I recently went on a training course to update my knowledge on writing expert witness reports. I’ve been on a few of these courses now, but this was the first one which explored the issue of keeping records of your investigations. I’m very keen on keeping what I would describe as at least adequate (and by no means excellent) records of all that I am involved with professionally, so this area piqued my interest.
I have kept technical notes of my work since pretty much day one of my career, which is something we should all have done since, strictly speaking, we are expected by our professional bodies to be acting as competent engineers from our first day at work as an engineer. This is a big ask, considering the impracticality of university “engineering” courses, but that is how the courts see it.
In the photo is a selection of my notebooks, going right back to the Filofax I used to use for the purpose, back when they were a thing. I also have a shelf full of lever arch files of hard copies of calculations etc. from the early part of my career, and gigabytes of electronic copies of documents from the last twenty-five years, after most things moved onto computers.
Many of us will be aware of the need to keep financial records for six years in case the tax man comes calling, whilst other document retention rules can vary, being for example much longer in some US states. Modern data protection regulations require us to consider whether hanging on to information (itself potentially a form of processing, depending on what it contains) is legitimate.
I take the view that, certainly as far as notes go, it is both legitimate and necessary for the engineering practitioner, having been involved in a case as an expert witness where the competence of an engineer was called into question twenty years after the fact.
The engineer in question found himself being cross-examined on his everyday working life two decades previously, and the fact that he had retained his hardcopy contemporaneous notes gave him a firm basis for defending his decisions, and supporting his memory of events.
These records did not meet the standards of excellence expected of an expert witness engaged in interviewing witnesses as to the facts of a matter, but they nevertheless passed muster.
This is just as well, because meeting the gold standard for note-taking – as described by the presenter of my recent expert witness training course – would prevent engineers from getting much work done.
We should remember that much of the product of someone involved in design is a form of record of the decision-making process involved in design. Engineers tend to record the progress of their design in drawings, and in formulaic documents which are commonly based in mathematical rather than verbal reasoning, so an engineer’s work product is not naturally found in a set of notes. I have developed a practice of maintaining a full record of all that I do in this area (where my contract with the client permits).
Where records of words spoken are most useful to engineers, is in recording instructions given by and discussions with other people. This kind of record is what came to the aid of the engineer who found himself in court long after the fact.
Many engineers tend to confirm anything which seems at the time to be potentially contentious by sending an email to the person who said it (and possibly their boss). This may however be seen as hostile, and will in any case often be unacknowledged by the recipient. Nevertheless, backups of emails can form a useful body of supporting evidence.
I have never had to deal with a claim on my Professional Indemnity Insurance (which is just as well, as it is expensive enough as it is – maintaining historical cover for commissioning effluent treatment plants is sufficiently tricky for most insurers to lose interest in insuring you entirely!).
In the event that such a claim is ever made, I know that I’d prefer to be the guy with the contemporaneous records, rather than the one relying on twenty-year-old memories. I’ve not usually got a lot of time for arse-coverers, but in this area, it’s definitely wise to exercise caution.
