1、An Engineer in the Courtroom William J. LuxAn Engineer in the Courtroom William J. Lux Published by: Society of Automotive Engineers, Inc. 400 Commonwealth Drive Warrendale, PA 15096-0001 U.S.A. Phone: (412) 776-4841 Fax: (412) 776-5760 Copyright 1995 Society of Automotive Engineers, Inc. eISBN: 978
2、-0-7680-6160-4Library of Congress Cataloging-in-Publication Data Lux, William J., 1925 An engineer in the courtroom / William J. Lux. p. cm. Includes index. ISBN 1-56091-672-9 1. Evidence, Expert-United States. 2. Actions and defenses-United States. 3. Forensic engineering- United States. 4. Enginee
3、rs-Malpractice-United States. I. Title. KF8968.25.L89 1995 347.7367-dc20 347.30767 95-32283 CIP Copyright 1995 Society of Automotive Engineers, Inc. ISBN 1-56091-672-9 All rights reserved. Printed in the United States of America. Permission to photocopy for internal or personal use, or the internal
4、or per- sonal use of specific clients, is granted by SAE for libraries and other users registered with the Copyright Clearance Center (CCC), provided that the base fee of $.50 per page is paid directly to CCC, 222 Rosewood Dr., Danvers, MA 01923. Special requests should be addressed to the SAE Publi
5、cations Group. 1-56091-672-9/95 $.50 SAE Order No. R-155In Memoriam On January 19, 1995, when Bill Lux passed gently from this world, he left us all a legacy, in the pages of this book. For we who are his family, it has been a way to help him finish his work. It is indeed a fitting memorial to this
6、man who provided for us so well and lived concepts like truth and justice so el- egantly within our family. For you, the readers of The Engineer in the Courtroom, we hope that in this book you will find the challenge to look at engineering, safety, and law in the way Bill did. They were not just fie
7、lds of study and work for him. Technol- ogy, safety, and justice were means to humanize our world, and he spent his life assuring that always these fields of endeavor were applied in a way that enhanced life for the individual. To Bill, the loving husband and wonderful father, we say in honor of thi
8、s publication: “All our memories of you are happy. We are proud to be your family. The marks you left in this world are good, and they will guide our ways until we meet again.“ Mary C. Lux Jackie Lux Kathy Lux DavisTable of Contents Preface vii Chapter 1 Introduction 1 Chapter 2 The Nature of Accide
9、nts 9 Chapter 3 Why Go to Court? 25 Chapter 4 Avoiding Litigation 35 Chapter 5 The Litigation Process 57 Chapter 6 Engineers and Engineering Information 73 Chapter 7 How the Engineer Can Help the Attorney 83 Chapter 8 The Discovery Process 103 Chapter 9 The Deposition 123 Chapter 10 The Trial 147 Ch
10、apter 11 Questions 177 Chapter 12 Accident Reconstruction 211 Chapter 13 Definitions and Techniques Employed by Attorneys 251 Chapter 14 War Stories 287 Chapter 15 Tips for the Engineer Involved in Litigation 337 Index 341 vPreface This book is based on my experiences as an engineer who spent most o
11、f his life in the earthmoving and construction machinery industry, and who has extensive experience in products liability litigation matters. I have seen both good and bad performances by engineers in the courtroom and all kinds of performances in between. I believe I know why some perfor- mances we
12、re good and others were bad. With my experience, I believe I can help engineers who may be in court in the future by helping them: lose or control their fear of the courtroom and of lawyers and litiga- tion, do a better job of avoiding litigation (although they cant really pre- vent someone from sui
13、ng), and perform more effectively in matters of litigation. The engineer may become involved in litigation for several different rea- sons, or through several different channels. Without regard to how or why he might become involved, the suggestions in this book will help him to over- come his fear
14、of the process and will help him to do a proper and professional job in court and in the matters leading to the courtroom. This book was written almost entirely from personal experience and the studies I have made as a result of being involved in litigation. Therefore, you have a right to know my ba
15、ckground. I am a mechanical engineer, and I worked for 35 years in the industry that is described as “heavy-duty, off-road machinery design, development, and ap- plication.“ I worked with diesel engines as a starting point and branched out into the broader machinery industry. Reaching a position of
16、engineering management responsibility meant that I became familiar with claims and complaints that said, in effect, “Your ma- viiPreface chine isnt good enough and needs to be changed.“ Some of the complaints were lawsuits, which directly blamed the machine, in some way, as the cause of an accident
17、that resulted in personal injury or some economic loss. As an engineer responsible for the design, I was brought into the discussions and into the legal processes surrounding the claim. I met lawyers. In the process of this part of my work, I found that I could work with lawyers in the defense of “m
