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Geotechnical News • March 2013
33
GROUNDWATER
Does BH stand for bore-hole or borehole-hypothetical?
Robert P. Chapuis
During my career as a consultant, and
then as a professor, I have had the
privilege to be an expert witness in
several cases of dispute, for all kinds
of geotechnical and groundwater
problems, most often for failure causa-
tion analyses. The work and duties
of experts are defined by Procedure
Rules, which depend on the country,
state or province. In Canada, the plain-
tiffs and the defendants hire expert
witnesses to technically evaluate facts
or actions, typically complex issues
beyond the general knowledge and
experience of the judge, jury or court.
In a few legal cases, however, the
court, or the judge, can call upon an
expert for technical help.
In Canada, each party will usually
commission one or several experts to
produce reports and statements for a
professional fee. Each party’s attorney
then produces his expert reports to
the court, which makes them avail-
able to other parties. The experts of
the different parties rarely produce
a joint statement detailing points of
agreement and disagreement to assist
the judge or court. This situation,
an adversarial approach, frequently
leads to consider that an expert wit-
ness works and testifies on behalf
of one party to support that party’s
version of the case, and promote that
party’s interest over any other interest.
Frequently, the judge recalls that an
expert witness is required to provide
independent assistance to the court by
way of objective unbiased opinion in
relation to matters within her or his
expertise. However, there is a clear
conflict of interests between this legal
duty to the court and the financial link
between the expert and the commis-
sioning party. As a result, according to
my experience, a “hired gun” position
is frequent in engineering issues, but
most often a judge perfectly grasps
the situation. In one case for which
I testified in court, the judge clearly
had doubts but did not keep them for
himself. He decided to clarify them
by asking questions to the expert and
his attorney, which revealed that the
expert’s fee included an hourly fee
plus a commission depending upon the
outcome of the dispute.
However, most often, the experts do
not testify in court because the case
never reaches it. A dispute may last
several years before the court hear-
ings. During this long period the
experts help the litigation attorneys
and the parties to clarify the facts.
According to my experience, helping
to clarify a situation is the main role of
an expert witness in Canada, because
90 to 95% of disputes never reach the
court, the parties finding an out–of–
court settlement before court action
begins.
An out–of–court settlement is a legal
contract between the parties, which
ends the dispute without a trial. The
court may enforce the settlement, but
frequently the parties file a notice
that the case has been dismissed. In
almost all cases concerning founda-
tions and groundwater, the parties
decide to keep its content and all other
information sealed and confidential.
As a result, an expert cannot publish
on the technical issues and findings
of the case. This is unfortunate for
the engineering profession, because
many failures and mistakes are never
reported or documented in techni-
cal publications, which could avoid
repeating the same mistakes.
This interdiction is unfortunate. Over
the past few years, the author has
asked for authorization to publish sci-
entific issues on a few old cases, with
a settlement typically older than 20
years, among over two hundred cases
for which he was not authorized to
publish. Authorizations by the owners
and their current legal counsels have
requested that all names and legal
issues be kept confidential. In addi-
tion, no photograph can be published,
which would enable identification of
a site or person. For example, such
conditions were requested for the
recently published old case history of
a municipal swimming pool (Chapuis
2010).
The next issues of Geotechnical News
will present a few short papers on my
“interesting” old cases, but unfortu-
nately for the readers (and fortunately
for those involved) without names and
identifiable photographs. All cases
include issues related to foundations,
groundwater or the environment. A
first case history is presented herein. It
explains a situation that many profes-
sionals have heard of, but in which
very few (I hope) have been involved.