Guidelines For Preparing
Expert Testimony In
Water Management
Decisions Related
To Instream Flow
Issues
COOPERATIVE
INSTREAM FLOW
SERVICE GROUP
INSTREAM
FLOW
INFORMATION
PAPER: NO.1
REVISED
FWS/OBS-79/37
SEPTEMBER 1979
Cooperating Agencies:
Fish and Wildlife Service
Environmental Protection Agency
Bureau of Reclamation
Soil Conservation Service
-------
The Cooperative Instream Flow
Service Group (CIFSG). a portion of
the Western Energy and Land Use
Team, U.S. Fish and Wildlife Service,
was formed in 1976. Primary funding
was provided by the U.S. Environ-
mental Protection Agency.
Cooperative Instream Flow Service Group
Western Energy and Land Use Team
U.S. Fish and Wildlife Service
Creekside 1
2625 Redwing Road
Fort Collins, Colorado 80526
(303) 223-4275 FTS 323-5231
The CIFSG, under the initiative and
leadership of the U.S. Fish and Wild-
life Service, functions as a multi-
agency, multi-disciplinary program
which is providing a focus for tech-
nology development on instream flow
assessments. This multi-agency,
multi-disciplinary approach is pro-
vided for by the Intergovernmental
Personnel Act transfer of State per-
sonnel and details from other Federal
agencies.
-------
FWS/OBS-79/37
September 1979
GUIDELINES FOR PREPARING
EXPERT TESTIMONY IN WATER MANAGEMENT
DECISIONS RELATED TO INSTREAM FLOW ISSUES
Instream Flow Information Paper No. 1, Revised
Edited by
Berton L. Lamb
and
Debra A. Sweetman
Cooperative Instream Flow Service Group
2625 Redwing Road
Fort Collins, Colorado 80526
This study was conducted
as part of the Federal
Interagency Energy/Environment
Research and Development Program
Office of Research and Development
U.S. Environmental Protection Agency
Cooperative Instream Flow Service Group
Western Energy and Land Use Team
Office of Biological Services
Fish and Wildlife Service
U.S. Department of the Interior
For sale by the Superintendent of Document*, U.S. Government Printing Office, Washington, D.C. 2CH02
-------
Library of Congress Catalog Card Number:79-600205
11
-------
TABLE OF CONTENTS
Page
INTRODUCTION 1
TYPES OF PROCEEDINGS 1
TRIALS IN COURT 1
ADMINISTRATIVE TRIAL-TYPE HEARINGS 2
ADMINISTRATIVE-LEGISLATIVE HEARING 4
PRESENTING DIRECT EVIDENCE 4
DISCOVERY . . 7
EXECUTIVE PRIVILEGE: COMMUNICATIONS 9
ATTORNEY-CLIENT PRIVILEGE 9
WORK PRODUCT PRIVILEGE 10
CONCLUSIONS 10
LABORATORY AND FIELD PROCEDURES SUBJECT TO ATTACK 11
CHAIN OF CUSTODY 11
RESEARCH TECHNIQUES 12
WHAT TO EXPECT IN CROSS-EXAMINATION 14
SUMMARY 26
REFERENCES 28
APPENDIX 30
-------
INTRODUCTION
This document is not a legal reference. The purpose is to give practical
guidance to field biologists and other professionals regarding what to expect
when they become directly involved in some form of litigation, and are asked
to present the results of their research or investigation. The discussion is
directed primarily toward administrative hearings and courtroom proceedings
related to the preservation of instream flows. Considerable reference is made
to water pollution control because many practical lessons can be learned from
this field. To avoid making this presentation unduly long, many generaliza-
tions have been made and fine points of evidentiary rules have been ignored.
The intent is to point out in a general way what one will be asked during
cross-examination so that laboratory or field investigation procedures may be
tailored to avoid the tragedy of having valuable scientific work rendered less
useful for failure to follow a protocol.
The specific preparation of a witness for a particular hearing, of
course , necessarily must take place with the government trial counsel in
the time immediately before one is to testify and is shaped largely by the
substance of one's testimony. The reader should remember that the expert
witness is a servant of the court.
Much of the report is based on a primer developed for scientists by the
EPA (Rogers 1974). Other information was gathered from persons who have served
as witnesses.
TYPES OF PROCEEDINGS
TRIALS IN COURT
The traditional way in which environmental issues are litigated is in a
courtroom, either Federal or State. Cases involving instream flows are growing
in number. Moreover, there have been hundreds of cases in which the State or
Federal government brought actions against a polluter, either for violation of
specific statutory or regulatory requirements or for violation of some public
nuisance concept. The Reserve Mining case is an example of this: The Federal
government based its claim for relief on the pre-1974 Federal Water Pollution
Control Act (33 U.S.C. 1251, et seq.) and the water quality standards promul-
gated thereunder; the plaintiff States sued largely on the basis of public
nuisances ("unreasonable interference with the public's right to use and enjoy
the environment"). Such cases require the presence and testimony of many
expert witnesses.
As more cases are decided and methods are standardized, there will be
fewer in which expert witnesses will be called upon to testify; or at least,
the witnesses will be called upon to present less controversial proof than
before. This trend is because the country is gradually moving to systems under
-------
which most contested facts will be resolved before an agency instead of in a
trial. Thus, the adequacy of a particular flow will be addressed in hearings
before an agency's administrative law judges or hearings officers. As instream
flow needs are recognized as beneficial, there will be interagency agreements,
agency reservations of flow, or appropriations for instream values. When
action is brought under these conditions, the factual issue will often be
whether the agreement or rights have been violated. This will significantly
alter the burden of proof which is placed on the biologist.
Of course, even with these changes, there will be court actions and the
basic rules of evidence of presentation of expert testimony will come into
play. These rules will be examined below in the section dealing with adjudi-
catory administrative hearings.
ADMINSTRATIVE TRIAL-TYPE HEARINGS
Increasingly, State and Federal agencies are holding administrative
trial-type hearings. The rules for presenting the expert testimony in trials
and adjudicatory-type administrative proceedings differ little. In each situa-
tion the expert witness is asked to testify about his knowledge on technical
questions relevant to the issues being tried. It may be helpful to remember
that conclusions and opinions generally are not permissible forms of testimony
and that an exception to this rule is made for expert testimony under the
theory that laymen would be unable to draw conclusions in difficult technical
areas without the assistance of experts. But it is only when the person
testifying is truly expert in the field that his opinion testimony is
permitted; i.e., he is drawing upon his expertise in making a conclusion when
the laymen (judge or jury), given the same facts, could not render a con-
clusion.
On occasion the expert will be asked to render an opinion on the ultimate
question; e.g., he will be allowed to give his opinion that the permit for a
power plant discharge should call for a minimum discharge of 1,000 cfs. More
often a biologist will be allowed to say what the effect of a 1,000 cfs
discharge on the aquatic habitat would be. The point is, the expert witness in
his proper role is providing a part of the technical base upon which decisions
are made. For him to render a judgment on questions in which other disciplines
come into play is to enter fields in which he is not expert and in which he
cannot render assitance to the trier of fact.
The relatively new Federal Rules of Evidence (Pub. L. 93-592,
Jan. 2, 1975) shed some light on those things to which an expert can testify.
In regard to expert witnesses, Rule 702 follows a liberal line of court
decisions which require that the expert's testimony be of assistance to the
trier of fact, not that the area testified to must be beyond the comprehension
of an average individual. Under this rule, formal education does not provide
the sole basis for qualification as an expert: Skill, experience, or training
are also of importance. Rule 704 provides that testimony embracing the
ultimate issue to be decided is not objectionable if otherwise admissible. In
a recently completed trial in Federal Court, where four expert witnesses
testified, the Judge, himself, posed questions to the witnesses involving the
-------
ultimate issue to be decided. In administrative proceedings, it is not unusual
to ask the expert a legal conclusion, that is the ultimate issue to be
decided, and to have the question allowed. Rule 703 provides that the facts
or data relied upon by the expert may be admissible in evidence so long as
they are the type reasonably relied upon by experts in the field. Rule 705
requires the underlying facts basing an opinion to be disclosed if asked for
on cross-examination. Prior disclosure is required only if the court so
orders.