18、y“ product. I found I even like the intellectual challenge of that type of work. Moreover, I found that lawyers had a whole different language and unique ways of thinking and expressing their work. The differences made me sus- pect them at first, but I learned that one could expand his thinking and
19、under- standing by learning to understand the lawyer, just as one expands his hori- zons by learning a new language. Attorneys may be hard to understand be- cause they use a different language. In addition, they think and reason some- what differently. Let me try to explain the differences. A scient
20、ist seeks to find new knowledge and understanding. He might be likened to a knight in shining armor, riding off in all directions at once in search of a dragon to slay. In the case of the scientist, he is searching for new information to add to his storehouse of knowledge. The journey of the enginee
21、r is a little more direct. He starts out at a known pointtoday, for example. He has a specific assignment or goal to reach. He gets on to his horse and rides in the general direction of that goal. He varies his path to avoid or remove obstacles, but he generally searches for the shortest or easiest
22、way to his objective. The lawyer deals with a body of knowledge and experience which might be given the shorthand name “the law.“ The law is made up of two components: (1) legislated or enacted laws, and (2) law developed by practice. This prac- tice is recorded as the decisions of courts in past ca
23、ses. Where those cases have similarities to the present case under dispute or in litigation, the past experience becomes important in the thinking of the lawyer. Dealing with a case, then, the lawyer considers these three things: viiiPreface First, the lawyer deals with the existing statutes or laws
24、. What specifically does it say? Perhaps, more importantly, what doesnt the enacted law say? The statutes say, “thou shall“ and “thou shall not.“ If one acted contrary to a law, he may be in trouble. Second, the attorney considers the body of legal experience and decisions made by other courts in si
25、milar or related cases. They may guide him in proceeding with his advocacy of his clients affairs. Third, the attorney studies his case and looks for possible “new“ law that may apply. The law is not constant; it changes in a continuum. The aim is to make the law more just and more in tune with the
26、codes and mores of society. True, sometimes selfish interests get too much attention, but, usually, the general good of the people and the rights of the individual are balanced out in the process. This leads to a kind of thinking that tells the attorney to look for new theories about his present sub
27、ject case. In brief, the attorneys thinking is led into several paths. He follows those paths (searching the statutes, searching the common law record, and considering new theories of his activity in the present case) alternatelyand frequently at the same time. This process leads to what laymen some
28、times see as confusing. The term “loopholes“ may enter conversations about what the attorney is doing. Other comments and references, even less complimentary, may be spoken. It is not my intent to critique the thought methods of attorneys. Just as engi- neers and scientist do, sometimes the attorney
29、 may get involved in so much detail that he fails to see the big picture. Likewise, either the attorney or the engineer may miss or lose important details as he thinks. However, I find this “multi-channel“ thought process of the attorney to be interesting and challenging for the engineer who has bec
30、ome accustomed to so-called “logical and scientific“ thinking. The engineer who begins to work with attorneys and in litigation must necessarily expand his thinking if he is to be helpful and successful. ixPreface The dichotomy of thought is that the attorney is both using and developing the law at
31、the same time. If you think of this as a truism, it will help you understand those things in litigation that seem unreasonable. When I retired from industry at age 60, I decided to become a consultant in litigation matters, and in other matters also, as they presented themselves. In an eight-year pe
32、riod of consulting, I was involved in more than 300 incidents involving or leading to litigation. That experience, along with the earlier industry experience, became the basis for this book. So long as one creates a product or performs a service, there is a possibility that someone else will claim t
33、hat product or service to be defective. If a defect exists, there will always be, under our system of government, a possi- bility that someone will claim injury and demand redress for that loss. If somewhere in this book I seem to have turned against lawyers or against the law, it is only in the sen
