By Henry Nowicki & Barbara Sherman
This article provides the water industry professional interested in becoming an ‘expert witness’ with introductory information to build their usefulness to an attorney and provides a guide to the vocabulary and processes that are part of working with legal counsel.
Types of attorneys
For our purposes, there are two types of attorneys: litigators and trans-actionals. Litigators sue people. Their arena is the courtroom and their mindset is how to destroy the other side’s position in order to achieve victory for their client. Their ‘conqueror’ mentality can make working with them stressful, but exhilarating at the same time. Alternatively, transactional attorneys typically work for their clients to complete a deal, sale, lease, infusion of cash or property financing. They work in the transactional ‘real world.’ Their mindset is to do what is necessary to best represent and protect their clients’ interest and hopefully facilitate completion of the desired transaction. Their goal is to put the deal together.
Working with attorneys
Owners, scientists and engineers have a good chance of becoming involved in technical litigation. Testifying as an expert witness or working on cases involves, for example, personal injuries, product failures or allegations of gross negligence. Either the defense or the prosecution can retain expert witnesses and it is not unusual for both sides to employ experts to help make their case. Often these experts have little experience with the legal process where almost invariably large sums of money and reputations are at stake.
Working with lawyers is a challenging experience for water and other environmental professionals. The professional, as technical expert, gathers, reviews and synthesizes technical data pertinent to either quantify risk in a property transaction or to successfully pursue or defend a lawsuit. Whether functioning as a testifying or non-testifying expert, the environmental technical specialist provides the attorney with the needed experience to help them be successful in their case.
Whether you are an internal environmental manager, a consultant or other environmental professional, if your firm is in some way involved in litigation, you will likely have occasion to work with attorneys.
The role of the attorney
An attorney involved in an environmental matter will usually act as a gatekeeper for the various activities being conducted. If you are working for a business entity that is involved in a lawsuit, it can be comforting to know that they’re watching out for everyone’s best interest…at least everyone on the lawyer’s side of the fence.
The attorneys with whom you will work will likely be either environmental or real estate attorneys. Typically, the role of the real estate (transactional) attorney is to facilitate the desired real property transaction. For example, such an attorney may retain a consultant to conduct a Phase I environmental site assessment of the subject property. Upon completion of the Phase I, the attorney will discuss any identified or potential environmental concerns with the consultant. After the attorney understands the environmental liabilities, the consultant’s role is usually complete.
Some cases take only a few days of your time but other cases go on for years. The attorney needs to inform you of the expected duration of the case. Once you agree to be an expert witness, you will need to be flexible and meet the timing demands of lawyers for reading depositions, site-visits, preparing defensible reports and giving your deposition and courtroom testimony. Typically, lawyers want tasks completed quickly with high quality. You can expect a call that the lawyer needs a report in just a few days. The attorney needs to provide the expert an expected timeline for tasks. Good attorneys are selective in the materials and quantity of documents they send to the expert for forming their professional opinion. However, the expert should never prepare a written report until asked, as all written material is discoverable.
The attorney lays out the key issues in each case. The expert should provide additional issues and their advice to the attorney. The expert who identifies other issues should ask the lawyer if he wishes such additional issues be raised or noted. In certain environmental cases any such additional observations by an expert must be disclosed. The expert is hired due to relevant special knowledge. It is important for the expert to realize the lawyer determines the issues and should not be disappointed when their own ideas are shot down. Lawyers typically choose a few issues in order not to confuse the decision makers and can build a fortress around their issues, which are hard to destroy by opposing lawyers.
Being deposed means that one is asked to give answers under oath. An opposing attorney may want to establish the inadequacies of one’s work background or performance. Specific questions might relate to an expert’s education, publications, lectures, prior involvement with law firms, compensation and the like.
The questioning attorney will try to freeze the expert into certain positions on all relevant facets of a case and then explore the adequacies or inadequacies of the expert’s investigations, the correctness of assumptions, the titles of books and articles consulted, etc. Much time is spent on obtaining concessions from the expert; if the expert is ever trapped in a contradiction, the questioning attorney may ask to have the expert impeached, that is, have their testimony discounted.
The role of the expert
Of course, the attorney is the legal expert. The environmental professional is someone adept at one or more technical disciplines. Depending upon the issues involved, the attorney will direct the expert to complete the needed tasks to develop the facts necessary for the litigation or property transaction.
