Experts are those persons who have special training, skill, education, or expertise beyond the experience of ordinary members of the public. Lawyers involved in environmental litigation use experts in a variety of ways and a new expert should understand what type of expert they are asked to be.
By Marc J. Rogoff, Ph.D
Your phone rings or you get an e-mail from a lawyer colleague who did some research on the Internet and found a recent article that you have published. He or she is wondering whether you might be a key to their recent legal case, either providing answers to research or serving as an expert in his or her legal proceeding.
I have worked for more than 40 years in the solid waste management industry and have provided my opinions on solid waste topics in more than five hundred consulting engagements in 48 states, three hundred publications in the trade press, and authored eight textbooks. Some consider me an expert on this subject.
However, like many environmental professionals, my knowledge base of the legal profession and civil trial procedure has been quite limited, fashioned on what I picked up in watching re-runs of Perry Mason, inhaling the series of John Grisham novels, catching up on Law and Order, watching trials played out before the American public, and what I was taught in my high school civics lessons. So, my experiences being engaged as an expert witness has been an educational one and I have learned that much of what I thought I knew about how expert testimony works in a legal proceeding is quite different.
I have prepared this article to provide other experts who may be in the same situation with some information and lessons learned in the hope that it is helpful as they wade into the expert testimony waters. A few years ago, I authored an article for a statewide environmental organization, and now updated it based on my recent experiences as an expert. If you are already an accomplished expert witness, this article may be a refresher. However, if you are new to the expert witness arena, this article is for you.
A First Step
Recently, I received a telephone call from an attorney inquiring whether I might be interested in serving as an expert on a major lawsuit involving his client; I was intrigued. His client was aware of my lengthy career and reputation in the solid waste management industry, and I liked the idea of being considered and serving as an expert in such an important case. But, at the same time, I was concerned about the prospect of being cross-examined and picked apart on the stand during the trial like I have seen happen to witnesses so many times in popular media.
To make an informed decision about whether to accept this expert engagement, I interviewed my firm鈥檚 legal counsel, talked to friends who had served as experts, and researched whether my firm, Geosyntec, had any potential conflicts of interest in my taking on this assignment. After confirming that there were no conflicts and receiving the advice from my support team, I decided to take the plunge and accept the expert engagement. As a first step, I sought information targeted at someone like me to provide a general overview of what I can expect to transpire and what my role would be during the upcoming civil proceeding. Unfortunately, there is little, if anything, written for the non-lawyer on expert witnesses. The following sets forth the lessons learned, or if you will, a basic summary of the civil process and the role of the expert in such cases.
What Is an Expert Witness or Consultant?
In general, experts are those persons who have special training, skill, education, or expertise beyond the experience of ordinary members of the public. Lawyers involved in environmental litigation use experts in a variety of ways. For example, the expert or consultant may serve solely to evaluate the case and help determine whether the claim has merit. They may conduct onsite, or laboratory testing to prove or disprove a point or help build or defend the case. In other cases, the expert may serve solely as an expert witness at the trial. The major takeaway here is that experts are used in a variety of ways and that a new expert should understand what type of expert they are asked to be.
Discovery
American jurisprudence provides a formalized process for collecting relevant data and information during a legal proceeding. This process, typically described as 鈥渄iscovery鈥�, is designed to provide the defendant and plaintiff with the same information so that they are working from the same factual basis. As an expert, there will be a formal process for how you get your information. You need to understand that process. In general, you need to keep track of all the information you review and provide references to all documents used as a basis for your opinions. Any documents that you generate during your engagement may need to be provided to the other side (subject to certain expert disclosure restrictions). Federal Rule of Civil Procedure 26 covers discovery and expert discovery; Cornell has a good excerpt here: www.law.cornell.edu/rules/frcp/rule_26.
Pleadings and Motions
Pleadings and motions are written by lawyers. Experts may be asked to provide consultation and/or support to certain aspects of these, which may be included as attachments. Often, it is helpful for the expert to review these pleadings as they provide good background information鈥攊n some cases that has been stipulated by both sides. The plaintiff has the burden of proof in the lawsuit. Again, the expert can be helpful in developing the formal complaint or crafting the
answers.
Expert Reports
Experts are used in litigation to help the judge or jury鈥檚 understanding of the facts of the case. In this way, they can first help to establish and interpret the pertinent facts of the case by sifting through the often-voluminous amount of paper obtained during discovery. Calculations, articles, and memos used to develop the expert report as well as the report itself, must be made available to the opposing side. There are certain requirements on what must be included in expert reports鈥攖his can vary by area. In general, the expert must include all opinions and the basis for the opinions, including necessary references. A good technical editor can help immensely in preparing a concise expert report.
