How do lawyers use Expert Witnesses in Environmental Litigation? Here’s an outline from one of Dianne’s seminars:
A. Picking Your Expert
1. What kind of expert do you need?
2. Which expert should you choose?
3. Which expert correspondence is privileged?
4. Is it “science”?
5. Is there a conflict of interest?
B. Preparation
1. How do you teach an expert to testify?
2. How do you deal with weaknesses?
3. How do you get an expert to speak plain English?
4. How can you help your expert survive cross-ex?
5. How well does the expert need to know the legal case?
C. Direct-Examination
1. How do you “qualify” an expert?
2. What are the rules for giving opinion evidence?
3. When are you required to use a hypothetical?
4. How do you use visual aids?
5. How do you survive re-examination?
D. Attacking the Opposing Expert
1. When should you attack an expert’s qualifications?
2. How can you use your expert to help you cross-examine the other party’s expert?
3. How can the lawyer prepare for cross-ex?
4. How do you deal with hostile witnesses?
5. How do you attack hypotheticals?
E. Impact of Expert Evidence
1. What can the court do with the expert evidence?
2. Does the court have to accept uncontradicted evidence?
3. What is the difference between admissibility and weight?
4. What will the court do with expert evidence relating to the ultimate issue?
5. Did the judge understand any of it???
The Use of Expert Witnesses in Environmental Litigation
Questions and Answers
A. Picking Your Expert
1. What kind of expert do you need?
The expert’s area of expertise must relate directly to the technical issues in the lawsuit. He or she should know enough about the specific issue, however, the area of expertise must be sufficiently broad because an expert may not testify beyond his/her area of expertise.
2. Which expert should you choose?
There are a number of important qualifications:
a. education, technical background, and work experience,
b. unimpeachable reputation (i.e., someone who is well respected in the field and cannot be easily attacked),
c. strong communication skills – the expert must be able to take something complicated and make it comprehensible.
3. Which expert correspondence is privileged?
4. Is it “science”?
How do you determine if the “expert’s” field of expertise is admissible scientific evidence or inadmissible “junk science”? Unlike in the U.S., Canadian courts have not tried to formulate a single rule for admissibility of new scientific evidence. Rather, the SCC has adopted a flexible approach to the admissibility of novel scientific evidence. Essentially, it asks if it is reliable and necessary to assist the trier of fact. Note: the closer the evidence approaches the ultimate issue, the stricter the application of this principle.
See: R. v. Mohan, [1994] 2 S.C.R. 9
5. Is there a conflict of interest?
B. Preparation
1. How do you teach an expert to testify?
Giving an opinion in a courtroom is very different than giving an opinion elsewhere. Explain to experts some of the differences:
- the difference between scientific proof and legal proof;
- the difference between scientific and legal causation;
2. How do you deal with weaknesses?
Encourage the expert to be honest with you so that you can discover any weaknesses in advance and develop an approach for dealing with it.
Determine in advance if the expert is relying on accepted scientific procedures, industry practices and techniques. If not, find out why.
3. How do you get an expert to speak plain English?
Work with the expert in advance to encourage him or her to be as clear and simple as possible, to use basic language, explain basic principles, avoid jargon and technical explanations. Encourage them to use analogies or examples, use pictures and demonstrative evidence.
4. How can you help your expert survive cross-ex?
Experts are accustomed to being respected for their opinion and treated with deference. In cross-examination, the other side will try to chip away at your expert’s evidence. Practice with him or her before and work with the expert to help him or her avoid damaging his or her own evidence. Teach them to: listen very carefully to the question asked; to be sure that they understand it before answering; to ask for clarification if the question is unclear; to answer only the question asked, and never to volunteer further information; to stay calm; and to stick to his or her area of expertise.
5. How well does the expert need to know the legal case?
The expert needs to know more than just his or her part of the case. The expert needs to know and understand the entire case, including all expert reports, including the other party’s expert reports.
C. Direct-Examination
1. How do you “qualify” an expert?
You must demonstrate that the expert has special knowledge or experience in the area in which he/she will be testifying. It may be through education and/or experience. You must qualify the expert for everything that she/he will be testifying on, otherwise, the other party may object if the expert testifies on a matter beyond the scope of expertise for which he/she was qualified.
See: Sopinka, John, et al, The Law of Evidence in Canada, 2nd Edition, Buttersworth, 1999, “The Opinion of Experts”.
2. What are the rules for giving opinion evidence?
In addition to providing basic information of scientific and technical issues, an expert is allowed to state his/her opinions and conclusions. To give an opinion the expert must meet the test set out in R. v. Mohan [1994] 2 S.C.R. 9:
(1) the evidence is relevant to some issue in the case;
(2) the evidence is necessary to assist the judge (i.e., the information to be provided is likely outside the experience or knowledge of the judge);
(3) the evidence does not violate the exclusionary rule; and
(4) the witness is a properly qualified expert.
This test is relatively straight forward if it is a traditional science (e.g. chemistry, physics), but more complex if it involves a possible “junk science”.
3. When are you required to use a hypothetical?
If the expert lacks personal knowledge of the matters in issues or the opinion is predicated on facts that are in dispute, the opinion may be elicited only through hypothetical questions. Hypotheticals need not be used when the expert has first hand knowledge of the facts or when the factual basis of the expert’s opinion is not in dispute.
Rationale: if the opinion is predicated on facts that are in dispute, absent a hypothetical, the expert would be required to weigh evidence, access credibility and form an opinion, which is the job of the judge.
The hypothetical put to the expert must be clear, simple, and uncontradictory, with sufficient assumed facts to enable the witness to give an answer.
See: Bleta v. R. [1964] S.C.R. 561 and A. Maloney, “Expert Evidence”, Law Society of Upper Canada Special Lectures (Toronto, Deboo, 1969).
4. How do you use visual aids?
5. How do you survive re-examination?
D. Attacking the Opposing Expert
1. When should you attack an expert’s qualifications?
If you do not believe than an expert is qualified, you should object right after the expert is “qualified” by his or her counsel; otherwise, you may not object as to the expert’s qualification at a later time. Any questions of qualification during cross-examination will only speak to weight, not the admissibility of his/her testimony. You will also want to object to any statement made by an expert that is beyond the scope of expertise on which the expert was qualified.
2. How can you use your expert to help you cross-examine the other party’s expert?
Provide the other party’s expert’s report or affidavit to your expert to review and comment and criticize. Use your expert to help you phrase technical questions to ask the other side’s experts.
3. How can the lawyer prepare for cross-ex?
The lawyer needs to be quite familiar with the experts subject area. The lawyer will have to understand the experts report and should assistance for his or her own experts. The lawyer will need to be able to ask intelligent follow-up questions on both direct and cross-examination. The lawyer will also need to know the area well enough to know which questions not to ask.
4. How do you deal with hostile witnesses?
5. How do you attack hypotheticals?
E. Impact of Expert Evidence
1. What can the court do with the expert evidence?
2. Does the court have to accept uncontradicted evidence?
3. What is the difference between admissibility and weight?
See: Sopinka, John, et al, The Law of Evidence in Canada, 2nd Edition, Buttersworth, 1999, “The Opinion of Experts”.
4. What will the court do with expert evidence relating to the “ultimate issue”?
There is no longer an absolute rule barring a witness from testifying on the very point or issue the court has to decide, but the court has the discretion to reject such testimony.
See: Graat v. R. [1982] 2 S.C.R. 819.
5. Did the judge understand any of it???
See more at http://www.economica.ca/ew04_2p2.htm.