So you're gonna be a witness! Getting ready for the hot seat

• By Rex Hansen, PE
• Apr 01, 2000

In our highly litigious society, every environmental professional should anticipate that sooner or later he or she will end up in the witness chair, counted upon to provide critical testimony while subjected to withering cross-examination and the uncomfortably-close scrutiny of a judge or jury. Some may seek the limelight as consultants and expert witnesses. Others will come to it reluctantly, compelled by circumstances to offer up their factual knowledge or opinions for public scrutiny.

Your time could come in a variety of settings, where the stakes can vary enormously, involving anything from a simple administrative permit proceeding to a high-stakes criminal prosecution with millions of dollars and jail time at issue. While movies and TV have led us to think we know what to expect, there are many surprises lying in wait for the inexperienced witness. It pays to understand how the process really works and to keep some basic tips in mind so you can make the most of your time in the chair.

Qualifications

Why do they want you as a witness in the first place? Witnesses know facts or have expert opinions that one of the parties wants to prove. Either side can compel you to testify if they think you have first-hand knowledge of key facts. This means you could be called as a fact witness by either your employer/client or by the opposition. However, if you are being used as a source of expert knowledge and opinions, you generally cannot be compelled to testify. Consequently, experts usually enter the fray voluntarily, because their employer/client believes their testimony will be helpful to their side of the case.

What distinguishes expert witnesses from fact witnesses? Experts are individuals who satisfy the judge that they have special knowledge, training or experience that can assist the fact finder (i.e. the hearing officer, judge or jury) in understanding complicated technical subjects that are not within the understanding of the average layperson. If this hurdle is cleared, the expert is allowed to do something no fact witness may do — give opinions. In other words, within his or her demonstrated area of expertise, the expert is allowed to express inferences and conclusions drawn from the facts presented by other witnesses.

Types of proceedings

Where will you testify? It is likely that you will be testifying in one of five different proceedings: an administrative hearing, a civil trial, a civil deposition, a criminal trial or a grand jury proceeding.

An administrative hearing is held before a state agency and could involve, for example, permit proceedings or enforcement of environmental regulations. It is presided over by an administrative hearing officer, who is usually the final arbiter of fact and law.

A civil trial is a proceeding before a court, presided over by a judge and may or may not involve a jury. If there is a jury, the jury members will decide on the facts and apply them to the law as it is presented to them by the judge. If the case is being tried without a jury, the judge will be the final decision-maker as to all disputed issues of fact and law. A civil case could involve a wide range of issues, ranging from citizen suits or agency enforcement actions for penalties or injunctive relief, to personal injury suits for damages to health or the environment, to disputes involving breaches of contract.

A civil deposition is an out-of-court proceeding where sworn testimony is recorded as part of the preliminary fact finding that parties to a civil suit engage in prior to trying their case before a judge in court. It can take place virtually anywhere the lawyers agree upon, including a lawyer's office, a company conference room, a hotel or your lab.

With increasing frequency, violations of environmental laws and regulations are being prosecuted criminally. Consequently, there is an increasing risk that environmental professionals may find themselves taking the witness stand in criminal trials, or in the grand jury investigations that often precede them.

Discovery tools

How does the opposition learn about what you will say on the stand? In civil cases, and to a much smaller extent in administrative and criminal proceedings, lawyers have the right to utilize procedures that compel the opposition to disclose what it knows about the case at hand in the months preceding the trial or hearing. These are referred to as discovery tools. During discovery, the parties gain information from each other using written questions (interrogatories), document requests (which can compel the opposition to produce any tangible object for copying and inspection) and depositions (where both fact witnesses and experts can be questioned under oath). They can also use discovery procedures to gain access to property (e.g. factories, accident sites). Generally speaking, attorneys are given wide latitude in the use of discovery tools if their requests are likely to lead to the discovery of relevant evidence.

You need to be aware that your lawyer may be compelled to disclose your identity, your general areas of knowledge and the substance of any opinions you may offer as an expert witness long before you take the witness chair in a deposition or trial.

