by Spenser Huston
Weather is a common concern in the evaluation of a marine accident. MEC has a number of meteorologists who can perform hindcasts to determine what the weather including sea conditions actually was at the time of, or leading up to, an accident. This article was prepared by one of our Associates regarding the use of meteorologists in other types of litigation and has been condensed by the editor. The subject matter can easily be correlated to marine cases.(Ed.)
Preparation is one of the crucial elements for serving as an expert witness.
Before undertaking any of the activities discussed below, analyses and conclusions should be thoroughly reviewed with the client's attorney. It is ill advised to appear unless this task is accomplished. From this briefing, the attorney will most likely develop a set of questions that will be asked, consistent with the overall legal strategy to be employed. It is the meteorologist's responsibility at this stage to educate and familiarize counsel with the analyses and findings, in order to present them visually and orally in a logical manner.
Prior to briefing the attorney, relevant literature and project documentation should be reviewed. This critique should include field notes, memoranda, correspondence and formal reports. A detailed chronology of activities and events should be developed. If depositions have been given, these should be reviewed as well; if not, the statements and technical positions of those either for or opposed to the project should be examined. Previous testimony of the meteorologist and that of the opposition should be included if applicable. Be keenly aware that there exists a body of "expert witnesses" that give identical testimony "for the record" for specific types of projects, e.g. nuclear facilities, to assure their viewpoint is represented.
During the preparatory stage, coordinate testimony with other experts on the team. For instance, testimony that focuses on the accuracy and precision of results from exercising a model may have direct implications for determination of health effects. If resolution of a public health issue is contingent on these findings, they should be discussed with the expert in health related matters, under the auspices of client counsel. As a result of these deliberations, extraordinary care must be exercised by the meteorologist to provide testimony solely within his/her sphere of expertise; testimony should be confined.
Occasionally, the expert witness will encounter an attorney that is either unwilling to accept or doesn't understand the time commitment necessary for a meteorologist to prepare testimony. In either situation, a clear explanation of time requirements for participation should be discussed, and an understanding reached. If adequate time is not allowed for preparation, it can be assumed that: (a) the proposed testimony is viewed as having only minor relevance or importance: or (b) the testimony is overly sensitive to costs. In this situation, reevaluation of participation may be warranted, as it is the witness's reputation that will be impugned in the final analysis. Don't participate in a hearing or trial against your judgment, or with an attorney who is ignorant or careless. "An ignorant lawyer is bad, a careless lawyer is a menace to the profession - avoid employment with the latter" (1).
Several additional factors must be considered before appearing. When an expert appears is usually up to the client's attorney, although there are situations when this option is not available such as proceeding in progress. During periods prior to appearing, don't discuss the case in halls, elevators and other public areas. Be especially vigilant during recesses. Don't provide any opportunity for the opposition to gain information or learn of client counsel's strategy. Also, do not fraternize with witnesses from the opposition, regardless of current or prior relationships.
Dress conservatively. Designer clothes are rarely appropriate on someone hoping to create an impression as an impartial authority.
It may be simplistic to indicate that clarity of speech and good posture are important, but they are!
An expert witness should expect to be closely observed by those who will render a judgment based in part on how and what is said. Be prepared to speak with confidence and address answers to those making the decision. Look at the attorney during the questioning, and the decision maker or jury when replying. Think about these procedures in advance and expect to be uncomfortable - this is a new experience. Relax and be yourself. Juries will be impressed by a sincere and truthful witness, who conveys an understanding of the material being presented and communicates well. Posture and body language communicate to some the degree of confidence associated with a statement, or if a response is defensive or uncertain.
Attorneys, particularly trial attorneys, are trained not only in courtroom procedure, but also in witness behavior. It is axiomatic that no one likes a crafty attorney or one that badgers a witness; nevertheless, opposing counsel must incorporate such tactics as necessary. The witness should not unwittingly become an ally through lack of technical preparation or inattention to courtroom demeanor. Lastly, whether an expert witness remains after testifying, either to observe the proceeding or provide questions for the witnesses following, is a decision that rests with client counsel. Follow the guidance given and participate as requested.
Under certain circumstances, as part of the discovery process, oral depositions may be taken. The scope of a deposition varies with the jurisdiction, so the expert witness must rely on the client's attorney for guidance. It is quite possible that the opposing attorney will provide a list of questions to which a response is expected, prior to the deponent's appearance. The context of the process will most commonly follow the cross-examination procedures discussed later.
The deposing process provides advantages for attorneys. These advantages include the ability to impeach the integrity of a witness if his/her testimony at the hearing or trial differs from that given in the deposition, and the ability to "preserve testimony" if a witness doesn't appear due to unforeseen circumstance.
The expert, therefore, must be fully prepared. On occasion, information will be revealed during deposing that will result in a settlement between the disputing factions. A disadvantage to the process is that it is an expensive means of discovery (4).
The moment of truth arrives when the expert witness is introduced or called. After the preliminary procedures, that may commence after taking the oath, the client's attorney will begin to introduce the expert's qualifications into the record.
These will most likely include the following:
Name, Affiliation, Education, Registration, Background, Previous Expert Testimony, and Experience.
This may be accomplished by direct questioning, or counsel may elect to enter a Curriculum Vitae into the record. In either case, let the attorney take the lead, as this stage of testimony can be very boring. Even more difficult, particularly for the more experienced individual, is not to sound arrogant. Counsel may compensate for these difficulties by enumerating relevant accomplishments.
