Who's Opinion Is it? 12

[Envelope3]

There is debate in the office on how to phrase professional opinions in technical reports. From a legal perspective, when a PE renders an opinion on company letterhead, is it legally the opinion of the individual or the opinion of the company? Moreover, does it matter how the conclusion is phrased within a technical report? For example, which of the following versions would be preferred? "COMPANY NAME concluded the concrete was not adequate because of...." verses "JOE SCHMO P.E. concluded the concrete was not adequate because of...."

 

[human909]

With respect, human909, that is gobbledegook, at least in my opinion.

If you had to look up sentient then I'm not surprised you found that gobbledegook!! But surely that is on you.

An engineering opinion commits the company.

You have a noun there and are verb in that sentence. A company can be committed in a legal and financial sense by an opinion presented in a report. But the company as a non sentient entity can no more have an opinion that my the couch I am sitting on.

If in this discussion we cannot distinguish between an entity capable of thought and an entity not capable of thought then we are going to have an issue having a clear conversation.

For what it's worth I prefer using 'We' and interpret it to mean 'this is the position of a company', although everyone has a different opinion of it.

I agree with this. And like I've said previously I will use the word "we" in professional communication. But when referring to opinions I will refer to the person or the people that hold that opinion. Eg; we the authors, or I the author.

 

[Greenalleycat]

human, whilst I agree that hokie not knowing the word 'sentient' is a personal failing for him () I don't think the sentience of a company is the topic at hand

As I understand, this is really a question around (1) liability and (2) the collective ownership of employees of a company of another employee's opinion

To me, from the perspective of (1) it is simple - the company owns the opinion. I've already been through this so let us not beat the sentient dog

(2) is an interesting one and I can understand the reluctance of one person to feel that they 'own' the opinion of another that they disagree with
I encounter this every week - we have several directors of equal experience and ownership who agree on 90% of their practice and have their own twists on the last 10%
They use those differing opinions to their advantage - as I got told in my interview with them, it's only a mistake once it leaves the company, robust discussion is beneficial to all involved
As a company member I feel you have an obligation to protect the interests of the company (generally speaking, obviously life safety ethics blah blah can overrule it) - so disagreements should be held privately and you should publicly respect your colleagues' opinions
If you have an issue, raise it behind closed doors then respond with the new position - I've certainly done this before, and I imagine most people do
But, you should NOT trash talk a colleague's opinion that you disagree with

 

[GeorgeTheCivilEngineer]

An engineering report is the company. Insurance and trading is all under the company name and so it make sense that it speaks as the fictional person that is the legal entity of the company. (Although the practical effect is that it's written in neutral and factual terms.)

A legal report (giving an expert engineering opinion) is in first person under my name. Because that is the role I would speak to the court and not as the company.

 

[Greenalleycat]

@George, I was discussing this topic (because of this post) with my boss this afternoon
He also does a lot of Expert Witness work and raised the same thing - he felt that he was speaking as himself, not the company
But I made the same point - who gets paid, him or the company? The company does of course
The company obviously relies on his expertise, and in Expert Witness or similar work he puts more personal liability on the line - he is using his qualifications, expertise, and reputation which are all personal attributes after all
But his words still fundamentally bind the company unless he is paid directly and acts in independent capacity only

The way I see it, you can change your own personal liability depending on the situation and wording you use, but you pretty much don't change the company's position

 

[GeorgeTheCivilEngineer]

@George, I was discussing this topic (because of this post) with my boss this afternoon
He also does a lot of Expert Witness work and raised the same thing - he felt that he was speaking as himself, not the company
But I made the same point - who gets paid, him or the company? The company does of course
The company obviously relies on his expertise, and in Expert Witness or similar work he puts more personal liability on the line - he is using his qualifications, expertise, and reputation which are all personal attributes after all
But his words still fundamentally bind the company unless he is paid directly and acts in independent capacity only

The way I see it, you can change your own personal liability depending on the situation and wording you use, but you pretty much don't change the company's position

While money is a necessity, when it comes to court work it shouldn't be a consideration in terms of the opinion given - because whichever side you are instructed by, the opinion must be independent. No-one should ever be 'paid on results' for court work so you can put it to one side in this scenario. Afterall, if you are summoned as a normal witness then you are only getting expenses!

In theory you may be able to get an expert opinion from a company 'fictional person' either in the form of a written statements or by nominating a controlling mind to talk on the company's behalf, but I don't think either side would want it. It would look like dodging responsibility and it'd be easy to tear apart the opinion as being paperthin.

As it is set up now, everything is done so that it is you as an individual who has to make a declaration in your report and put yourself under oath in court. You'd also have to get the judge to agree to a company being an expert and I don't think they'd like it very much either.

