Lawsuits relating to hydrogeology, ecology, soil and groundwater contamination, contaminant migration, site remediation, vapor intrusion, health and safety, hazardous chemical exposure, and contaminant exposure risks involve complex scientific concepts. As the environmental expert witness, your job is to not only develop a comprehensive understanding of the facts and issues relating to the lawsuit, but present expert testimony so the judge and jury can understand it. An attorney can help you do this.
Most environmental consultants strive to become “trusted advisors” for their clients. When you provide environmental litigation support, it becomes even more important to work toward that goal. In addition to the tips you might receive from the attorney, I offer you the following advice to help cement the attorney-environmental expert witness relationship. I’ve offered advice for attorneys and how they can help their environmental expert witnesses in another post: “8 Tips to Increase the Odds of Winning Environmental Lawsuits by Working with Your Environmental Expert Witness”
| 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 stick with what I do well, and leave the attorney job to others. These comments are 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. Listen to the Attorney
The attorney is the boss. Listen, do what is requested faithfully and diligently, and trust the attorney’s judgment. You are not privy to everything the attorney knows about the case, and a decision may be made you don’t agree with (e.g., settling a case you are convinced is a “sure winner”). Live with it. If the you are asked to do something different than what I advise, LISTEN TO THE ATTORNEY, not me.
2. Organize and Review the File
Your role as an environmental expert witness needs to begin with a thorough file review and assessment of the technical strengths and weaknesses of the case – even if you’ve worked on the project for years, and have years of experience as an environment consultant. An important goal should be to make sure you can quickly find that the geologic reports, analytic data, maps, figures, correspondence, environmental agency filings, and other documents regarding site investigations and remediation while you are testifying. A well-organized file is critical. If you gather additional forensic evidence, such as professional publications, be sure to provide copies of these to the attorney.
3. Be Clear about Your Expertise
Environmental science is an interdisciplinary profession. If the case centers on only a few technical issues, you may be the only environmental expert witness. Few individuals, however, have the broad knowledge to fully support complex litigation requiring testimony in multiple, diverse scientific disciplines without help from others. If you believe you’re not fully qualified to testify about matters requiring the expertise of a specialist (e.g. laboratory chemist, groundwater modeling specialist, toxicologist, air quality expert, biologist, industrial hygienist, wetland specialist), advise the attorney about your concerns.
4. Evaluate Whether Additional Data Is Needed
You may be asked to serve as the environmental expert witness for a case in which the environmental testing and other field work has been done by another environmental consulting firm. Sometimes useful information about the site history, hydrogeology, or soil and groundwater chemistry may be missing, or the data is so old it may not represent current environmental conditions. Discuss your concerns with the attorney, and help the attorney evaluate how the missing data might affect your testimony and the case.
5. Keep Quiet
Being designated as an “expert witness” is an honor. Suddenly you’re recognized for what you know! But you can’t talk about it. A consultant should never discuss the case with anyone else, including the boss, a spouse, or a best friend without the attorney’s consent. Don’t even discuss the case with the attorney’s client without permission. If your staff is involved in preparing for the case, make sure they abide by the same rules. You will be given the opportunity to demonstrate your expertise at the appropriate time.
6. Tell the Truth
Every case has two sides. You may certainly interpret the data and facts differently than another expert, and advocate professionally for the court to adopt your opinion, but you must present the data and give your opinion truthfully. Lying, misrepresenting facts, or failing to tell the whole truth during a deposition or trial may be considered “perjury.” Your professional reputation is everything. Don’t risk it.
7. Don’t Destroy or Hide Any Documents or other Potential Evidence
Don’t discard anything related to the case without first discussing it with the attorney. This includes documents, correspondence, samples, etc. In some cases, it might be acceptable to discard the draft of a document, but be sure to check with the attorney first. If you have three copies of the same document in the file, it’s acceptable to only keep one in the main file; keep the other two in a “discard” file until you’re advised what to do with them. Don’t hide or destroy a document regardless of how harmful it might be for your side of the case.
8. Prepare to Testify about Any Damaging Data
Make sure you’ve looked at all of the data, including the data you find damaging, and be prepared to articulate why the data you’re using is more reliable than the damaging data. If you can’t, discuss this problem with the attorney you’re helping. You might have to testify about it, but at least the attorney is prepared. Attorneys never like surprises, especially at depositions or trial.
9. Don’t Use Analogies
Sometimes it’s tempting to explain something through an analogy (e.g. “water flows through a pipe the way electricity flows through a wire”). The analogy may make sense to you, but it rarely adds to your testimony. More often, providing an analogy opens you up to having to testify about the subject matter of the analogy. (Are you also an expert in the transmission of electrons through wires? Does it matter if it’s a copper wire or an aluminum wire? Are you talking about AC current or DC current? How do you measure resistance in a water pipe? Are inductive currents created around a water pipe when water flows through it?) Don’t use an analogy unless you’ve discussed the idea with the attorney, and the attorney approves it. Again, attorneys hate surprises.
10. Be Kind to the Court Reporter
Court reporters are responsible for turning what you say during a deposition or trial into a written record. They may not have familiarity with some of the technical terms you will be using. Bring a list of technical terms and words you might use during your testimony to all depositions or court proceedings, and after approval by the attorney, give it to the court reporter. This will help the court reporter create a much more accurate transcript of what you say. The court reporter only needs to know what the words are, not what they mean.
11. Take Your Time to Answer the Question, Speak Clearly, and Deliver Your Answers in Complete Sentences
If you’ve ever read the transcript of a deposition given by someone who doesn’t understand these three rules, you’ll know what I mean. Few of us are always as articulate as we’d like to be. Take your time to answer the question, formulate your answer in your head, and then deliver the answer clearly and accurately. If you need to pause before or while answering, do so, but don’t say “Uhh.” It will end up in the transcript. A 30-second silent pause while you think does not.
12. Correct Your Mistakes
If you discover you’ve said something erroneous during a deposition or trial, discuss the error with your attorney, and then correct your mistake so that the correct information ends up in the deposition or trial transcript. That way it can’t be used against you at a later time.
13. Don’t Let the Attorneys Get to You
The expert witness role can be stressful. Although the attorney on your side of the case may treat you well, the job of the attorneys on the other side of the case is to discredit you and sometimes to shake your confidence. Don’t take it personally, and don’t let them rattle you. If the attorney wants question you as a “hostile witness,” it doesn’t necessarily mean you’re behaving badly. (Wikipedia has a good definition for the legal term “hostile witness.”)
14. You Have Control
If while testifying you need to take a bathroom break, consult with the attorney on your side, or just get some fresh air, just say so. You are not a prisoner.
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Good luck with your work as an environmental expert witness! With proper preparation, it can be a rewarding experience in challenging you to think about how another entity will think about your work, your knowledge, and your expertise, and delivering strong, effective testimony that allows you to present the technical facts and your opinions that bolster your client’s position.