During this period, the opposition may stipulate to the expert's qualifications. The client's attorney will deal with this situation accordingly. The expert witness's usual lack of familiarity with all of the rules of evidence should preclude comment at this stage of process (3).
In response to questions, explain analyses and conclusions in simple terms whenever possible. Use visual aids liberally to depict difficult concepts or employ analogies with which people will be familiar. When possible, maximize the use of visual aids within the constraints posed by the client's attorney. Counsel will be able to specify what is acceptable with respect to the type and size of exhibit.
Listen intently to questions. Answer the question and only the question asked. Avoid exaggeration!
Be confident and composed when testifying. If unsure of an answer to a question, say so. Answers can be qualified when necessary, but erring or guessing destroys credibility, and introduces opportunity for the opposing counsel during cross examination. When using a journal, periodical or treatise in support of testimony, have counsel enter it as an exhibit. A witness can read from an exhibit (2).
Finally, if a question is not heard or understood, request that it be repeated or explained, or have the stenographer read it back. Then answer in a definitive manner. In responses, don't position the client's attorney adversely with a longer than necessary answer that introduces superfluous or confusing material. After testifying, review what has been said or read the court record if available, or make notes afterward and discuss responses with the client's attorney.
Cross examination is the most difficult aspect of providing expert testimony. The witness faces opposing counsel with little or no opportunity to prepare. It is possible to develop a "feel" for the emphasis and tenor of the cross examination from the deposition process, if it was utilized. Opposing counsel will attempt to establish inconsistencies or identify errors in testimony, as well as damage the expert witness's credibility. This will include an effort to demonstrate a lack of knowledge of certain facts. Prior technical positions as a meteorological consultant in other proceedings will be challenged as well as fees.
The decision to cross examine is solely within the purview of the opposing attorney. In some situations there will be no cross examination. If there is, usually two specific objectives will be the focus. Elicit favorable testimony and discredit the prior testimony.
To elicit favorable testimony, opposing counsel will attempt to have the expert support an opposing position. Such efforts will be emphasized at the beginning or conclusion of the cross examination, as people tend to remember things they hear first or last (1). Frequently, eliciting favorable testimony is accomplished by convincing the witness that a particular viewpoint is either relevant or correct because it has been published. Be aware however, that the meteorological profession has seen changes of viewpoint over time, and the possibility exists that multiple viewpoints exist. Don't hesitate to challenge supposedly authoritative statements in publications that are dated or written by those overextending their experience or knowledge (5).
Discrediting testimony is usually undertaken by representing that all of the work was not done personally by the witness or by use of an opposing witness. Be prepared for such tactics. Emphasize the quality control and qualify assurance measures associated with the meteorological records and analyses supporting the findings. Also, it is imperative that the meteorologist providing testimony has visited the site and surrounding environs. Never be caught answering the question, "Have you seen the site?" with a negative answer.
Another tactic employed under this category of cross examination is the attempt to disqualify or impeach an expert because of lack of experience with a specific type of project or situation. Care must be taken to focus on the fact that it is not the event or the project type that matters, but rather the familiarity and facility with which technical analyses were accomplished, and quality assured.
Most of that which applies to direct examination also applies to cross examination with respect to demeanor. The questioning may be slightly different, however. In particular, when question is asked that really represents two questions, separate them, and provide two distinct and succinct answers.
Don't let findings become clouded. If asked to answer yes or no, remember that it is permissible to explain an answer, and that a witness is not restricted to responding solely in a positive or negative manner.
Occasionally, the opportunity to explain or qualify an answer becomes available. Although the cross-examining attorney will attempt to avoid such situations, seize them to reinforce the client's position.
Also, it may be the client's attorney's strategy during direct to limit portions of testimony, knowing that the opposition will probe the issue under cross and potentially enable the witness to make the point. A polished cross examiner avoids such situations, since substantiating a position during cross examination is more damaging than establishing it during direct (5).
Quite frequently, and most likely during cross examination, the topic of fees will arise. The picture that is too often sketched is that the expert witness will share in some largess should his/her viewpoint prevail in the proceeding, or result in a favorable finding on behalf of the client. Usually, this outcome is not the case; however, particularly in the instance of jury trials, it represents a tactic that skilled trial lawyers will employ to denigrate the testimony of an expert witness. It is, therefore, important that the expert witness not only impart the basis of the fee structure, but also establish that the testimony is based on impartial interpretation of scientific evidence.
From a lay person's viewpoint, fees for professional services may be customary but not unusual. Most lay persons are familiar with the charges of professionals for services, e.g. architects, doctors, lawyers, etc., but seldom are they aware of what components enter a fee such as the general and administrative expense of maintaining a consulting practice. In collaboration with the client's counsel the fee must be presented as usual for such services given the education and experience of the expert witness. In today's parlance, "sticker shock" must be avoided. This explanation must be accomplished in a manner that demonstrates that the billing for services is not dependent on the outcome of the proceeding, consistent with the ethics of our profession, as well as the legal profession.
In conclusion, the meteorologist serving as an expert witness can find the assignment both challenging and rewarding in a professional sense. Key to success is remembering that, despite the possible apprehension accompanying such an assignment, forthrightness generally prevails and meteorological interpretations are based on sound scientific practice and experienced judgment.
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