 

[hokie66]

"You have a noun there and are verb in that sentence." Please explain. This thread is more and more about grammar. That's the way it started.

 

[XR250]

I try not to use "I" or "We".
"We" is just a strength-in-numbers tactic. I cringe when I read competitor's reports like that - especially when I know the content is all BS.

 

[phamENG]

I try to avoid first person pronouns in my technical and formal business writing. "The author" or "the company" (but usually the actual name of the company) is my preferred way of doing it.

 

[lexpatrie]

NOT that I'm an attorney, or that I have any formal training in legal matters, but having seen a few things...... use at your own risk.

Lawyers who work for corporations do not have a fiduciary duty to protect you as an individual engineer, they have one to protect the company,

This is accurate, although in the more nuanced sense, protecting the individual engineer would likely or at least potentially protect the company in a lot of situations. In the U.S. the employer is on the hook to defend an individual employee who is doing the work as instructed (I don't know the exact terminology). Rogue employee defenses (when true and substantiated in the documentation), are a different matter.

Second, one would not typically go after an individual engineer, as a) being an employee they have no liability insurance, b) see above, individual would assert indemnity and point at the company in question employing them during their legally done work as an employee, so it would go nowhere and risk dismissal (with prejudice?). Attorneys tend to stay within the fences of established practice. Going after an individual employee is rare. c) in civil litigation "all parties" are named, most commonly. Some attorneys prefer to force the G.C. to bring in the subs, but we're talking engineering disputes here, not exactly the same creature, and G.C.'s are on the hook for the work of their subs and have "non-delegable" duties as well, so it's a different creature anyway (everything in law is a different creature.... all cases are unique). In the P.E. sense, I suspect they'd name the company and the engineer. (You could delve into, say, the Hard Rock, but I'm not sure Heaslip engineering even got sued. But Champlain Towers South involved Morabito and a ton of other parties.

they are not obligated to tell you the truth if it is against the interests of the company (which it is).

That's Human Resources, not the attorneys.

This doesn't sound ethical, or legal for that matter, but "you should get your own attorney" would be a sort of indicator that there's a deeper issue at play.

Also, in both of the big recent cases in NZ (involving Hopeless and Bad Engineering Consulting Assholes) the first thing the companies lawyers did was attempt to argue it was all the individual engineers fault and that the company and it's insurance should be off the hook. It didn't work but that's the strategy they take.

If the names are a matter of public record, mentioning the company is probably fine. But steer away from the name calling, aspersions and potential defamation claims.....

Well, another 1802 legal theory of liability falls flat.....

Alleycat - I think the "negligence" bit is intended for your various regulatory boards going after an engineer for negligence, i.e. a disciplinary action. "illegal acts" - so maybe these are acts as a "private citizen" so being an employer doesn't mean you're on the hook to defend your employee when they drive into a crowd of citizens milling about a bus stop.

Certainly you attract some level of personal liability by virtue of being a CPEng engineer putting your name on stuff but ultimately you act and speak on behalf of the company Your personal liability for being CPEng is in addition to the liability attracted by the company - it doesn't subtract from it

Most likely not. I'm not so sure about this one, financially the liability goes to the firm, (the firm is on the contract.... if it's a contract tort, then the contract language mattes) almost certainly, as to "other" consequences (if you consider that liability), like losing your license for being incompetent, that is a separate matter and WOULD fall on the engineer in question (so, Hyatt regency, financial fell on the firm, the engineer (Duncan?) lost their license), and the employer might not be on the hook for defending them, but they might be able to, if their insurance provided coverage for legal expenses of this nature. I suspect these are "off" standard O&E policies.

I [we] think we [we] can all [some of us] agree that everything is fine until the lawyers get involved
Then you're screwed regardless because they will always find a way to fuck you over if they can

Actually, NO. We [I{ cannot agree to any of that.

This is not an accurate description. The nature of the job is to pursue (financial) damages where a tort (wrongdoing) has been committed (ignoring the vast body of criminal law, here).

Violate the fine print on a contract = tort. Which type of tort gets pursued is a legal decision (delay claim, negligence per se, strict negligence, Qui tam, etc.). The courts (or rather, the clerks who work for the judges who write the opinions the judges tend to sign) aren't all that friendly to far-reaching and extremely technical violations, flights of fantasy, etc., so a lawyer will advise their client that this is "unlikely to prevail" as they aren't supposed to just plow client money at something for no reason with zero hope of success. Should the client wish to proceed in full view of them most likely wasting their time and flushing money down the toilet, that's the client's call. While an attorney, (to your view) may be dedicated to screwing you, it's because they are the screwdriver in the hand of someone else, (the client). [ if you want some context on that look at the various Dominion/My Pillow/Mike Lindell lawsuits, or the Eddie Grant versus the Trump campaign over use of music, even the news coverage will give you some insight].