Defending your testimony

Trial attorneys, both those who will be defending you and those attempting to discredit your testimony, pride themselves on their ability to become instant experts on narrow technical subjects. In fact, they strive to know the narrow issues in their cases better than the expert witnesses they expect to confront on the stand. Often, they succeed beyond the wildest expectations of the environmental professionals.

They do this by getting the assistance of other experts to teach them all the nuances of the very narrow technical issues in your particular case and by reading everything they can get their hands on that might be used to discredit your testimony. For example, I routinely prepare for the cross-examination of opposition experts by reading as many technical materials as possible on the issues at hand, with a focus on all the available papers, reports and testimony transcripts from other cases by the experts themselves. You have to expect that the attorney for the opposition comes to the deposition or trial knowing everything you have said or done in the past.

In light of the opposition's preparation, you need to at least match that effort. This means re-familiarizing yourself with any of your past writings that are in the public domain or that have been disclosed to outsiders during the discovery process. Bluffing your way through your testimony, depending on technical jargon to confuse the lawyers, will not work.

You also need to make sure the lawyer on your side of the case really understands the science behind your testimony and where any uncertainty and vulnerability may lie. If you are an expert witness, know which facts are crucial to your opinions, and how changes in the assumed facts could substantially alter your conclusions.

Tell your attorney how you would try to attack your testimony and what is right and wrong with that sort of attack. Play the devil's advocate with your own anticipated testimony. If your lawyer does not understand these things, he or she will not be able to protect you on the stand or correct any incorrect impressions that the opposition may have been able to create during your cross-examination. On technically complex issues, think of yourself as a teacher and the lawyers and jurors as students. Whenever possible, develop simple analogies to common events and experiences as the best way to get your testimony across to a less-sophisticated audience.

Finally, make sure that you and your lawyer have a clear understanding of the opinions you are expected to offer, and the "facts" you need to support them. Expert witnesses are usually given hypothetical questions, where they are asked to express opinions based on certain assumed facts. Make sure that any opinion you are asked to offer is truly within your area of technical competence, and that the assumed facts provide a defensible basis for your conclusions

Understanding your impact

Because the discovery process allows the opposition to delve deeply into the past for any and all relevant records, there is a significant chance that the crucial documents in a case were written years before anyone expected litigation. This means that the letters, memos, e-mail correspondence, reports and testimony you authored years ago may be discovered and used to discredit or constrain your testimony for decades to come. It also means that everything you say and do from this day forward should be done with at least one eye toward how it might be read or mis-read in the future.

Invariably, every case involves "bad" documents that will be difficult (if not impossible) to reconcile effectively with your testimony. Yet, these documents are almost always the result of sloppy wording or careless exaggeration that the authors never intended to be interpreted as they will be by the opposition.

In order to avoid creating a record that may come back to haunt you or your client/employer in the future, be aware that what you are doing at any point in time is only a part of a much bigger picture. Understand that whether or not your recommendations should be followed may depend on factors of which you are only vaguely aware. Consequently, do not write as though you know it all. For example, suppose you wrote that something "must" be done a certain way. Yet the company, with good reason, did it differently. Now your memo may make you the prime witness for the opposition and undermine your current (more informed) opinion.

The moral is simple. Assume that your recorded testimony, everything you write and everything that is written to you by professional colleagues, will be misread out of context years later in some hotly-contested lawsuit. Take care to write and testify carefully, accurately and unambiguously, with full articulation of assumptions and limitations on your present knowledge.

The deposition

In most cases, the deposition is initiated by the opposition, as part of its effort to find out what you will say in court and to prepare the traps for discrediting that testimony. As a consequence, the deposition usually starts with cross-examination by opposing counsel. In conducting a cross-examination, an attorney is allowed to use leading questions (i.e. those that suggest the expected answer) and to delve into anything that might be relevant to your expected testimony or any other aspect of the case — including anything that might relate to your background, preparation and objectivity.

