Legal work is not for everyone, in part because there is little room for error. When approached, my potential clients are clearly told that we need to be “armed for bear” because sometimes you eat the bear and other times the bear eats you. This can be interpreted to mean that the expert witness needs to assume that the other party is smarter, has all bases covered and has developed evidence that the adversary cannot disprove.
In one such case, the unused analog output of an existing flowmeter in potable water service for approximately 40 years failed and was replaced approximately 15 years prior to my involvement. The town alleged that the existing flowmeter measured higher than the actual flow and caused excessively high billings for many years. As in many of these cases, the existing flowmeter could not be tested because it could not be located.
The town’s claim was largely based upon a graph depicting the annual water flows billed to the town and the corresponding water flows that the town billed its customers. There should be differences between these flows due to non-billed usage, maintenance activities and leaks — each of which can vary over time. Despite this, the town alleged that it was overbilled because the differences were excessive because the existing flowmeter measured high for years. Measurements obtained from the new flowmeter were not questioned so (apparently) the town considered the new flowmeter to be accurate.
To make a long story short, the town based its analysis on annual data. However, examining more granular data told a different story. In particular, the average flow rates during the month before and the month after the existing flowmeter was replaced were within approximately two percent of each other. Further, the average flow on the day after the flowmeter was replaced was within approximately one percent of the average flow during the month before the flowmeter was replaced. In other words, the new flowmeter measured approximately the same as the existing flowmeter.
The case was abruptly settled just before the scheduled trial date after a judge ruled that most of the alleged damages prior to a certain date could not be recovered. As a result, the town would spend more money holding a trial than it could potentially recover in addition to assuming the additional risk of losing the case and recovering nothing.
In my opinion, the development of granular information would have proved pivotal at trial. In doing so, we stuck to the basics and “armed for bear.”