Perhaps the major difference between expert testimony in the court trial
and in an adjudicatory administrative proceeding is the extent to which
hearsay is allowed. Hearsay evidence is:
. . . testimony in court, or written evidence of a state-
ment made out of court, the statement being offered as an
assertion to show the truth of matters asserted therein,
and thus resting for its value on the credibility of the
out-of-court asserter. (Cleary 1972:584)
In short, hearsay relies on the assertions of someone who is not testifying.
It is important to remember that the hearsay rule applies to both oral
and written statements by an out-of-court party. In a traditional suit, then,
a witness testifying on the proper analytical methods for establishing flows,
for example, could not refer to a paper by another scientist confirming the
appropriateness of his methods if the purpose is to suggest that the substance
of that paper is true.1 Nor could a witness testify that his results were
confirmed by Dr. Jones, with whom he talked last week. He can say that he
used method "X" which was developed by Dr. Jones. Moreover, it is not hearsay
if the witness says that method "X" is widely used.
In administrative proceedings the hearsay rule is relaxed substantially.
In the proceedings held to date before EPA administrative law judges, hearsay
expert testimony has been allowed if there is a "nexus" (i.e., the connecting
link) between the witness's expertise and the subject of the paper -- authored
by another -- to which he wishes to refer. The witness in the hearing room
must, however, be prepared to stand some cross-examination on the document.
Thus, if he cannot say under what conditions the analytical methods used by
the other investigator were acceptable, he may not be allowed to use the
paper. This underscores a basic point: the witness must thoroughly under-
stand the assumptions which underlie the methodology he is using.
However, in line with Rule 703 of the Federal Rules of Evidence, it
has been held that opinion testimony based in part upon reports of
others which are not in evidence but which the expert customarily
relies upon in the practice of his profession is admissible (Jenkins
v. United States, 307 F.2d 113 [1962]). In other words, an expert
may rely upon hearsay data in forming his opinion if the data is of
the type reasonably relied upon by experts in that field.
-------
ADMINISTRATIVE-LEGISLATIVE HEARINGS
This refers to those administrative proceedings in which "generic" rules
are being considered. . This may be in an agency rule-making hearing or in
Federal or State legislative proceedings in which proposed statutes are being
debated. There is usually only informational questioning, not in an adversary
setting. Often scientists appear in panels, and most of the time the bulk of
the testimony has been prepared in advance.
PRESENTING DIRECT EVIDENCE
The direct testimony in a court trial is usually given orally, often with
reference to a written report and always with access to written factual data
upon which the expert is relying in rendering his conclusions. And almost
always, the direct testimony relates to the effects of flow at specific
points.
In administrative proceedings, quite often the direct testimony is in
written narrative form and only the cross-examination is done orally. There
are many advantages to the written narrative: The witness and his lawyer can
be sure that the important points are covered, and difficult concepts can be
presented with more precision than is usually possible in oral testimony.
The opposition is usually given a week or two to study the document
before the witness appears. This allows them to narrow the areas of cross-
examination and to prepare for the often intricate questioning of the
scientific data. It allows the cross-examiner to have his own expert go over
the material with a fine-toothed comb. The end result is a more organized
hearing. It also alloys the hearing to go forward without the necessity of
elaborate "discovery," since the tender of written direct testimony well in
advance of the hearing serves the basic purposes of pretrial discovery:
Avoidance of surprise.
Unfortunately, one of the by-products of the use of written direct testi-
mony which is entered into the record without reading is a feeling by some
witnesses that their testimony did not hold up well. This is because the
experienced cross-examining attorney chooses to question the witness only on
points on which he thinks the witness is not capable of giving firm, well
documented answers. Thus, witnesses have gone an entire day without being
asked to discuss their basic research. Nevertheless, the results of that
research will be used if it is adequately presented in the written testimony.
A large problem encountered by trial lawyers is the natural resistance on
the part of scientists to write a complete narrative rather than a short
precis of their work. There may be an assumption that whatever the rules at
the hearing, they will get to elaborate orally on the presentation. In several
instances the opposition attorneys have not cross-examined at all because
otherwise dangerous witnesses did not present a statement worthy of the under-
lying research or investigations. The rule to remember in writing direct
-------
testimony is to put on paper everything you want to say. It is far easier for
your lawyer to cut you back if you said too much than it is for him to inter-
polate in a difficult scientific area.
Collins (1976:397-400) gives this advice to the expert witness:
A great many people are interested and have evidence to
give. The job of the trial lawyer is to quickly marshal
these facts and present them in their most pursuasive
form. At the outset there should be a survey of the basic
relevant factual material easily assimilated by lay
persons and visually displayed to the Court and jury, if
possible. Photographs are almost a necessity. A picture is
still worth a thousand words.
There must be identification of any particular stream
input or withdrawal, its nature, source and amount. Lay
witnesses may be sufficient to establish these facts, but
most trial lawyers insist upon a qualified person with
appropriate scientific training who tested and identified
or otherwise measured the amount of any particular matter,
including water, entering a stream or being withdrawn from
it.
Give some thought to reviewing with your lawyers the
testing and measuring procedures and the data upon which
your experts rely. If possible, walk your lawyers through
your laboratories. Let them watch some similar testing
being performed. Let them ask lots of ... questions. Point
out to them the shortcomings of your work as well as its
strengths. This will not only help prepare them for
examination of your experts, but also will anticipate
cross-examination. If you have employed mathematical or
computer or physical stream simulation models, you should
walk your lawyers through them from beginning to end. Most
lawyers cannot handle at the outset the distinctions in
these techniques.
You may wish to consider having certain members of your
organizations answer the increasingly frequent calls for
expert testimony. Such a procedure may not only be more
economical, it may also take advantage of particular
talents and experience which exist in most large organiza-
tions. It also has the advantage that personnel will
become acquainted with lawyers who frequently deal with
them. In the course of such acquaintances, enormous
amounts of information are passed informally back and
forth. All of this makes for better courtroom
presentations.
-------
Preference is to also have several witnesses who can
present the kind of evidence that appeals to "every
man" -- the color, touch and smell of bunker C crude oil
as it covers a particular shoreline ... There are still
advantages to having "the old timer" who can give
historical background of a locality and remembers how this
particular stream appeared before the advent of a
particular project which has been the subject of litiga-
tion.
The subject of damages is worth special mention. To the
private practitioner it is often the source of his fee. To
the plaintiff seeking an injunction it is the irreparable
injury that money cannot measure or compensate. In the
federal courts some . . . detect a trend toward requiring
a plaintiff to actually prove an "injury in fact" as a
condition to even opening the federal courthouse door.
Occasionally you will find a lawyer who would like to
"look at the ground." Take him there. Take a day or two if
need be. Have your field people and experts along if
possible. Take lots of pictures. It is often on such trips
while walking around some dry stream bed that the short-
comings of your data, and that of your adversary, come to
light. These trips provide a lawyer with the details of
local history and geography that enable him to later sound
in court like he may know what he's talking about.
There is something more important trial lawyers can do for
you. They can help present your best judgments as pro-
fessional resource managers — quietly, effectively, and
free of political slogans and overblown cliches. This will
become more important to you personally and your agents
generally as our society asks for action from our resource
managers, which requires a higher order of planning and
projection than we know. Perhaps it is true that to retain
our hopes, while recognizing our limits, requires a touch
of greatness. The views, the judgments that you hold were
not quite your father's nor will they be your children's.
They may indeed turn wrong, but if today they are the very
best amoung our work and hopes, then the lawyer can help
you say them, and say them well.
Collins's discussion (1976) is presented in a light-hearted manner, but
it illuminates a very important point. It cannot be stressed enough that,
assuming the expert and the attorney are each reasonably competent, the
attitude of each is of paramount importance. Each should display qualities of
willingness and cooperation. The witness should be willing to appreciate the
-------
problems of presenting sometimes very complex scientific or technical data and
to cooperate with the lawyer in presenting the testimony in terms understand-
able to lay persons who will be reviewing the evidence and deciding.the case.
