Preface

Scientific theories deal with concepts, never with reality. All theoretical results are derived from certain axioms by deductive logic. The theories are so formulated as to correspond in some useful sense to the real world whatever that may mean. However, this correspondence is approximate, and the physical justification of all theoretical conclusions is based on some form of inductive reasoning

(Papoulis, 1965).

The profession of law is several thousand years old, at least. Given this history, it is quite natural that tradition would have an important role. This is especially true in English Common Law, in which precedence has a major influence on judicial decisions. During the past 100 years or so, product liability has developed as the basis of tort law when there is a question of harm caused by a product or service, and thus enjoys the influence of tradition. During much of this time, production volume was relatively low, claims were low in proportion, and over the years, litigation involving product liability became relatively straightforward.

Today, production volume can be massive-hundreds of thousands of units produced and sold annually, with claims increasing in proportion. The result has been class action suits and large volume manufacturing suits, all continuing to be prosecuted by product liability, one claim per unit. From an engineering point of view, this process is inefficient and even ineffective. As seen by engineers, a far more effective mechanism for litigation would be process liability.

The concept of process liability was first defined by attorney Leonard Miller (5 New Eng. L. Rev. 163, 1970) in his article, "Air pollution control: An introduction to process liability and other private actions." Being unschooled in law, I do not know the present status of this idea in legal circles, but it is certainly helpful in forensic analysis and in systems engineering. In this book, process liability is shown to be a direct result of systems engineering procedures and methodologies applied to business operations.

Engineers have long recognized the strong correlation of process to product and many mathematical models are commonly used that can validate this cause and effect relationship. Process liability provides a needed legal basis in forensic application. Forensic Systems Engineering offers a complete approach to the investigation of large volume operations by uniting the concept of process liability to systems engineering.

Organization of the Book

The purpose of forensic systems engineering is to identify dysfunctional processes and to determine root causes of process failure, and further, to assist the court in determining whether harm or a breach of contract has occurred. Chapters 1 through 6 describe the role of management in operations. Chapters 7 through 11 unite liability to the essential characteristics of processes used in these operations. Chapter 12 is a fictional case study of a manufacturer, albeit based on actual events. The narration of the study is similar to the narrative technique used in many graduate schools of business.

Chapters 13 through 15 offer formal mathematical models, widely accepted in systems engineering, to demonstrate the correlation of process to product in terms of the risk of liability. Chapter 16 delves into the most troubling area found in my years as a consultant and expert witness in the litigation of business operations-the verification and validation of processes. Chapter 17 discusses the difficulty of supplier control in the age of offshore outsourcing and supply chain management. Chapter 18 addresses an unavoidable aspect of process evaluation via discovery, the effect of sampling. Finally, Chapter 19 discusses the process of identifying nonconformities in discovery and how to assess them.

Appendices A through F provide certain basic information to the reader in those subjects that are essential to forensic systems engineering and analysis. Appendices A and B are detailed accounts of engineering issues that occur more frequently in contract litigation than others. Appendix A concerns design and development; Appendix B concerns product reliability and should be considered by the reader as a prerequisite for Chapter 10.

Appendices C through F address the statistical nature of production and service processes and the fact that a forensic audit of discovery is effectively a sampling process. Therefore, the procedures of sampling and of statistics apply. These appendices, too, should be perused before Chapter 18, and they would be helpful in understanding Chapters 13 through 16. These latter chapters introduce the subject of risk, which is a probability, and employ various mathematical models of random variables.

Definitions and Terms of Art

One of the things that I admire about the profession of law is that when a specific idea requires a unique definition, it is expressed in Latin. Examples abound: nolo contendere, habeas corpus, qui tam, and so on. The terminology is effective because it is constant over time and does not compete with the common language. Unfortunately, engineering lacks this insight. When engineers want to express a specific idea, they borrow terms from the common language even though the engineering definition may have little to do with common understanding. One example will suffice. A system is called controllable if it can be taken from an initial state to any other state in finite time. I have witnessed a meeting at NASA aborted because someone used the word "controllable" in its general meaning, thereby confusing the conversation.

In addition, even terms within engineering context vary in their meaning, depending upon the audience. The meaning of terms such as production, operations, process, and system may differ from one group to another in the business and technical community. Therefore, to prevent confusion I have provided the definition of certain technical terms as they are intended in this book.

Discovery

Discovery is a pretrial procedure in a lawsuit in which each party in litigation, by court order, may obtain evidence from the other party by means of discovery devices such as documents, interrogatories, admissions, and depositions. The term "discovery" hence refers to the body of evidence available to each party in their pursuit of justice.

Production, Service, and Operations

For brevity, in this book the phrase "production or service" is called "operations." On occasion, I may use "production" in lieu of "operations," but only if the context is manufacturing. Or I may use the term "product" when speaking of operations in accordance with common usage. For example, I may speak of product quality or product reliability even though I implicitly include service, and ask the reader to bear in mind that service also has the traits of quality and reliability that apply to production. From a systems viewpoint, there is little or no difference between production and service. For this reason, for additional brevity I may use the term "unit" in place of the phrase "product or service." For example, I might say 10 units proved to be nonconforming to requirements. These units could be 10 jet engine fan blades or they could be 10 billing accounts, depending on the context of the discussion.

Management System

The classical role of management is described in five functions: plans, organization, coordination, decision, and control (Laudon & Laudon, 1991). It is reasonable to assume that a systematic approach to these activities will optimize the effectiveness and efficiency of their results. Such an approach is called a management system. The overall system includes structures for self-correction and for improving performance. The functions become subsystems of the management system, whose role is to achieve a synergistic direction to corporate goals.

With a system of management, operations can be conducted in an orderly fashion such that responsibility, authority, and accountability may be assigned with documented procedures and traceable results. The documentation and traceability do more than provide a basis from which risk assessment and methods of improvement can be made. They also provide forensic evidence if litigation arises. The evidence may support the defense or the plaintiff, depending on its nature.

The effectiveness of management will be a result of this system. Critics claim that too strict an adherence to formal procedures will stifle innovation. On the other hand, no system at all invites fire drill modes and chaos. Forensic systems engineering will measure the effectiveness of a management system in litigation by its conformity to contract requirements. The justification for this strategy is developed throughout this book.

Performance Standard

A management system has both form and substance. The form might derive from a standard of management. In this book, frequent reference is made to standards of management whose objective is the effective performance of operations in assuring the quality of the product or service rendered. Systematic operation is essential to effectiveness and can be enhanced by management standards. Such a standard is often called a quality management system (QMS) because its purpose is to improve...