It is important to recognize that what you say in the deposition will generally not be admissible in court unless you are unavailable to testify or your courtroom testimony conflicts with what you said in deposition. Consequently, depositions are normally viewed as beneficial only to the opposition. In other words, your side does not need your deposition in order to present your testimony in court. Normally, your side can only be hurt by what you say in deposition. Consequently, the less said in deposition the better. Simply answer the questions you are asked, and do not volunteer anything. This is not a time to educate the opposition attorney or to impress him with your knowledge.

However, there are rare occasions when your side may want to use your deposition to lay out a full and complete explanation of your testimony. This may happen when your side is so strong that an early demonstration of its strength may lead to a favorable settlement prior to trial. If this is the situation, your attorney will tell you in advance, and will use his or her own questioning to bring out all the favorable facts and testimony after the opposition has finished with its cross-examination.

The trial or hearing

Trial testimony follows a fairly consistent pattern. The questioning starts with the attorney from your side of the case. If you have factual testimony to offer, he or she will ask for your general background, lay the foundation for your knowledge of important facts, and elicit those facts from you. The opposition may object to some questions. With all objections, you stop testifying and wait until the judge rules on the objection. If he sustains the objection (i.e. agrees with it), the questioner will ask a new question. If the judge overrules the objection (i.e. rejects it), you will be told that you may now answer the question that was asked. At the conclusion of questioning by the attorney for your side, the opposition will be allowed to conduct cross-examination.

If you are being offered as an expert witness, your attorney will first attempt to have the judge agree that you are qualified to offer expert testimony in a defined area of expertise. In order to accomplish this, the attorney for your side will question you about your special training and qualifications. He or she will then ask the court to recognize you as an expert in some relevant discipline. At that point, the opposition will be allowed to cross-examine you concerning your qualifications. This is called voir dire, where the issue is whether you should be accepted as an expert, and, if so, in what areas of expertise. Once the voir dire is concluded, and assuming you have been accepted as an expert, your attorney will proceed to elicit your factual testimony and opinions. Cross-examination by the opposition will follow.

Improving your performance

• Listen very carefully to each question, and take your time in responding;
• Ask for clarification of any question you are unsure about. Simply say you are unclear and ask for it to be restated. Do not suggest questions by asking if the questioner is asking you A or B or C. If you do, he will ask you all three, some of which he may never have thought of on his own;
• Answer the question asked and nothing more. Never tell the cross-examiner what he should have asked for but didn't. Don't tell him what he wanted to ask for, but didn't. Do not volunteer information. If your attorney wants that information on the record, he will ask for it when his time comes again;
• Be self-confident, but not arrogant or cocky;
• Be thoughtful and careful;
• Avoid anger, even if provoked by antagonistic questioning. Don't rise to the bait;
• Be respectful of the judge, whom the jurors usually respect, whether it is warranted or not;
• Be respectful of opposing counsel, despite a snide or abusive tone;
• Avoid black and white answers if there are relevant shades of gray;
• Avoid exaggeration. Play within yourself and your true expertise; and
• Watch out for value-loaded modifiers like "significant," "large," "small," etc. Remember laypersons will be interpreting your testimony. For example, you may know that, statistically speaking, there can be a "significant" difference between $1,000,000.01 and $1,000,000.00. However, no layperson would characterize the difference as "significant." Consequently, unless your meaning for such terms is absolutely clear from the question (or your answer), don't use them.

Conclusion

For the environmental professional, advance knowledge of the litigation process and some of its common traps for the unwary can eliminate most of the mystery and fear surrounding the almost inevitable call to the witness stand. With a little foresight and a lot of preparation, you can turn your time in the hot seat into a painless (and even enjoyable) experience.

'Lectric Law Library Guidelines for Being an Expert Witness: www.lectlaw.com/files/exp27.htm.

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This article originally appeared in the 04/01/2000 issue of Environmental Protection.