Now, keep in mind sometimes the object is to settle, i.e. nobody admits any wrongdoing and just to make the process stop (once summary judgement and JMOL are no longer on the horizon), money is sometimes given, (your various big tobacco lawsuits and whatnot are in this area, though I suspect there was a lot of "control the liability" versus court involved, versus say "pay them it's stupid make it go away").

There are other situations (where the dispute has no real merit, yet the insured's policy only covers a "set value" of legal defenses, once the money in that account is gone, a settlement can be forced, as the client is then out of pocket on the defense, regardless of how legitimate the claim is, and even if they prevail (which is likely) they'd have to finance the dispute to keep it going, i.e. settlement isn't always somebody paying to make it go away even though it's stupid, sometimes they settle so the insurance pays for the loss. And sometimes they'd rather not risk trial even though it's stupid.

Companies can't hold a thought/voice/opinion. Companies are obviously not sentient and do not hold opinions.

Ah, well. Here in the U.S. Corporations are people and can hold both opinions and religious views. (See Citizen's United and Hobby Lobby). Besides the point, pretty much, but worth mentioning.

I'd say more but I'm out of time for today.

 

[JStephen]

So did "we" conclude what the "forum opinion" was on the question at hand?

 

[lexpatrie]

I think "we" is fairly typical but it doesn't mean what it says, (and I seriously doubt there is much going on in terms of legal implications, at least in the U.S.) as far as your average engineering report it's not all that meaningful anyway, "we recommend deep foundations", that kind of thing. "Normal" engineering reports.

Where it irks me is "we" when there's a single guy, a sole proprietor, or one dude on the site writing an opinion (usually regarding storm damage) and they go "we", like they had a therapy animal with them or something. To me that's where it gets borderline deceptive. Then some guy in another state looks it over as a "peer review" and somehow there's a "we" involved, to me that's murky, it suggests that there were two people on site.

The whole "use the passive voice" sucks the life out of anything you write down, but that's a stylistic choice, if you like that go for it.

 

[BAretired]

There is always a way to write a technical report without using "I","we", "Joe Schmoe" or "company name"; that is the best option. Signature and company name at the end of the report explains adequately who prepared it.

 

[MJB315]

The use passive verbs in reports are to be shied away from. Shy away from using passive verbs in reports.

"The structure was observed", "the site was visited", may seem more technical - but they just make reports chewy and harder to read. That's my opinion (and of those who beat me with a rubber hose....err, I mean, edited and reedited my report drafts for years).

I think it makes sense to structure most reports in a format that resembles:

Project Understanding. This is where you setup the whole thing, including, whether you're speaking as an "I" or as a "we." If the Client asked Your Firm to do a thing, then I feel comfortable defaulting to using "we" (the firm). Sure, you're an individual who is steering the report. Sure, you may have been the only person of the firm's "field team" to visit the site. But in this example, you're part of and speaking for a firm , so I like "we." If you're a one-man-band, then the "we" feels a bit like the "royal we" and should be avoided in favor of "I."

Observations. Please, please, please don't write a book report on what you did to make your observations - you should just present the condition out there at the time you were there. "I drove to the site on a Tuesday and parked my car. I walked a short walk to the site. I then walked onto the site and saw that the concrete was gray. I then walked over to the cliff and saw that the slope was steep. I then looked back and saw that the concrete structure was leaning toward the cliff. I then decided to run. I then.... I then.... ACH. While it's not the worse way to structure an observation section, in my opinion, you're not the focus - the thing is.

So while it's useful to give a "who, where, when, why" opening blurb...the observations should shy away from "I saw" to "The thing is."

We observed the project site on Tuesday, December 41st, 2099. While on site, we observed the following: The parking lot is located near the project site. The concrete structure is gray. The structure is located near a steep cliff. The structure is leaning toward the cliff. Etc. It's just more readable.

Assessments. Based upon our observations and understanding of the project, we assess the following: The concrete structure is in a potentially unsafe condition. Etc.

Recommendations. Based upon our assessments, we recommend the following: The Owner should limit access to the project site without delay. The Engineer of Record and Contractor should be notified of this condition without delay so they can take prudent measures assess the condition and stabilize the structure to reduce the hazard to site occupants or the public. Etc.

Assumptions and Limitations. Our assessments and recommendations are subject to the following assumptions and limitations: Our observations and assessments are based upon what our field team could see at the time of their visit only. We did not attempt to measure the magnitude of the lean using survey or other field measuring equipment. Etc.

