very beginning of every case: 1. Anchoring bias: "This happens when someone gives you an idea or a concept, and then you begin thinking based on that anchor they've provided, " says Okrutny. He identifies four major sources of then you can end up focussing the investigation all on that one spot." 2. Bandwagon effect: "Statistically, the probability of any person " says Okrutny. "If you're not careful, ntitled-1 1 Experts in damages quantification, business valuation and forensic accounting. 12-10-19 10:05 AM Farley Cohen Ross Hamilton Peter Steger Paula Frederick Prem Lobo cohenhamiltonsteger.com 416 304 1595 40 N O VEMBER / D ECEMBER 2012 www.CANADIAN Lawyermag.com Untitled-3 1 11-10-20 12:36 PM

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