A strong attorney-consultant relationship during environmental litigation can make the difference between the success and failure. Lawsuits relating to soil and groundwater contamination, hydrogeology, contaminant migration, vapor intrusion, hazardous chemical exposure, contaminated site remediation, hazardous waste disposal, and contaminant exposure risks involve complex scientific concepts. Selecting an environmental expert witness who can provide credible testimony is only part of an attorney’s challenge. Getting that expert witness to present the evidence in a way the judge and jury can understand it is even more important. Working together, attorneys and environmental expert witnesses can do this. Here’s how.
[I’ve created a second post with advice for environmental expert witnesses: 14 Tips for Environmental Expert Witnesses.]
| I’ve been a hydrogeologist and environmental consultant since 1981, and a licensed, but non-practicing attorney since 1989. I enjoy “knowing the law,” but have stuck with what I do well, and leave the attorney job to others. I prepared these comments based on my experiences as an environmental consultant and expert witness in a variety of cases, and what I’ve learned from others. |
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1. Communicate with Your Consultant
Few environmental consultants understand what is expected of them when they serve as an expert witness. As best you can, communicate what you are hoping to learn from your consultant, what information you need, and how they can best communicate that information and their opinions to you. Consultants should know what the issues are, and understand their role in supporting your case. Discuss with your environmental expert witness ways to present the evidence through graphic figures, tables, or other “high tech” communication methods. Many environmental consultants have the ability to produce high quality graphic images and videos at moderate cost.
2. Discuss Your Case Strategy
Every attorney with whom I’ve worked has had a case strategy. Some attorneys discuss the strategy with me, which allows me to help the attorney identify any favorable or unfavorable evidence while reviewing the file and before testifying at depositions or at trial. Others keep their case strategy to themselves, and just communicate what they need me to testify about. I prefer being included in the discussions about the case strategy, and believe my work as an environmental expert witness is more effective when I am. I work well with attorneys who “keep their cards close to their chest,” but advise them to consider making me a more integral part of their team.
3. Organize the Files
| If I receive a file that hasn’t been organized, my first task is to sort the documents by date and/or subject matter, extract and set aside any duplicate document copies, convert the documents into PDF files, and create a “PDF portfolio” using Adobe Acrobat. The PDF portfolio allows me to quickly and automatically create an index identifying the date, author, document title, subject matter, and type of document. I can also group documents that are best reviewed together, and run key word searches to find information buried in documents. |
For an environmental expert witness, every new environmental case must begin with a thorough file review. Hydrogeologic studies, environmental risk assessments, and contaminant investigations generally are completed in multiple stages, and often by more than one consultant. The geologic reports, analytic data, maps, figures, correspondence, environmental agency filings, and other documents regarding site investigations and remediation must be organized and understood to grasp all that has occurred before an opinion is formed.
The file can be organized by either the expert witness or the attorney. It doesn’t matters who, but I advise attorneys and environmental experts to discuss how. I also recommend an inventory of the critical documents be prepared and carefully checked by both the attorney and expert. You don’t want to learn during a deposition or trial that critical documents in your or your expert’s files are missing . If your environmental expert adds documents to the file, such as outside research papers, these also need to be indexed, and copies should be sent to you.
4. Identify What Expertise is Needed for the Case
The U.S. Supreme Court’s 1993 decision in the case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 584-587 was a benchmark ruling regarding the admissibility of scientific expert testimony at trial. Daubert makes the judge the “gatekeeper” in assuring that scientific expert testimony is based on scientific knowledge. In a future post, I will discuss my perception of how Daubert and other cases might affect how scientific evidence is presented by an expert during toxic tort and other environmental lawsuits.
Environmental science is an interdisciplinary profession, as demonstrated by the diverse backgrounds of those who claim to be “environmental consultants.” You might hope that the environmental expert witness you selected knows everything. If the case centers on only a few technical issues, one environmental expert witness might suffice. Very few individuals have the broad knowledge to fully support complex litigation requiring testimony in multiple, diverse scientific disciplines. Be wary of anyone who claims they are an expert in all areas.
Attorneys are advised to carefully consider the Daubert Standard and applicable state and federal evidentiary rules (e.g. Rule 702 of the Federal Rules of Evidence) when deciding whether one environmental expert witness alone has the requisite scientific background to withstand Daubert challenges. Sometimes other experts are needed to support the evidence: laboratory chemists, groundwater modeling specialists, wetland specialists, toxicologists, air quality experts, biologists, industrial hygienists, and possibly physicians. These “supplemental” expert witnesses need to be vetted and identified during discovery. Alternatively, the attorney might negotiate a stipulation with opposing counsel so that testimony isn’t needed to support issues such as the validity of laboratory analytic data, or the legitimacy of a groundwater modeling technique.
5. Decide Whether Additional Data Is Needed and Allow Time for it to be Collected
I’m regularly pulled into a case after most of the environmental testing and other field work has been done. I hope the test data and reports from other environmental consulting firms are good enough for me to reach a solid, science- and data-based opinion. Often, however, very important information about the site history, hydrogeology, or soil and groundwater chemistry is missing. For example, the consultant may have focused solely on contamination resulting from the most recent uses of the site. A historic investigation comparable to a Phase I ESA might reveal other on-site or off-site sources of the contamination, and potentially reveal the existence of other PRPs. Sometimes the data is very old and contaminant concentrations might have changed due to natural attenuation, thus new testing would help identify the current environmental conditions.
Rarely is a new comprehensive investigation needed. The attorney and the environmental expert should together decide whether and what additional data is needed to support the case. It’s the attorney’s job to ensure time is available within the discovery period to gather the data, and sometimes to make arrangements for the consultant to access the site.
6. Discuss Whether Your Environmental Expert Should Make Notes
Some attorneys don’t want their expert witnesses to write notes to avoid the risk they might need to be produced during discovery. Other attorneys don’t seem to mind. Although I prefer to keep notes since it helps me sort information as I review documents and formulate my opinion, I of course respect the attorney’s decision.
7. Educate the Environmental Expert Witness About the Rules of Evidence
Few consultants understand the Rules of Evidence. The attorney must tell the consultant what evidentiary documents must be retained, whether any documents can be destroyed, and the procedures for the consultant to archive or transmit any created documents. A common question is whether drafts of figures, tables, and written correspondence between the environmental expert witness and attorney must be retained.
8. Prepare Your Environmental Expert Witness for the Deposition and Trial Testimony
Although an attorney can’t tell an expert witness what to say, they can work with their experts to strengthen the testimony given during depositions and at trial. Some experts don’t know how to present evidence, what to expect, and how to explain technical information that a judge and jury can understand. The attorney can help with this.
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When an attorney and environmental expert witness work together, the opportunities for unanticipated evidence or issues to emerge during a deposition or trial are reduced, your environmental expert witness can deliver stronger testimony, and the likelihood of success is increased.