An attitude of "stupid questions" or "this stupid lawyer" and "this stupid
judge" on the witness's part may be fatal to a proper presentation. Correla-
tively, the attorney must use his talents to the utmost to assist the witness
in making the presentation as succinct and manageable as possible and com-
pletely intelligible to the lay person. A trial involving expert testimony is
not a sparring match between the witness and his attorney but should be looked
upon as an educational exercise -- enlightening the trier of facts to the
scientific or technical bases of the position to be presented. Humility on the
part of both the witness and the attorney is an indispensable asset in
approaching this difficult task.
It has often been said that the direct testimony of an expert witness
consists of four parts: (a) his qualifications (by education or experience)
as an expert; (b) the material from which he fashions his opinion; (c) the
process or reasoning by which he gets from the material at hand to his con-
clusion or opinion; and (d) the conclusion or opinion itself. Usually there
is little dispute over an expert's personal background and that information
comes in without question. In many cases the presentation of raw data itself,
or with a clear statistical explanation, is enough for one to draw a con-
clusion, and logical step-by-step delineation of how the experiment was
conducted or how the field samples were analyzed is vital to showcase these
data. Actual examples of testimony will be presented in the later discussion
of cross-examination to show what should and should not be done.
DISCOVERY
Discovery is a general term used to describe the process by which one
side in litigation finds out the factual basis for the other side's case.
Discovery can be used to help build a case against the government, particular-
ly when data or documents relative to the issues are not otherwise available.
In Federal or State court actions, there are several procedures by which this
can be accomplished. The most frequently used procedure is the taking of oral
depositions. Under this procedure, the potential witness is placed under oath
before a court reporter and asked a wide range of questions designed to
prepare the opposing lawyer for his testimony at the trial. The deposition is
also an opportunity for the opposition to ask about reports, memos, maps, lab
books, pictures, and other materials which the person giving the deposition
knows of or may have in his possession and which he does not intend to use in
the trial, i.e., material which the other side may wish to use. By use of a
subpoena duces tecum (very roughly "you are ordered to appear and bring all
the following documents with you") the opposing party can force a scientist to
collect all material which might be applicable to the issue. The lawyer may
precede the "noticing" of a deposition by filing a motion to inspect all the
documents related to the question. This helps prepare him to take the deposi-
tion.
-------
Under modern practice and Federal rules, the names of expert witnesses,
background resumes, and a brief statement of the nature of the experts'
testimony Is exchanged by the parties1 attorneys in advance of trial. This
also applies in adminstrative proceedings, where frequently the parties will
stipulate to abide by the Federal Rules of Civil Procedure.
A less often used procedure is the use of written questions served upon
the opposition and to be answered under oath (interrogatories). Sometimes this
is used to initiate discovery by asking "who are the scientist who have any
knowledge on this subject" or "where are your freshwater laboratories
located," or "whom have you consulted in bringing this lawsuit?"
Biologists are virtually united in their horror of the all powerful
discovery procedures, drafted and enacted by lawyers, which can force them to
photo-duplicate massive amounts of material. Some lawyers have argued that,
unlike conspiring executives in an antitrust case, scientists should not be
put through the ordeal of having filing cabinets raided. Actually, the Federal
Rules of Civil Procedure, applicable in Federal courts but adopted intact by
most States, provide for restricted discovery of an expert's data. Rule 26
(b)(l) of the Federal Rules of Civil Procedure states the basic rule:
Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the
claim or defense of any other party, including the
existence, description, nature, custody, condition and
location of any books, documents, or other tangible things
and the identity and location of persons having knowledge
of any discoverable matter. It is not ground for objection
that the information sought appears reasonably calculated
to lead to the discovery of admissible evidence.
From this base, the Rules in Section 26 (b)(4) set forth an exception for
experts:
Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of subdivision
(b)(l) of this rule and acquired or developed in anticipa-
tion of litigation or for trial, may be obtained only as
follows:
(A)(i) A party may through interrogatories require any
other party to identify each person whom the other party
expects to call as an expert witness at trial, to state
the subject matter on which the expert is expected to
testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a
summary of the grounds for each opinion, (ii) Upon motion,
the court may order further discovery by other means,
subject to such restrictions as to scope and such
provisions, pursuant to sudivisions (b)(4)(C) of this
rule, concerning fees and expenses as the court may deem
appropriate." (Emphasis supplied.)
8
-------
What the Rules giveth (in the form of protection to scientists) the trial
judges usually taketh away, in response to motions to have full discovery of
expert witnesses and documents. The theory advanced by most of these judges is
that in large complex cases, in order not to unduly drag out the trial, it is
essential to have the parties do the exploratory questioning prior to trial.
It must be remembered that most civil litigation in the United States is
between two private parties and may involve one or two experts at the most.
The scientist is likely to appear, if at all, in a major suit or hearing in
which a dozen or more experts will testify. In such situations it is unlikely
that discovery will be restricted.
Are any materials privileged and not subject to disclosure? Increasingly
the answer is: virtually none. Memos between researchers in a laboratory,
draft reports, memos of telephone calls, and letters have all been held to be
discoverable. Only three very limited categories of documents are privileged.
These are the "interagency and intra-agency communications privilege," the
"attorney-client privilege," and the "work product privilege," which may come
into play in regard to government documents.
EXECUTIVE PRIVILEGE: COMMUNICATIONS
The latter is a modified "executive privilege" rule and is a qualified,
not absolute, privilege. To fall within this privilege, the material in
question must consist of documents internal to or between governmental
agencies reflecting "advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated." (Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jeana, 40 F.R.D. 318,
324 [D.D.C. 1966], aff'd, 384 F.2d 979, cert, denied, 389 U.S. 952 [1967]).
The deliberations must be prior to a decision having been made. Otherwise, the
material is considered part of the public record.
Factual material, in contradistinction to advisory or deliberative
matter, is not privileged. (E.P.A. y. Mink, 410 U.S. 73 [1973]). Information
coming from outside the government, even if advisory, is not privileged.
(Boeing Airplane Co. v. Coggeshall. 380 F.2d 654 [C.D.C. I960]). Memoranda
lose their privileged status if the agency, in announcing its decision,
specifically refers to otherwise privileged memoranda as a basis for the
decision.
This privilege is still applied, although under increasing pressure to
permit broader discovery.
ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege includes government attorneys. This is an
absolute privilege. The information in question must be confidential and
communicated by the client to his attorney away from the presence of strangers
for the purpose of obtaining legal advice or legal assistance from the
-------
attorney (U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357 [D. Mass,
1950]). Ordinarily, the information in question must come from within the
government. (U.S. v. Anderson, 34 F.R.D. 518 [D. Colo, 1963]).
The privilege extends to communications:
a) from the agency to the agency attorney;
b) from the agency to attorneys in two separate agencies
representing the agency;
c) from an agency to another agency acting as attorney for the
first agency (Thill Securities Corp. v. N.Y. Stock
Exchange. 57 F.R.D. 133 [1972]; U.S. v. Gates, 35 F.R.D.
524 [1964]); and
d) between attorneys respresenting a single client or from the
attorney to his client if the communication is based on the
original confidential information communicated by the
client. (Insur. of N.A. v. Union Carbide Corp., 35 F.R.D.
520 [D. Colo, 1964]).
WORK PRODUCT PRIVILEGE
Although the "work product" privilege applies only to material which is
legal in nature, prepared by an attorney, relating to specific litigation and
confidential (not communicated to or from outsiders), there is an excepted
area covered that involves expert witnesses. This exception is the so-called
"written memory" rule; a major exception receives only a qualified immunity.
If substantial need under Rule 26(b) (3) F.R.C.P. can be demonstrated,
together with a showing of due hardship in obtaining the material through
other means, the court will permit discovery.2
CONCLUSIONS
No rigid distinction can be drawn in the above discussion between trials
in courts and administrative proceedings because lawyers have used increasing-
ly the Freedom of Information Act (FOIA) to obtain those documents discover-
able under court rules. Having complied with the mechanical requirements of
43 CFR Part 2, such as making a request in writing at the right office, a
party is entitled to review and copy materials subject to some exceptions.
It should be noted that the requirement to show "good cause" under
Rule 34 F.R.C.P. (Federal Rules of Civil Procedure) to obtain produc-
tion of documents was deleted by the 1970 amendment to the rules,
"relevance" being the general guide to production after that date.
