When ISEs go to court

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ISE Magazine Volume : 50 Number: 3
By George Bishop

It doesn’t happen often, but it usually involves work measurement

Very few engineering programs – if any – discuss the roles that industrial engineers may have to play in various litigation processes, and that one day in the exercise of your profession you may be asked to affirm in court that you will be telling the truth, the whole truth and nothing but the truth. This puts many industrial engineers in the predicament of going into court with minimal insight and knowledge about what to expect and how to navigate the world of litigation related to industrial engineering. Litigation can be time-consuming, expensive and usually leaves permanent sequels; therefore, litigation quickly becomes your top priority at the expense of your other commitments.

While IEs don’t often wind up in court in the course of their profession, when they do, the situation likely involves work measurement issues. Let’s examine the most likely scenarios where IEs are asked to participate in dispute resolution and litigation, as well as discuss how and for what purpose IEs become active and important participants in these situations.

IEs outside of labor law

Industrial engineering involvement is not as common in civil or criminal litigation, but it does happen.

It is worth discussing how our profession can strengthen some civil litigation cases. For example, the author was involved as an expert witness that involved a plaintiff who sought monetary compensation relative to the purchase of additional equipment that was required to fulfill a contract.

This case involved a network of hospitals that had contracted the cleaning of all linens, uniforms, gowns, etc. to a private laundry service. Upon review, the network decided to no longer outsource its laundry services, cancel the contract and assume the penalties attached to the breach. The private laundry service initiated litigation, wanting to be compensated for equipment that it had expressly purchased to satisfy the needs of the cancelled contract.

In this specific case, the industrial engineer’s role was to establish what, if any, additional capacity was required on the part of the plaintiff because of the original contract. Was the purchase of the new equipment required? Was the appropriate equipment purchased with regards to the additional capacity related to the contract? In this case, an industrial engineer was the ideal choice to analyze and quantify the processes and equipment and accurately calculate production capacity.

Criminal litigation is the least likely type of litigation to require the expertise of an industrial engineer, but IEs might become involved in cases that escalate from labor litigation to criminal litigation when one of the parties ignores an arbitrator’s decision. When this situation happens, sometimes the parties go back into arbitration.

Criminal negligence or recklessness essentially happens when an individual both understands and disregards a situation that presents a high probability of harming or killing others. In cases of this nature, industrial engineers can testify to best practices as they relate to health and safety.

The industrial engineer’s role

Now that we have established the types of litigations that might require an industrial engineer’s expertise, let’s examine how our profession can play a part in the legal mechanisms. Most of the time the industrial engineer will play an active role in the proceedings, but sometimes the engineer acts more as an advisor to legal counsel.

It is important to realize that when you are testifying, your audience can be an individual (e.g., judge, arbitrator) or group (e.g., jury, board) that ultimately will render a decision. Therefore, you must speak directly to those individual(s), using terms that they will be able to discern and comprehend, all while clearly bringing your point across.

Often, your audience does not have a scientific or technical background, which adds to the complexity of delivering your message. The final verdict will depend on what and how they understood the evidence you presented, which means it is not enough to be right – you must be convincingly right.

An expert witness is a different type of witness, which legal-dictionary.thefreedictionary.com defines as: “A person who is a specialist in a subject, often technical, who may present his or her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his or her expertise, training and special knowledge.”

Brigitte Bishop, a deputy inspector general for the City of Montreal and former crown prosecutor, said an expert witness can make or break a case or a trial.

“The principal quality besides being honest and telling the truth is understanding that nobody expects you to know everything,” Bishop said. “You are more credible to admit you don’t have all the answers than to improvise and fail.”

An expert witness is afforded the opportunity to introduce evidence based on his or her qualifications regarding the subject he or she is testifying about. An expert witness needs to be recognized as such by the court. Typically, this is accomplished by first showing that the academic background of the expert witness is relevant to his or her testimony and, second, that the individual possesses sufficient experience to be considered an expert. In general, expert witnesses have resumés that reflect their expertise in what is usually a narrow field that matches the expertise needed to introduce solid and credible evidence.

Industrial engineers can testify as expert witnesses to corroborate the testimony of another engineer and strengthen the original testimony. In more complex cases, legal counsel may decide to use an expert to submit complementary evidence to broaden the scope of the technical evidence and to mitigate the risks. Industrial engineers also are used as expert witnesses by opposing counsel to refute or discredit the evidence presented by the other side’s engineer or expert. This can lead to a battle of experts, wherein the case of technical evidence, credibility and message delivery become the key factors that influence the decision.

In some instances, an industrial engineer will be involved in an advisory role to help legal counsel prepare its case and assist during the hearing process.

Often, the industrial engineer will play a dual role of witness and advisor, but some circumstances may make this impossible. For instance, one party may ask for witnesses to be excluded from the hearing procedures, preventing the witness/advisor from attending. Witnesses typically are not excluded in labor litigation, but it is possible. The only way to guarantee a technical expert’s presence throughout the entire process is to use an advisor. The advisor will be there to assist, and therefore will not be called upon to testify to any evidence.