Geotechnical News • June 2018
21
From the CGS Board
CGS Professional Practice Committee
holds court at GeoOttawa 2017
Among other things, the Canadian
Geotechnical Society’s Professional
Practice Committee (CGS PPC) orga-
nizes conference sessions to deliver
relevant, practice-related information
and guidance to CGS members. The
PPC’s session held during GeoOttawa
2017 presented some legal consider-
ations when involved in engineering
project-related court proceedings and
the role of being an expert witness in
those proceedings.
The session was led by two of Can-
ada’s leading construction lawyers:
Neil Abbott, a partner in the Toronto
office of Gowling WLG, and Louis-
Pierre Grégoire, a partner in the firm’s
Ottawa office. Louis-Pierre Grégoire
created a mock court environment
with Neil acting as the ‘judge’ and
Louis-Pierre as the ‘lead litigator’.
Graeme McPherson from Gowling
WLG appeared as the ‘expert geotech-
nical engineering witness’ in the case.
‘Court’ was called to order in the
case of the Three Little Pigs v. the Big
Bad Wolf. It was alleged that B.B.
Wolf had blown down the Three Little
Pigs house, valued at $2.5 M, and
in so doing destroyed an additional
$2.5 M in contents. The Three Little
Pigs delivered a statement of claim of
$10 M for the value of the house, its
contents and their emotional distress.
B.B. Wolf filed a statement of defense
that the damages were not due to his
‘huffing and puffing’ but, in fact, were
a result of faulty design and construc-
tion of the foundation of the house.
The expert witness, L.R. Riding
Hood, was then introduced to the
court and the first order of business
for the lead litigator, who represented
the Three Little Pigs, was to examine
the expert’s credentials to establish
his credibility to provide appropriate
expert testimony. This examination is
referred to as ‘voir dire’. The expert’s
curriculum vitae was reviewed and
he was questioned on the details of
his experience. A number of dubious
facts were identified in the expert’s
poorly prepared curriculum vitae. At
times, Neil and Louis-Pierre would
break from character and explain to
the session attendees how the line of
questioning was exposing the expert’s
lack of credibility and how that could
potentially affect the judge’s reliance
on his testimony.
Following the voir dire, the expert wit-
ness was reluctantly allowed to testify,
but the damage to his credibility had
clearly been demonstrated. The litiga-
tion then focused on the expert report.
During the questioning, it very quickly
became apparent that the report was
also poorly prepared and the expert’s
conclusions were systematically called
into question. When the questioning
ended, it was clear the strength of B.B.
Wolf’s defence was weak due to the
lack of appropriate experience of the
expert witness and his poorly prepared
report.
The well attended session provided
a valuable opportunity for attendees
to see, in a mock court environment,
what an expert witness could expect to
be subjected to. Three key points were
made: 1) an expert appears in court
to provide an unbiased opinion of the
facts of the case; he/she is not there
to advocate for either party; 2) the
experience of the expert will be tested
in court, and one should consider care-
fully his/her appropriateness to appear
as an expert; and 3) all documents pre-
sented to the court should be prepared
with the utmost care, to ensure that
they are complete, correct, understand-
able to non-technical individuals and
without bias towards either party.
If you are attending GeoEdmonton
2018 this fall, look out for another
exciting session from the Professional
Practice Committee!
Prepared by James Blatz, Chair of the
CGS Professional Practice Committee
Left to right: Louis-Pierre Grégoire,
Graeme McPherson and
Neil Abbott.