10
-------
The regulations relating to the production of documents and the testimony
of government employees by subpoena are presently covered by 43 CFR §§ 2.80
and 2.82. The nine exemptions from disclosure provided by the FOIA are found
in 43 CFR § 2.13. The general test of what documents may be inspected and
copied under the disclosure provisions of the FOIA is: What would be dis-
coverable in a civil action under the federal rules?
Procedures regarding FOIA request are covered by 43 CFR §§ 2.14-2.19.
Some very "fine line" questions can arise where provisions under both the FOIA
and the Privacy Act are involved. (See 43 CFR §§ 2.45 et seq. )
LABORATORY AND FIELD PROCEDURES SUBJECT TO ATTACK
CHAIN OF CUSTODY
The scientist or technician who fills water bottles in a stream just
below a potential defendant's outfall must take precautions to insure that at
trial the sample bottle he refers to can be shown to correspond to a sample
taken at a certain time and a certain place. The often elaborately stated
rules of chain of custody are nothing more than a means of guaranteeing the
integrity of the identification of field samples such as stream transects and
photographs. McCormick on Evidence (Cleary 1972) states simply that the expert
witness must be able to trace the chain of custody "with sufficient complete-
ness to render it improbable that the original item has either been exchanged
with another or been contaminated or tampered with." This requirement must be
met before the evidence can be received at all; it does not simply affect the
weight to be given to the evidence.
One of the most useful things you can do in this regard is to establish a
procedure for a chain of custody (e.g., the tag and receipt method) within
your agency. It will often be necessary to prove that, not only is the sample
the expert tested or collected the one that came from a particular stream, but
also that it is the one which has been produced in court and about which the
expert is testifying. Under many circumstances you may have to produce every
person who handled that sample from the day it came from the stream until it
appeared in court. As you can see, chains of custody should be short, well
established, and the samples retained. Cross-examiners delight in breaking
down a chain of custody, thereby impairing the integrity of the sample and the
testimony of the expert about it.
For example, color slides or photographs are sometimes taken of streams,
documenting time, flow, location, and any visible water pollution in the
vicinity. Written documentation on the back of the photo should include the
signature of the photographer, time, date, and site location. Photographs of
this nature, which may be used as evidence, should be handled according to the
established chain of custody procedures.
Integrity of identification is also of importance relative to the use of
field notebooks. In addition to being a valuable reference for refreshing the
11
-------
potential witness's memory, a well kept field notebook can be utilized to
verify conditions, techniques, and observations which are often critical to
conclusions of fact. Conversely, failure to keep a field notebook or compiling
one in a poor manner can render a field observation almost worthless from a
legal standpoint. Information relevant to a field observation, such as
location and date, is necessary to preserve the chain of custody. Without an
adequate record of such material, the value of a field observation is greatly
diminished or destroyed.
RESEARCH TECHNIQUES
Volumes have been written on proper techniques, so there will be no
attempt here to indicate in even a general way what procedures should be
followed in examining a particular stream. The purpose of this section is more
to emphasize that role proper (or, arguably, improper) sampling technique
plays in a case. If a lawyer determines that an expert witness can do harm to
his client's case, and that the substance of what the witness has to say is
probably correct, or at least difficult to attack, then he may attempt to cast
doubt upon the analytical methods employed by that scientist. It is imperative
that accepted techniques be followed to the letter and that if the methods are
not presented in depth in the research paper itself, at least detailed records
are kept so that questions directed at those methods can be answered. For
example, care should be taken to assure the transects or photographs are
representative and not anomalous, and that this can be shown by the testimony.
The increasing amount of environmental litigation has generated a lawyer-
specialist who (a) knows where to find consultants and (b) knows how to use
their expertise in ways which can seriously discredit researchers who are not
careful. Such care should be standard in all research, but special care should
be placed on understanding the concepts which underlie the research design.
The statistical significance of test results is often taken for granted,
yet several witnesses who have appeard in recent EPA hearings have had their
published work seriously questioned by skillful use of desk calculators and
accepted statistical analyses. Reference to statistical tests is now common in
lengthy proceedings.
What follows is an excerpt from part of the Aldrin/Dieldrin pesticide
proceeding (Rogers 1974:11-12). In this case the witness was not totally
trapped by improper methods; it is a more typical case in which a "question"
is raised in the mind of the trier of fact:
Q. First of all, I would like to discuss the
methodology that you employed in this particular
experiment. In particular, I would like to discuss
the reliability and the weight which you give to
the levels of dieldrin and aldrin that you found I
would like to focus on the methodology.
In particular I want to ask you, Dr.
whether in the techniques that you employed for
analyzing the presence of aldrin and/or dieldrin,
you used any separation techniques, or so-called
12
-------
clean-up techniques, in order to eliminate the
presence of DDE, or PCB, or any other artifacts
which could have caused interference on the GLC
columns, and, therefore, exaggerated or made too
large the results which you found for aldrin and/or
dieldrin?
A. Really there are two components to the
question. One is the sampling and one is the
in-house analysis of the sample.
You are asking once the sample is in-house and in a
correctly identified manner, how it is analyzed?
Q. That is correct.
A. In this particular investigation, some of the
peculiarities of saltwater chemistry said it really
wasn't that necessary to go through elaborate
separation schemes with the type of gas chroma-
tography, the type of detector that was employed.
We did use different columns so we wouldn't catch
any of these places where one type of compound
overlaps another, or one reacts in a column and
produces a spurious peak of one sort or another.
In other types of work, sometimes medium clean-up,
extensive clean-up, might be needed, but not in in
this case.
Q. Are you saying that because the samples were
taken from saltwater, in this case it was actual
seawater, wasn't it --
A. That is correct.
Q. — that there were no artifacts that could
have been present in the seawater?
A. Oh, there may have been many artifacts. But
using the particular column, the inlet design, the
type of detector, the sensitivity settings, the
thermal settings, flow rates, all of those
parameters, there was no interference at this
point. There were lots of other items that could be
seen on some of the chromatograms, but they weren't
of interest for this particular paper.
It must be emphasized that a judge cannot easily determine what is "harm-
less analytical error"; as a lawyer in a strange field, he must rely upon
certain procedures which others in the field have called the standard methods
for analysis. If the witness cannot tick off the requisite procedures, he
should be prepared to explain why he used a different method, and preferably
to be able to point to some published work which sanctions the method he used.
13
-------
There is an aura of "peer acceptability" that surrounds published work which
does not attach to unpublished research. If at all possible, the extra time
and effort should be made to publish your work, preferably not just in an
agency circular. Although probably unjustified, the greater weight given by
lawyers and judges to glossy-paper finished reports will no doubt continue.
WHAT TO EXPECT IN CROSS-EXAMINATION
When scientists think of trials or adminstrative proceedings in which
they are to appear, they may not think of the purpose of the hearing, or even
the purpose of their testimony. They may not think of the novel scientific and
legal issues involved. Often, their main concern is how bad cross-examination
will be. To some scientists cross-examination is a forceful wrenching from the
world of the reasonable and polite to the world in which word games prevail
over accepted fact. In some trials, unfortunately, this has been true, but a
witness can control the cross-examination to a remarkable extent by being
adequately prepared. Most of this preparation should be directed by his
lawyer, but there are some general points which apply to most situations. The
following guidelines have been used in preparing witnesses for the EPA head-
quarters hearings on pesticides and Section 307(a) of the FWPCA:
1. You have no obligation to answer a question which you do not feel
qualified to answer. You are not a defendant in a criminal trial required
to answer. An "I am not qualified to answer that" or "I do not have
enough facts to answer that" is perfectly acceptable.
2. Do not be lured into areas beyond your field.
3. Ask for clarification of a question if you have any doubt what is
being asked.
4. When a hypothetical question is posed, make certain all elements of
the hypothesis you need to be able to answer are included clearly in the
question.
5. Take your time in responding to questions.
6. Do not elaborate beyond what is necessary to give a complete answer
—on the other hand, do not allow yourself to fall into the trap of
giving an "out of context" answer—an answer which, in and of itself, is
true but which has a misleading implication if further comment is not
given. If you cannot answer with a "yes" or "no," make it plain you need
to qualify your answer.
7. You may be asked to comment on works of other scientists you do not
know or have not read recently--e.g., "I show you this list of instream
flow figures from Iowa—aren't they awfully high?" You probably need to
know how the research was conducted, the details of the methods, and much
more before you can comment accurately.