Etc. I know that this is an unsolicited report format blurt out adminst of a "we" vs. "I" discussion. But I think that the professional in responsible charge of the project will always be dragged into an issue on the project site, regardless if he/she is using "we" or "I" in the report, regardless if they're working as an employee of a firm.

So I think that by defining the project team up front (we vs I),and then making the report as readable as possible usually is the right move.

That's our two cents. That's my two cents.

 

[lexpatrie]

Must. Not. Edit......


FAIL.

Give e-prime a look (it's a writing thing, not software). Try to eliminate "is" verbs. So...

The parking lot is located near the project site. [Ed: Doesn't quite seem relevant]. The concrete structure is gray. The structure is located near a steep cliff. The structure is leaning toward the cliff. Etc. It's just more readable.

The structure, made of grey concrete (Ed: why do we care?), sits near a steep cliff and leans toward the cliff.

Also, "we" veered significantly off the original question.

 

[MJB315]

We did but since grammar is on the table, let's dig in a bit further. Two questions:

1. Is the E-Prime methodology widely used in technical writing?
2. Could you (or anyone in the community) use it to improve the readability of my [admittedly fake] scenario above?

Because in my years of being edited (and reedited and reedited by those who speak the King's English), I haven't come across it. But I'm now curious about it. What is the virtue in eliminating all forms of the verb "to be?"

I'm looking on ol' Wikipedia - and I see several examples here., which I'm going to copy below.

I'm now going to color coat each example based on whether I believe adopting E-Prime becomes clearer. This is only my opinion, of course. But green means that I can see an improvement in clarity and red means that it is less clear(to me). Blue means that I'm agnostic or could see it in non-technical writing examples.

"The cat is my only pet": "I have only a pet cat".
"The cat is Garfield": "I call my cat Garfield".
"Garfield is a cat": "Garfield belongs to the cat species".
"A cat is an animal": "'Cat' denotes an animal".
"The cat is furry": "The cat feels furry" / "The cat looks furry" / "The cat has fur".
"The cat is sleeping": "The cat sleeps".
"The dog is chasing the cat": "The dog chases the cat".
"There is a cat": "A cat exists there".
"The cat is on the mat": "The cat sits on the mat".
"The cat is here": anything context-specific: "I see/hear/smell/sense/suspect (the presence of) the cat here"

I can't imagine weaving out the word "is" and smushing in "exists" as a default. Or saying that "I see the presence of the site near the parking lot", instead "The parking lot is near the building." But that's me.

But can you please follow though on your editing exercise above and share how the E-Prime approach would improve the overall passage?

Because I love a good red pen edit - especially if it helps improves something.

 

[BAretired]

I can't imagine weaving out the word "is" and smushing in "exists" as a default. Or saying that "I see the presence of the site near the parking lot", instead "The parking lot is near the building." But that's me.

If you have something to say about the parking lot, you could say "The parking lot directly behind the building is in terrible condition and needs to be re-surfaced."

If you have nothing pertinent to say about the parking lot, say it.

 

[lexpatrie]

I can't trace the DNA of E-prime at the moment, but NO, it's not from technical writing, it's one of those "art by constraint" things, and I think I came across it from David Gerrold, a Science-fiction writer. (side note: apparently that's NOT the source of the thing).

Constrained writing --

https://en.wikipedia.org/wiki/Constrained_writing

The reasoning goes using "is" and it's various forms is fairly static and lacks energy, if you would, and it's generally glued to the passive voice as well, which is also pretty dull. Side note, I'm just mentioning it, it should be pretty obvious I haven't adopted it.

 

[hokie66]

I'm only interested in the apostrophe, and the proper usage thereof. Without that, all other talk of good writing is hypocrisy.

 

[dik]

You could have used a semi-colin, too, hokie. They are my favourite...

I'm only interested in the apostrophe, and the proper usage thereof; without that, all other talk of good writing is hypocrisy.

With writing reports, I like them on the 'dull' side.


-----*****-----
So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[MJB315]

Re: "To Be"

@lexpatrie - Ok, that makes sense to me as a writing style intended to provide a certain voice or as an exercise that encourages folks to dig deeper into what they really mean when choosing words and what to believe. I can see the time and place for it.

If I fall back onto some of the style guides I was beat into using instructed to use, I re-stumbled upon this from "Rules for Writers, Hacker & Sommers, 7th:

And that makes sense to me too- especially in technical writing. They encourage pruning away the wordy uses of "to be" but leave in the place where "it" is clear and makes things readable.

You got me thinking and I just wanted to share!