General Practice, Solo & Small Firm DivisionBest of ABA Sections

FALL 1997

Natural Resources, Energy & Environmental Law

The Use of Experts in Environmental and Natural Resource Litigation and Enforcement Matters

Mark D. Coldiron and Connie M. Bryan

Environmental and natural resource litigation and regulatory enforcement matters almost always require you, as the lawyer, to enlist the assistance of experts. Experts are vital not only for proving a case at trial but also for proper case analysis, evaluation, and settlement. Experts help the lawyer develop a working knowledge of the complex scientific, technical, and regulatory issues. An expert can also assist in developing case strategy, analyzing and modeling data, educating the lawyers, and selecting and preparing other experts, or researching and performing experiments.

The expert selection process should begin as soon as you are retained in an environmental case. The expert consultant, with your guidance, can review historical and technical data and environmental laws and regulations relevant to the case. Using this information, the expert can assess regulatory enforcement issues, permit questions, cleanup standards, and potential liability issues. This early assessment will help you properly analyze the case and focus attention on the real issues, including those that are troublesome for your client.

An expert consultant can also assist in identifying evidentiary needs and in developing a discovery strategy. With knowledge of the historical background of a particular site, the expert can make recommendations for additional testing to fill in the data gaps necessary for a thorough analysis of the case. Once documents and answers to interrogatories have been produced by the opposing party, the expert consultant can help assess the completeness of the discovery responses. He can identify documents that have not been produced but likely exist based on other available data.

Finally, experts can give valuable assistance in preparing reports, opinions, and exhibits. If the expert consultant and expert witness are different, the expert consultant can act as a liaison between the attorneys and the expert witness and coordinate the consultant’s work with that of the expert witness.

Recognizing the valuable role experts can play in the preparation and presentation of a case is only the first step. The next step is finding an expert who is a perfect fit for your case. Contacting other environmental lawyers is an excellent referral tool. Also, seminar speakers often can refer you to qualified experts in their fields. References for experts are also available from professional associations and expert-witness databases maintained by various bar associations and by LEXIS/NEXIS and WestLaw and other on-line services.

Because the selection of experts requires time, energy, and money, it is important to involve the client in the selection process. After identifying the names of potential experts in the needed fields, you should obtain a firm brochure and curriculum vitae. After any conflicts are resolved, in-person interviews should be conducted.

The most important factor for choosing an expert is credibility. The expert’s credibility will determine the reliability of his opinions and, ultimately, how persuasive he will be at trial. An expert’s credibility will turn on: (1) the expert’s "teaching ability" and communication skills; (2) the expert’s age (a more mature person gets a better reception than a youthful expert); and (3) the expert’s experience and qualifications.

The expert’s qualifications, also known as the "prestige factor," may be a key in the judge’s "gatekeeper" role mandated under Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2792–94 (1993). Under Daubert, prior to admission of the expert’s testimony, the judge must determine the "reliability" of that testimony using a variety of factors, including the expert’s methodology. Id. at 2796 (the court’s list of factors is not intended to be exhaustive). The expert’s qualifications, stature, and reputation in the scientific community should go a long way toward establishing the "reliability" of his methodology and testimony. See Admissibility of Expert Testimony After Daubert: The "Prestige" Factor, 43 Emory L.J. 867 (1994).

Prior to final selection, a complete check of the expert’s references and review of his prior publications, depositions, and trial testimony will alert you in advance to potential problems.

You may also want to inquire as to any suspension or disciplinary action taken against the testifying expert by his professional association and ask about any other circumstances that may affect the expert’s credibility. It is also helpful to call other attorneys with whom the expert has worked.

As soon as you have selected the expert, you will need to negotiate a consulting agreement. The agreement should define the expert’s fees, the scope of work, and the structure for protection of attorney work-product and confidential attorney-client communications.

 

Confidentiality Concerns. An expert should be advised early that anything put in writing may be subject to discovery. See generally Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d, §§ 2029–34 (1994 & Supp. 1995). Therefore, the expert should prepare reports only when required and only after reviewing the opinions with an attorney. Any investigation by consultants on environmental matters, whether in a regulatory or civil context, brings the risk that the results will be discoverable. Complex laws relating to confidentiality in the corporate setting prevent a guarantee that the confidentiality of any particular site investigation can be maintained. See United States of America v. The Dexter Corporation, 132 F.R.D. 8 (D. Conn. 1990). With careful planning, however, the attorney-client privilege and the attorney work-product doctrine will likely protect some, if not all, of the investigative results.

Environmental statutes and their implementing regulations all contain requirements for reporting compliance information and for notifying authorities immediately in some circumstances. It is essential that clients understand the statutory obligations to report certain environmental information and the liability for the failure to report or for reporting false information.

 

The Role of the Expert at Trial. Before testifying at trial, your expert must establish his qualifications: education, training, professional experience, and relevant publications all serve this purpose. When the expert offers this information at trial, however, it often comes across as self-promotion. To avoid this perception, let the expert’s qualifications come out of the lawyer’s mouth in the form of leading questions. Most courts allow you to do this as an efficient method for introducing background information into evidence.

Regardless of the subject matter, your expert must not sound like an expert: he must be a teacher explaining everything in the simplest of terms. The lawyer should always take an active role in preparing the expert for this task. The first step in preparing an expert for trial is to provide him every piece of evidence critical to his opinion. One area often overlooked is the expert’s actual knowledge of a site’s characteristics. Accordingly, every expert witness must visit the site prior to his or her deposition or trial testimony.

The expert witness and the expert consultant are vital to an environmental and natural resource case. You must be careful to locate experts who exude credibility and avoid those who tend to only "tell you what you want to hear." A carefully chosen panel of experts will not only help you prove your client’s case at trial, but also help you understand and analyze the issues so that you can be an effective advocate for your client.

Mark D. Coldiron and Connie M. Bryan are shareholders and directors at McKinney, Stringer & Webster, P.C., in Oklahoma City.

This article is an abridged and edited version of one that originally appeared in Natural Resources and Environment, Summer 1996 (11:1).

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