14
-------
8. Do not respond to a challenge by boasting.
9. Do not try to render categorical decisions ("all pesticides are bad"
or "corporations mislead the public").
10. You may be confronted with statements made by you at an earlier date
which are too broad. If those statements were your personal opinions and
not your professional scientific opinion, you should say so. Scientists
are allowed personal opinions but are allowed to testify in court in
opinion and conclusion form only as to matters within their scientific
realm, upon which a layman would be unqualified.
11. Do not get angry at the interrogator if he becomes arrogant or
insulting. This invariably is because he does not have any way to crack
your testimony scientifically and is trying to rattle you. Allow your
lawyer to attempt to put him in his place.
12. The good lawyer will not ask a question on an opposing party's
witness's strongest ground. Do not feel upset if you are not challenged
on work you want to discuss.
13. Do not be drawn into an argument with opposing counsel. He is not
being called to testify.
14. It may be possible to obtain a recess from the proceedings. However,
a request of this nature should not be used as an excuse to avoid
difficult questions—your counsel will ask for a recess if he sees you
need a chance to collect your thoughts. Only for necessity will the court
interrupt a cross-examination.
15. Most important, remember you know more about what you are talking
about than anyone else in the courtroom. Your !'home ground" is your
data—do not stray too far from it.
There have been notable examples in each major administrative hearing
held by EPA or court trial in which EPA was a party, of witnesses who have
fallen into one or more of the traps mentioned above.
The ideal expert witness has facetiously been characterized by some as a
white haired gentleman with a pipe and elbow-patched tweed sport coat who
understates most answers he gives and never changes his mood of academic
detachment. This picture is not altogether misleading, for the best witnesses
seem to be those who are never caught exaggerating, never lower themselves to
the rancor of the hearing room, and never deviate from their area of
expertise. Judge E. Barrett Prettyman (Rogers 1974:15) gives this advice to
experts:
Don't argue. Don't fence. Don't guess. Don't make
wisecracks. Don't take sides. Don't get irritated.
Think first, then speak. If you do know the answer
to a question, say so. If you do not know the
answer but have an opinion or belief on the subject
based on information, say exactly that and let the
hearing officer decide whether you shall or shall
15
-------
not give such information as you have. If a "yes"
or "no" answer to a question is demanded but you
think that a qualification should be made to any
such answer, give the "yes" or "no" and at once
request permission to explain your answer. Don't
worry about the effect an answer may have. Don't
worry about being bulldozed or embarrassed;
counsel will protect you. If you know the answer
to a question, state it as precisely and succinctly
as you can. The best protection against extensive
cross-examination is to be brief, absolutely
accurate, and entirely calm.
In order to present material in the most favorable light, a witness must
reflect possession of knowledge in a calm manner. No matter how intelligent
the witness may be, adoption of an argumentative stance serves only to harm
the credibility of the witness's testimony. A witness may become irritated by
the questions directed toward him or her, but this must not become apparent in
the testimony given, nor should the witness allow such irritation to be
expressed in the form of argumentative responses. This problem is illustrated
in the following material derived from the Yellowstone River Reservation
proceedings held before the Hearing Officer for the Montana Board of Natural
Resources and Conservation (Montana Board of Natural Resources and Conserva-
tion August 9, 1977:63-64).
Q. All right, so you do consider that answer to
be a reasonable one, 1282 gallons per capita per
day?
A. Including industrial uses in the manner that
you are using it, I would assume it's reasonable.
However, I did not make that statement; that was
the per capita usage that we were projecting for
our residents.
Q. O.K., keeping that figure in mind, on page 1
of Exhibit 4, you indicate that personal water use
rates at 320 gallons per day as average and 896
gallons per person per day as your maximum?
A. Yes.
Q. How do you reconcile the difference?
A. Well, that's what I've been trying to tell
you. Thirty percent of that 1190 is for industrial
purposes.
Q. And is it not correct that you said you did
not factor in certain other industrial developments
in that 30 percent contingency reservation?
A. I used that as a total amount for future
industry that would come to the City and need
water.
16
-------
Q. But you did not factor in those other things
that we have gone over previously?
A. The Alaskan Pipeline?
Q. Yes, those certainly very realistic occur-
rences in the Billings' area.
A. I think I've said to you about four times that
I used the historical use patterns for projecting
the demands; and I told you before that I did not
factor in the Alaskan Pipeline.
The skillful witness also knows when to concede a point, even if it
reflects poorly on his work. To struggle with a lawyer on a line of question-
ing, only to agree with him later, highlights the concession and places the
other answers of the witness in an unfavorable light. What follows is the
aftermath of a cross-examination on a point on which a witness refused to
yield until the last possible moment. The expert then became argumentative and
refused to answer questions clearly within his area of expertise. The
questions deal with possible sources of dieldrin found along the Atlantic
coast (Rogers 1974:16-17):
Q. Looking at Table 5, I notice that New York is
the most frequent reporter of residues of dieldrin
in mollusks. Are you able to account for that?
A. No; that is an interesting observation, but I
am not able to account for it.
Q. Why is it interesting?
A. It just interests me as a person.
Q. What does it suggest to you?
A. I have no further comment.
Q. Refer to the New York section of the paper.
This begins at page 303.
A. Yes.
Q. You will notice the sites of the monitoring
stations are fringed around the island of Long
Island, not notorious as one of the world's great
feed corn granaries. Does that suggest anything to
you?
A. I am not in a position to comment on that.
Q. You are not even in position to comment on
whether or not these sites are adjacent to urban
areas?
A. No comment.
17
-------
Q. No comment?
A. No.
Q. Are you able to comment, for example, with
respect to page 304 and let's say, for example, the
Mamaron data which shows residues, if you allow a
subjective judgement, for example, in 1967, a
fairly constant rate throughout the year and tell
us whether or not that indicates to you that these
are agricultural or non-agricultural sources?
A. No, I have no basis for comment.
Q. Let's go back to page 243 and notice in the
next column of Table 5 that Georgia is the state
reflecting the maximum value in PPB. Are you able
to comment about that?
A. No, I am not.
Q. If you will turn to the Georgia section and
particularly the Lazareth Creek data, Station
Number 1, for example; are you able to advise us as
to the existence of one or more wool treatment
plants on this creek?
A. No, I am not.
To some people, giving testimony as an expert witness is a challenging
experience which starts the adrenalin pumping and prompts an attempt to answer
all questions which are posed. A good lawyer will endeavor to draw an expert
away from his area of expertise to a topic on which the witness knows enough
to want to answer the questions but not enough to avoid being trapped. The
witness also can be led into this unfortunate situation by a client and lawyer
who wish to prove a point by forcing the witness to "expand a little upon this
expertise." The example which follows is of a witness who rose to bait offered
by the interrogator. The witness, who was a chemist, had just presented data
on the runoff of pesticides from a cornfield during a heavy rain. (Rogers
1974:17-18).
Q. Over the course of five years, Doctor, how
many days would you expect that kind of rainfall to
occur of that intensity? Did you have any way of
making an estimate? Iowa weather?
A. Yes, I could make an estimate.
Q. Out of five years, what would your estimate
be?
A. Well, I won't be numerical.
18
-------
Q. Well, could you try -- how many days?
A. With considerable frequency. It is not un-
common. Several times a year, at the approrpiate
seasons; sometimes a couple of times a week it's
happened.
Q. Would you identify that for the record and
tell me what you see, whether you recognize that?
(indicating)
A. Yes, I recognize it. It is a publication,
1969, by the Iowa Academy of Sciences, entitled
"Water Resources of Iowa."
Q. Now I direct your attention to figure 8, done
in exactly the same method. I understand this
figure, Doctor, and I ask you to correct me if I am
incorrect, we can expect a four-inch rainfall in a
24-hour period once in five'years; is that correct?