Daubert Standard
In 1993, the United States Supreme Court set a new standard for expert testimony in the case of Daubert vs. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This standard listed a non-exhaustive list of factors, including general acceptance in the scientific community, that the courts may consider when they decide whether to admit expert testimony. These include five basic factor to consider:
- Whether the expert鈥檚 technique or theory can be tested and assessed for reliability
- Whether the technique or theory has been subject to peer review and publication
- The known or potential rate of error of the technique or theory
- The existence and maintenance of standards and controls
- Whether the technique or theory has been generally accepted in the scientific community
The intent of the court was to provide basic factors for judges to consider in the Federal courts, although many states have enacted bills to adopt the Daubert standard in state trials as well.
Depositions
The 鈥渄eposition鈥� is a direct way to gather evidence for trial from anyone with any relevant knowledge of the case, including the experts hired by either party. Witnesses are sworn to tell the truth by a court reporter and a transcript is prepared. Questioning is designed to probe the expert鈥檚 biases, potential weaknesses, and to accelerate the expert鈥檚 learning curve on facts surrounding the case or the industry in general.
Tip for Testifying sidebar contains some useful tips for experts. Be prepared. Prepare for a long day鈥攔est and eat. Remember to speak clearly and verbally (no hand signals). Make sure you understand the question and then only answer that question. Pause after each question is asked to allow counsel on your side to object if needed. Spell out complicated words and define acronyms for the reporter. Avoid verbal tics (ums, uhs, likes)鈥攊nstead, pause.
Tips for Testifying:
1. Tell the truth and nothing but the truth. Careers and cases have ended when untruths are given in depositions or at trial.
2. Think before you answer. Take time to consider your answer. This will at least allow your attorney enough time to object to the question or line of questioning.
3. Answer the question asked. Even if you think the question is not relevant, do not follow-up with the question you think the examiner should have asked.
4. Do not volunteer information. Quite literally answer the question asked and then stop. It is not your role to educate the examiner. Once you have answered, remain quiet. The examiner will use the pregnant pause and stare at you to get you to further elaborate on your testimony.
5. Do not answer a question that you do not understand. If you do not understand the question, tell the examiner that you do not understand the question. Ask him/her to rephrase鈥攊t is not your job to ask the questions!
6. Do not guess. Be as specific as you can, but never guess. If you cannot recall, tell the examiner, that you cannot remember.
The Trial
At trial, the expert witness will be used in direct examination to lay out the facts of the case and the story in terms a lay person can understand. The role of the expert is to unravel the mysteries of the case in terms of their special expertise. Know the trial exhibits that your counsel plans to use to guide your testimony. Be ready for clarifying questions from the judge and address them respectfully and directly.
Settlement
Prior to and during the trial there is always a possibility that the parties can negotiate an amicable settlement. In this case, they would jointly inform the presiding judge that the case has been settled. Therefore, from an expert鈥檚 perspective, all papers used in preparation of the case must be preserved until the case is settled.
A Personal Side
A Federal case for which I served as an expert witness for three years involved claims of tens of millions of dollars. Both parties had invested millions of dollars in researching their complaint and defense as the case weaved its way through the Federal district court system. Experts on both sides provided focus for the case and eventually provided a mechanism by which both sides evaluated the merits of their case and preparation prior to trial. This eventually translated into a decision to settle the case before opening statements were made to the jury.
Having never served as an expert witness before this case, I was a little anxious about testifying in court. And yes, I was happy when the case was settled! However, the training and advice given to me by the defendant鈥檚 counsel during my engagement gave me invaluable insight and experience for future situations. I expect that my expert report was helpful in narrowing the gulf between the two sides and supporting the progress toward a settlement, resolving the dispute, and freeing up valuable court time.
Best of luck to all of you new expert witnesses. I hope my sharing of this experience and information helps you successfully navigate the process. | WA
Marc J. Rogoff, Ph.D. is a Senior Consultant with Geosyntec Consultants. He has served as an 鈥渆xpert鈥� on a variety of cases both in state and federal courts in matters involving landfills, transfer stations, personal accidents, fatalities, industry standards of care, and applicable standards. These efforts have assisted clients in winning their cases by providing research, reports, depositions, and testimony. Marc can be reached at (813) 810-5547 or e-mail m[email protected].
References
Luber, Steven and Elizabeth Bales, Expert Testimony: A Guide for Expert
Witnesses and the Lawyers Who Examine Them, Lexis Nexus: National Institute for Trial Advocacy, 2014.
Rogoff, Marc J. So You Want to Be An Expert Witness, The Reporter, The
Environmental and Land Use Section of the Florida Bar, Vol 38, 3, June 2018