Keep in mind that it is a team effort and that the lawyer needs the technical support of environmental professionals. Even if lawyers have adequate scientific knowledge due to the experience of prior work or education, they generally cannot testify as to the facts in their case, hence their need for technical assistance from experts.
Environmental litigation support can cover a wide range of services to provide whatever technical assistance the attorney may require. This may include normal field sampling and analysis services, but with the lawyer’s oversight. Document review provides the attorney with an unbiased interpretation of the facts. The environmental professional may help the attorney draft or review interrogatories, which are questions that are asked of a witness under penalty of perjury. They may assist during the taking of a witness deposition. This can include providing technical questions or actually sitting with the attorney at their side during the deposition to provide on-the-fly technical input. You may be called on to prepare or review affidavits and statements of fact and opinion, which are made under penalty of perjury. You might also be called to serve as an expert in the courtroom.
The designated expert
There are two general types of experts in litigation: testifying and non-testifying. A testifying expert is one who has been retained to provide an expert opinion at trial. If you have been designated as a testifying expert, the attorney will at some point have to disclose your name, your prior testimony in the last five years, your resume and your billing rate to the opposing counsel. If you are a non-testifying expert, there are many ways to assist counsel in preparation of their case, as have been discussed above. You could even function as the attorney’s right hand to review and interpret technical data and strategize with counsel as to how best to bolster the client’s case or to identify and capitalize on weaknesses in the opposition’s case. Litigation is fact-based and as an expert your role can be critical to the success of the case.
Experts need payment for time
Prior to commencing any work for an attorney, make sure that you have a written agreement in place. Lawyers need to know what you charge for office work, travel time, laboratory testing and providing courtroom testimony. Litigators are often aggressive in how reports should appear and have individual needs. To avoid this problem, the expert needs to discuss the writing plan before beginning. If the lawyer wants a revision, the expert needs to clearly reveal that this is a second version and maintain the original. This helps to avoid lawyers creating credibility problems for the expert. The expert’s goal is to write one report expressing their independent opinions based on facts and experience. Well-written reports enable most law cases to be settled out of court. Monitor your account receivables closely. It is not uncommon for experts to be retained by a law firm but to have the bills paid by a third party, such as an insurance company, or by the lawyers’ clients, which could take months.
Remember: experts get paid for their time, not for testifying. The judge and jury recognize that experts are paid well for their time. When you appear in court you need to know the total charged for your case time.
We recommend that you agree to get involved in litigation support only in causes and subjects that you have mastered. Above all, be convinced that sticking to the truth will never fail you, but becoming an advocate of anything other than the truth may cause serious grief.
We have recently published articles and also teach on this subjectsup1-3/sup. Those who would like reprints should contact [email protected]. com for copies. The Daubert article1 covers liabilities of the expert witness and the preparation article2 covers what you can expect as an expert witness in a typical legal case. Dr. Nowicki presents a one-day course3 in major cities to help scientific experts to perform better.
- H.G. Nowicki and T. Bright. “Expert witnesses face new risks.” American Laboratory. January 2004 pages 16-18.
- H. Nowicki and B. Sherman. “So You Are to Be an Expert Witness.” Chemical Engineering. July 2005, pages 48-52.
- PACS short course instructor, H.G. Nowicki “Expert Witness and Legal Case Support Work Practices for Scientists”. Visit www.pacslabs. com for course description and locations.
About the authors
Henry Nowicki, who holds a Ph.D. in biochemistry and organic chemistry from St. Louis University and a masters degree in business from Robert Morris University, has published more than 100 technical articles and has been an expert witness 40 times in a wide variety of cases. He also provides laboratory testing and consulting services to large and small firms throughout the chemical process industries. Nowicki is a recognized expert in activated carbon and environmental sciences, and manages the PACS Testing and Consulting business. He can be reached at [email protected]
Barbara Sherman directs the short courses and conferences offered by PACS. Seven short courses are available for the activated carbon industry. The “International Activated Carbon Conference and Courses” programs are provided each October in Pittsburgh, Penn., and March in Orlando, Fla. She can reached via email at [email protected] or at (724) 457-6576. For additional information about upcoming PACS courses and training, visit www.pacslabs.com