A. Yes sir.
Q. Thank you.
The second example of a witness leaving his area of knowledge was
probably the fault of his lawyers, who assisted in the drafting of an overly
broad written statement. The witness was attempting to rebut an EPA position
in the Aldrin/Dieldrin hearings that much if not most of the residues of these
pesticides come from agricultural runoff rather than point sources. The Shell
Chemical Company was attempting to show that sloppy handling by formulation
and fertilizer blenders was the cause of the pollution. (If this were so, the
argument goes, EPA could reduce pollution measurably by enforcement actions
against certain plants and would not need to ban the pesticide. Another more
immediate purpose was to throw doubt upon the EPA studies showing high
residues in those agricultural areas in which Aldrin is used.) A company
chemist was put in the uncomfortable position set forth below (Rogers
1974:19-21):
Q. Are any of your publications related to the
material you talk about in your statement?
A. No.
Q. So to shorten this up you have never published
in the fields of — stop me if you have, I am just
going to read a list, aquatic toxicology, kinetics
of Aldrin/Dieldrin degradation, the absorption of
Aldrin/Dieldrin to soil particles, erosion
problems, the fate and effect of Aldrin/Dieldrin in
fresh water moving stream environment, or the
19
-------
relationship between turbidity and aldrin-dieldrin
concentrations in a moving fresh water stream.
Have you ever published in those areas?
A. No.
Q. Do you know how many tons of soil leave an
average American corn field according to the U.S.
Department of Agriculture?
A. No.
Q. Don't you think that would be a good figure to
have in mind when you are talking about the rela-
tive pollution of Iowa corn streams?...
A. I don't see the need to know that figure.
Q. Did you have any data on the distance an
aldrin or dieldrin molecule can be transported in
various size streams?
A. No. But I would guess it could go from one end
to the other.
Q. You have no data on that, do you?
A. No.
Q. You have no information on how far this
molecule could travel in a highly turbid drainage
ditch or turbid Iowa stream of 500 cfs, do you?
A. No.
Q. Doctor, do you have any example of a number in
parts per million or pounds per day for any formu-
lating plant in the Midwest at any time of the
year?
A. No.
Q. Do you have any number for the pounds per day
or parts per million from any municipal outfall in
the Midwest.
A. No.
20
-------
Q. Dr. , have you been in any of the eight
major Shell formulating plants in the United
States?
A. No.
Q. Let me run to Figure C, the map of fertilizer
blenders, and so on. I take it you have no
knowledge of whether the formulators on that map
ever discharged a drop of dieldrin to the water, is
that correct? I mean in normal operations.
A. I have no personal knowledge.
Q. And you have no knowledge of any type of
numbers in parts per millions or pounds per day
from any of these plants.
A. No.
Q. So, you do not know if they are polluting the
water in Iowa or not, basically, do you? They could
be all closed systems for all you know, right?
A. Right.
Being drawn into an area in which the witness is not truly expert does
not necessarily mean that the witness must personally extricate himself from
such a trap. A seemingly simple question concerning a matter which the witness
has general knowledge of may lead to questions further afield of the witness's
expertise. At such a point, the expert's attorney may object to the line of
questioning and attempt to redirect the opposition's examination. The follow-
ing material taken from the Yellowstone River reservation hearings is
illustrative of an attorney's ability to provide protection when an expert has
been lead outside the area of his expertise. In this particular instance, an
attorney for the Montana Department of Fish and Game attempted to assist his
expert witness during cross-examination testimony on the validity of the
Department's instream flow reservation request (Montana Board of Natural
Resources and Conservation August 18, 1977:85-88). An early objection as to
the lack of expertise helped to resolve later difficulties involving the use
of a hypothetical question.
Q. Are you quite familiar with the Water Use Act?
A. As a layman and as an administrator, I try to
retain familiarity with that Act, yes.
Q. And do you know that under the Act, the Board
of Natural Resources is given the responsibility to
gather all information on water rights and submit
to courts of competent jurisdication in the
particular jurisdictions to seek adjudication of
the water rights, are you familiar with that?
21
-------
A. Not familiar, but I certainly wouldn't debate
it.
Q. Do you know that is what has to be done in
Montana under the Water Use Act that all the water
rights have to be adjudicated?
A. It's called for, yes.
Q. That rests with the Department of Natural
Resources to gather all this information?
ATTORNEY FOR MONTANA DEPARTMENT OF FISH AND GAME:
If it please the Hearing Examiner, Mr. is
getting more and more qualified as a lawyer by the
opposition, so I trust when I start asking
questions he will be qualified. I object to the
extensive line of questioning upon the interpreta-
tion of the law.
ATTORNEY FOR THE MONTANA POWER COMPANY: Well, he
said he was familiar with it.
Q. You have read it, haven't you?
A. Yes, I have.
Q. Do you know whether or not under the Water Use
Act this information is supplied to the particular
judges in the jurisdictions where the water rights
are that he makes a preliminary decree setting
forth the priorities and amounts and so forth of
the water rights?
ATTORNEY FOR MONTANA DEPARTMENT OF FISH AND GAME:
I object to this being beyond the direct testimony.
It has no bearing.
ATTORNEY FOR THE MONTANA POWER COMPANY: There's
been water rights questions asked.
HEARING EXAMINER: Do you know that?
WITNESS: I certainly couldn't argue it. I concur
that that is my impression of what the process is
to the best of my knowledge and I have no disagree-
ment with that.
HEARING EXAMINER: The objection will be overruled,
but try and stick within his expertise instead of
having him interpret all the sections of the Water
Use Act.
22
-------
Q. I want to ask you a hypothetical question, Mr.
, in your capacity as Division adminis-
trator. Assuming you are granted a reservation in
a particular stretch of river and it's either a
full amount you've asked for or somewhat less and
then a preliminary decree comes down from the judge
establishing the water rights which would necessar-
ily, because of the established rights, reduce your
reservation. Are you following me so far?
A. I think so.
Q. Would you, as administrator and after that
preliminary decree, recommend to the Commission to
attach that preliminary decree, in other words, be
protester of the established water rights in order
to raise up again your reservation?
ATTORNEY FOR THE DEPARTMENT OF FISH AND GAME: Just
a minute. The Department of Fish and Game objects
upon the grounds of a hypothetical question. It
assumes facts not in evidence. It's very specula-
tive. It calls upon the witness to speculate upon
matters of law when he stated, he is a lay witness.
It calls upon him to make some prognostication of
what he would do under circumstances and other
conditions and, therefore, the question is objec-
tionable.
ATTORNEY FOR MONTANA POWER COMPANY: It is pretty
well qualified.
HEARING EXAMINER: The way the question is worded,
attached in what conditions? In the court of law?
Under what law?
ATTORNEY FOR MONTANA POWER COMPANY: Under the
Water Use Act that is permissible. Anybody that is
adversely affected.
HEARING EXAMINER: I'm going to sustain the objec-
tion. I don't believe the witness has shown an
expertise in the Montana Water Use Act to answer
that question.
There are, unfortunately, many examples of expert witnesses who have
violated one or more of the fundamental rules for presenting evidence. The
chances of doing so, however, are far less if the potential witness has viewed
at least a day or more of the proceedings prior to giving testimony. This
accomplishes several things: It gives the "tone" of the hearing, it usually
indicates what general type of questions to expect, and most of all, it
reassures the witness. If you are called upon to testify, you should make
every effort to arrive enough before your appearance to view the proceedings.
23
-------
Unfortunately, simple fatigue can undo the best of research. Experts have
likened giving testimony before good lawyers to a lengthy oral defense of
one's dissertation without the usual opportunity to give complete answers. By
the end of a day of hard questioning, the witness1 concentration and the
precision of the answers fall off markedly. Good lawyers may save the most
agressive and most important questioning for after the mid-afternoon break.
It is also at this time that the skillfully phrased leading question has its
greatest effect. With certain practical exceptions, lawyers are not allowed to
"lead" their own witnesses, but may phrase long rhetorical questions when
facing witnesses for the opposition. These often begin with "I take it we can
agree that . . ." or "I assume you are aware that . . ." or some form of a
lead-in which calls for a yes or no answer to an often lengthy proposition.
The prepared cross-examiner will know where he wants to go, and roughly how
many leading or hypothetical questions it will take to get there. In most
cases the final answer will not be the conclusion the witness anticipated when
he conducted his research, i.e., it may be a consistent extrapolation from his
original work. Or it may be a conclusion not truly in line with the data, but
the inevitable result of the skillful questioning.