34、se of a specific disagreement or criticism. I would still fight to retain the system we now have, including the opportunities in the system for continuous improvement. I have worked on both sides of cases in litigation. I have developed the claim against a product to explain how a plaintiff was inju
35、red or sustained a loss. I have been called on to explain my product, one in which I had engineering involvementhow it was designed, how it was tested, how it was applied, and why the decisions were made as they were. I have explained drawings, letters, field reports, and service letters in doing th
36、at. As a testifying expert, I have given opinions about the products of others, as they related to the subject of some lawsuit. In my experience, I have seen engineers frightened by the prospect of being deposed or testifying in court. They need not be. I have seen good work by engineers in such sit
37、uations. I have also seen errors made by engineers who were not properly prepared for the experience. From that background, I have prepared this book aimed at explaining the process to the engineer. By mak- ing him aware of the requirements, the engineer will become confident that he can properly pe
38、rform the tasks given to him, should he become involved in a matter of litigation. xPreface I appreciate the experience my industry employers, Caterpillar, Inc., Cummins Engine Co., WABCO, and Deere & Company, have given me. Without that experience, there would be no reason to write. I also owe a de
39、bt of appreciation to all of the attorneys with whom I have worked. They have given me an experience and understanding that confirms that the world is far larger than the engineering community. There are too many attorneys to name, and they all contributed. Especially, I thank the Society of Automot
40、ive Engineers for 43 years of prov- ing that the written and spoken information is necessary to the proper and successful growth of an industryand of a career. I hope this book is useful to you. William J. Lux xiChapter 1 INTRODUCTION The intent of this book is to introduce the engineer to what he m
41、ay expect to encounter in a matter of litigation. Being so introduced, the engineer may: be able to avoid litigation altogether, know what leads to litigation, understand what accidents are, and how they are caused, learn something about the litigation process, realize the importance of decisions ma
42、de by an engineer, be aware of how the engineer can assist the attorney, know what to expect in discovery, in deposition, and at trial, and know how to best conduct himself in those situations. By exploring these subjects, the engineer will be less frightened by the pros- pect of litigation and more
43、 effective in assisting his company or his attorney- client. He will understand the importance of his professional work and his obligations to society. You will probably become familiar with the courtroom and with litigation through the same means as many othersyou will be asked to defend a de- 1Cha
44、pter 1 sign for which you held responsibility. You wont particularly like the idea of being told through an official-looking piece of paper that “You have been summoned to appear“ before a court reporter and a group of attorneys for a deposition in a matter that involved serious injuries to a plaint
45、iff. You will be told that you would be expected to produce certain written information, records, and other documents. You will also be told that the attorneys will ask questions of you and that you will answer those questions under oath and under penalty of perjury. But you havent done anything wro
46、ng! Why you? Simply because you were the engineer in charge of the product or design and because, under the rules of litigation, the plaintiff has the right to “discover“ information and to ques- tion you about the product and its design. In a nutshell, when you design a machine or a product, you ha
47、ve an obliga- tion to society that the product be “reasonably safe“ and “not defective or dangerous for its intended uses.“ Now, that is not an unreal expectation. When a customer pays money for a product, he has a right to expect it to work properly, and the plaintiff in a matter of litigation is m
48、erely exercising his right to claimif it is provable that your product did not work as he expected, and that he had been injured in some way by that lack of proper performance. He may make that claim through proper procedures in an appropriate court. You may be somewhat frightened in this situation,
49、 until you discover that one proper response to a claim may be to describe the product, the way it was designed, and the proper use and care for the product. Then, if you discover that the plaintiffs claims were based upon some incorrect assumptions on his part (or on the part of his attorney, possibly) you may point out those errors. By explaining the proper way the machine works, and by showing how the accident really happened, you may be able to refute the claims. A jury then, may find no fault in the design. As a designer, you have a lot o