The latter result, most frustrating to good scientists, can happen when
the leading or hypothetical questions are 95% accurate and the respondent is
either too tired or too timid to demand the correction of the 5%. As any
scientist knows, a 5% error compounded several times leads to substantial
deviation: this simply is what happens when a witness is not careful with
leading questions. He should demand that all elements of a hypothetical
questions he needs in order to reply are indeed included in the question or
that all elements of a leading question do indeed reflect the state of facts.
This training best comes from actual experience, but intensive mock cross-
examination by his own lawyer can give a fair idea of what to expect. Perhaps
such preparation or a request for clarification of the hypothetical question
presented to an expert witness for the Montana Department of Fish and Game
testifying during the Yellowstone River reservation hearings could have
prevented the following occurrence (Montana Board of Natural Resources and
Conservation August 18, 1977:78-79):
Q. Let's assume a well drilled by the side of the
Yellowstone or one of its tributaries, let's assume
it was supposed to be a case well and let's assume
they didn't do too good a job of casing it, there
would be a chance, wouldn't it, that some of the
waters that would supposedly support the surface
flow would become intermingled in the well and
would be pumped out of what was merely ground
water?
A. That, is a physical possibility. Yes, I would
recognize that.
Q. And if such things should occur, wouldn't you
in protection of your reservation, obtain one;
wouldn't you be interested in putting a stop to
things like that?
24
-------
A. In a hypothetical sense, I think maybe we're
creating situations here with the answers obvious,
but the probability of something like that con-
fronting us as a real problem I think is remote.
But again, in response to your question with all
these hypothetical things assumed, that is correct.
Q. Would you accept the fact as a water lawyer
over a period of about a quarter of a century, I've
encountered numerous cases exactly like that?
A. Yes, I accept that.
Q. So I don't -- are you saying that such
instance of occcurence where there is conflict
between use of ground water and surface water is
very isolated?
A. I think -- again, this is an opinion you're
soliciting that .I'm offering that on the mainstem
of the Yellowstone, I think so.
It is often a good idea at the end of a day of hearing or trial for
attorney and witness to review the past testimony in addition to preparing for
likely cross-examination to come the next day. Witnesses and their lawyers
often disagree as to what was said, or how it was interpreted, or whether that
was really what the witness wanted to say. If there has been testimony that
could be misinterpreted or was simply misspoken, the government attorney
should try to correct the misimpression by well phrased "redirect" questions.
These are traditionally questions which deal with issues raised in the cross-
examination, not with "new matters." It is helpful to trial counsel if the
witness keeps a mental note of areas of cross-examination in which he feels he
needs to say more, and if the witness can suggest appropriate questions to his
lawyer.
In some of the bigger trials and trial-type administrative hearings in
which EPA has been a party, a daily transcript is made and is usually
available to the parties 4 or 5 hours after the close of the day's hearings.
Reference to the actual recorded answers, of course, greatly facilitate the
correction of misimpressions and the protection of a precise record.
Review of personal publications, newspaper articles pertaining to the
expert, and testimony in other trials is also advisable. The expert witness's
attorney should inquire in what courts the witness has testified, when, for
whom, and on what particular issues. Such preparation avoids the presentation
of contradictory information and prepares the witness for questioning as to
past statements. This form of review should also encompass publications
authored by the witness and newspaper articles which the witness may have
written or which contains statements attributed to the expert. Any books or
articles written by the witness, or for the witness, should be read carefully
and analyzed for inconsistencies with the witness's proposed testimony at the
future trial. In addition, the witness should be prepared to clarify incon-
sistencies in statements which may be attributed to him. An example of the
need for clarification is evidenced in the following testimony by the expert
25
-------
witness for the City of Billings, given during the Yellowstone River reserva-
tion hearings (Montana Board of Natural Resources and Conservation
August 9, 1977:18, 24-25):
Q. I noticed from this morning's issue of the
Billings Gazette, you were quoted as saying, "I'm
not used to talking in acre feet. We always talk in
gallons or we usually talk in gallons." I recognize
what you mean by it and I just suggested if you're
used to talking in gallons, you would be able to
talk in gallons for us now.
A. I can talk in gallons if you'd like and I can
convert this figure, but I'm not familiar and I
have not used it in acre feet per year and it's a
terminology that I don't use quite often. I use
million gallons per day; this is what all of our
figures are. When I talk to our customers, they
prefer talking gallons because they can picture a
gallon. They have a very difficult time picturing
acre feet per year and I might point out, I am not
responsible for what the Gazette says in their
paper. When they quote me, I don't even know if
they're quoting me correctly. There are some things
in the paper that I did not say that they quoted me
in.
Q. So it's not doubled then as suggested. The
Billings Gazette might be wrong there. It's not
doubled, but you think it might be ten, twelve
times as much water as
A. I never quoted to the Gazette that it was
doubled or anything. I told them I did not have my
figures available and I didn't give them any
figures. That was on their part that they quoted
that figure.
Lack of awareness as to such inconsistencies could have placed the
witness in the position of having to justify conflicting information.
SUMMARY
First and foremost, the expert witness is a servant of the court who is
obligated to assist the trier of fact in ruling upon the matters with which
the trier has been presented. By fact and by title designation, the expert-
possesses knowledge outside the scope of that held by laymen. In applying that
knowledge in a manner to assist the trier of fact, the expert is faced with
possible obstacles which may render the presentation of laboratory or field
26
-------
investigation procedures less useful. Difficulties may arise in terms of
discovery techniques, laboratory research and field investigation procedures,
and during cross-examination. By avoiding obstacles in these areas, expert
witnesses may more effectively assist the trier of fact and more accurately
present the results of their labor.
27
-------
REFERENCES
Ames, M. P. 1977. Preparation of the Expert Witness. Trial 13(8):2Q-28.
Byrd, G. J. , and T. Stults. 1976. The Dilemna of the Expert Witness. Trial
12(5):59-62.
Cleary, E. W., ed. 1972. McCormick on Evidence, 2nd Ed. West Publishing Co.,
St. Paul, Mn. 938 pp.
Collins, J. G. 1976. The Legal Process: What is Needed in Court, pp. 393-400,
In J. Osborn and C. Allman (eds.), Instream Flow Needs, Vol. I American
Fisheries Society, Bethesda, Md.
Conrad, E. C. 1964. The Expert and Legal Certainty. Forensic Sci.
9(4):445-455.
Culin, J. 1973. Fostering Understanding Between Science and Law. Am. Bar
Assoc. J. 59:157.
. 1971. Saving Us From Ourselves: The Interaction of Law and
Science-Technology. Denver Law Journal. 47:651.
Dunn, J. B., and G. S. Kirsh. 1979. The Professional Fisheries Scientist as an
Expert Witness. Fisheries l(6):2-4; 44-46.
Hulverson, J. E. 1973. Pretrial Preparation of the Expert Witness, Chapter
Two, In Institute of Continuing Legal Education (ed.), Experts in Litiga-
tion. Institute of Continuing Legal Education, Ann. Arbor, Mi.
Huston, J. 1979. Engineers on the Witness Stand: Guidelines for Expert
Testimony. Civil Engineering-ASCE. 44(2):82-83.
Klein, S. J. 1972. Making the Most of Your Expert. Connecticut Bar J. 46:483.
Meyer, J. 1968. Some Problems Concerning Expert Witnesses. St. John's Law
Rev. 42:317.
Montana Board of Natural Resources and Conservation. 1978. Yellowstone River
Reservation Application Hearing on August 8, 1977. H & H Secretarial
Service, Helena, Mt. 151 pp.
. 1978. Yellowstone River Reservation Application Hearing on
August 18, 1977. H & H Secretarial Service, Helena, Mt. 161 pp.
. 1978. Yellowstone River Reservation Application Hearing on
August 23, 1977. H & H Secretarial Service, Helena, Mt. 158 pp.
. 1978. Yellowstone River Reservation Application Hearing on
August 24, 1977. H & H Secretarial Service, Helena, Mt. 197 pp.
28
-------
. 1978. Yellowstone River Reservation Application Hearing on
August 25, 1977. H & H Secretarial Service, Helena, Mt. 108 pp.
. 1978. Yellowstone River Reservation Application Hearing on
August 29, 1977. H & H Secretarial Service, Helena, Mt. 86 pp.
. 1978. Yellowstone River Reservation Application Hearing on
August 30, 1977. H & H Secretarial Service, Helena, Mt. 159 pp.
. 1978. Yellowstone River Reservation Application Hearing on
Setpember 15, 1977. H & H Secretarial Service, Helena, Mt. 128 pp.
Olinich, S., and P. Shova. 1978. Expert Witnesses Under Rule 702: Circuit
Court Attitudes Toward Qualification of Experts During the Period
1971-1977. Environ. Law 8:753.
Rogers, J. A. 1974. A Primer for EPA Employees: Presenting Scientific
Evidence. Office of General Counsel, Washington, D.C. 33 pp.
Rodgers, W. H. 1977. Freedom of Information Act, pp. 49-63. In W. H. Rodgers
Environmental Law. West Publishing Co., St. Paul, Mn.
Rothstein, P. F. 1975. The New Federal Rules of Evidence. Bureau of National
Affairs, Washington, D.C. 92 pp.
Sax, J. 1970. The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention. Michigan Law Rev. 68:473.
Sive, D. 1970. The Law and thfe Land. Natl. Environ. Law Soc. Newsletter 2:1.
. 1970. Securing, Examining, and Cross-examining Expert Witnesses in
Environmental Cases. Michigan Law Rev. 68:1175.
Steindler, R. S. 1976. Lawyer and Expert: A Cooperative Exercise. Trial
13(7):46-48.
Thomas, W. S., ed. 1974. Scientists in the Legal System. Ann Arbor Science
Publishers, Inc., Ann Arbor, Mi. 144 pp.
Vanyo, J. P. 1971. Dynamics of the Legal Process and Environmental Law.
California Trial Lawyers J. 10:44.
. 1971 Law, Operations, Research, and the Environment. J. Of
Environ. Systems 2:213.
Warren, E. 1963. Science and the Law: Change and the Constitution. J. of
Public Law 1:3, 5.
Woodwell, G. M. 1978. Opinion: The Scientists' Testimony. Bioscience
28(7):427.
29
-------
APPENDIX
<=-r
•f~
-, \ U.S. FISH and WILDLIFE SERVICE
U.S. Department of the Interior
EMPLOYEE INFORMATION BULLETIN
Prepared Oy Division at Personnel Management and Organization
Bulletin No. 10 Washington. 0. C. Date: 11/8/76
TO: All FWS EMPLOYEES
SUBJECT: EMPLOYEE TESTIMONY AS WITNESSES IN JUDICIAL OR ADMINISTRATIVE
PROCEDURES
From time to time, questions arise regarding employee participation in
judicial proceedings. The Department's regulations on testimony of employees
are quoted below from 48 CRF 2.20:
"(a) An officer or employee of the Department shall not testify in any
judicial or administrative proceeding concerning matters related to the
business of the Government of the contents of official records without the
written permission of the head of the bureau or office, or his designee, or of
the Secretary. If the head of a bureau or office, or his designee, concludes
that permission should be withheld, tie shall report the matter immediately to
the Secretary for determination, and the officer or employee shall appear in
answer to process and respectfully decline to testify, pending the receipt of
instructions from the Secretary, on the ground that testimony is prohibited by
this part.
(b) Any person (including a public agency) wishing an officer or
employee of the Department to testify in a judicial or administrative
proceeding concerning a matter related to the business of the Government or
the contents of official records must submit a statement in writing, setting
forth the interest of the litigant and the information with respect to which
the testimony of the officer or employee of the Department is desired, before
permission to testify will be granted under this section. In the case of a
private litigant, this written statement must be in the form of an affidavit.
Permission to testify will be limited to the information mentioned in the
written statement, or to such portions thereof as the official granting of the
permission deems proper.
(c) The Solicitor of the Department of the Interior may exercise all
the authority of the Secretary of the Interior under this section."
4 AM 4.68 delegates authority to regional directors to grant written
permission to employees to testify in judicial proceedings on matters related
to Government business or the content of official records within limits of
rules set forth in 6 AM 3.
30
-------
When arrangements are made for employee participation in legal proceedings,
and especially those between private litigants, this action must be fully
coordinated among all offices concerned. Expectation of involvement in legal
proceedings should be promptly reported to the Washinton office so that the
latter will be prepared to handle inquiry on the subject. It is also
important that the Washington office unit so notified, alert other Washington
office divisions of staff offices concerned to assure a coordinated action and
response in these matters.
6 AM 8 provides detailed information on this subject. All employees and
supervisors are responsible to familiarize themselves with these procedures
and ensure adherence.
31
-------
50272-101
REPORT DOCUMENTATION
PAGE
1. REPORT NO.
FWS/OBS-79/37
4. Title and Subtitle
Guidelines for Preparing Expert Testimony in Water Management
Decisions Related to Instream Flow Issues IFIP No. 1 Revised
3. Recipient's Accession No.
5. Report Date
_j5eptember 1979
7. Author(s)
Edited by Berton L. Lamb and Debra A. Sweetman
8. Performing Organization Rept. No.
9. Performing Organization Name and Address
Cooperative Instream Flow Service Group, Western Energy and
Land Use Team, U.S. Fish and Wildlife Service, 2625 Redwing
Road, Fort Collins, Colorado 80526
10. Project/Task/Work Unit No.
11. Contract(C) or Grant(G) No.
(0
(G)
12. Sponsoring Organization Name and Address
Cooperative Instream Flow Service Group, Western Energy and
Land Use Team, U.S. Fish and Wildlife Service, 2625 Redwing
Road, Fort Collins, Colorado 80526
13. Type of Report & Period Covered
14.
15. Supplementary Notes
Library of Congress Catolog Card Number: 79-600205
16. Abstract (Limit: 200 words) '
The guidelines provide instructions and background information to biologists who
believe their work may become part of a formal adjudication or administrative hearing.
Topics covered include types of hearings, discovery procedures, and rules of evidence.
Samples of testimony are also included.
17. Document Analysis a. Descriptors
instream flows
legal arrangements
expert witness
judicial proceedings
b. Identifiers/Open-Ended Terms
expert testimony
water law
United States
legal and institutional affairs
c. COSATI Field/Group
18. Availability Statement
release unlimited
19. Security Class (This Report)
_UNCLASSLFLED_
20.
Page)
21. No. of Pages
33
22. Price
(SeeANSI-239.18)
. GOVERNMENT PRINTING OFFICE: 1 980-682-543/210
32
OPTIONAL FORM 272 (4-77)
(Formerly NTIS-35)
Department of Commerce
-------
The Biological Services Program was established within the U.S. Fish
and Wildlife Service to supply scientific information and methodologies on
key environmental issues which have an impact on fish and wildlife re-
sources and their supporting ecosystems. The mission of the Program is as
follows:
1. To strengthen the Fish and Wildlife Service in its role as a primary
source of information on natural fish and wildlife resources, par-
ticularly with respect to environmental impact assessment.
2. To gather, analyze, and present information that will aid decision-
makers in the identification and resolution of problems associated
with major land and water use changes.
3. To provide better ecological information and evaluation for Depart-
ment of the Interior development programs, such as those relating
to energy development.
Information developed by the Biological Services Program is intended
for use in the planning and decisionmaking process to prevent or minimize
the impact of development on fish and wildlife. Biological Services research
activities and technical assistance services are based on an analysis of the
issues, the decisionmakers involved and their information needs, and an
evaluation of the state-of-the-art to identify information gaps and determine
priorities. This is a strategy to assure that the products produced and dis-
seminated will be timely and useful.
Biological Services projects have been initiated in the following areas:
Coal extraction and conversion
Power plants
Geothermal, mineral, and oil shale development
Water resource analysis, including stream alterations and western
water allocation
Coastal ecosystems and Outer Continental Shelf development.
Systems and inventory, including National Wetlands Inventory, habi-
tat classification and analysis, and information transfer
The Program consists of the Office of Biological Services in Washington,
D.C., which is responsible for overall planning and management; National
Teams which provide the Program's central scientific and technical expertise,
and which arrange for contracting of Biological Services studies with States,
universities, consulting firms, and others; Regional staff who provide a link
to problems at the operating level; and staff at certain Fish and Wildlife
Service research facilities who conduct inhouse research studies.
------- |