Pesticide Assessment in the
An Educational Guide for the Cent ience-
Agricultural Witness Libra c
| JUL 13 1987
Revised Edition 1986 UniversitY For
versity of Florida
Michael T. Olexa
Alan H. Daniels
Florida Coooerative Extension Service / Institute of Food and Agricultural Sciences / University of Florida / John T.Woeste, Dean
PESTICIDE ASSESSMENT IN THE ADMINISTRATIVE HEARING:
AN EDUCATIONAL GUIDE FOR THE AGRICULTURAL WITNESS
Michael T. Olexa and Alan H. Daniels
Professor Grover C. Smart, Jr.
Department of Entomology & Nematology
Supported by a Grant from the National Agricultural Pesticide
Impact Assessment Program, Extension Service, USDA
Food and Resource Economics Department
Institute of Food and Agricultural Sciences
University of Florida
November 25, 1985
This publication is designed to provide current, accurate, and authoritative
information on the subject. However, since the laws, administrative rulings, and
court decisions on which it is based are subject to constant revision, portions of
this publication could become outdated at any time.
This publication is distributed with the understanding that the authors are
not engaged in rendering legal or other professional service. If legal advice or
other expert assistance is required, the services of a competent professional
person should be sought.
JAMES S. WERSHOW
This guide is part of an overall review of current issues in agricultural law
and an effort to expand extension education on legal topics of importance to
farmers, agricultural scientists and people in farm related businesses. This phase
of the program in agricultural law was partially supported by Special Need Project
Funds from the Extension Service, U.S. Department of Agriculture. The main
purpose of the grant was to develop educational materials for agricultural
scientists on the legal aspects of Pesticide Impact and Assessment Reports. This
document is one of three in preparation dealing with impact and assessment
reports and pesticide user liability.
The principal Investigator on the grant project is Grover C. Smart, Ph. D.,
Professor of Nematology, Department of Entomology and Nematology, University
The authors are indebted to him and to Melvin L. Upchurch, Ph. D.,
Consultant, for review and consultation on this paper.
Gratitude is expressed to Margaret Breinholt, J.D., Office of General
Counsel, USDA, for suggestions and guidance in reviewing project drafts.
Appreciation is also extended to Paul W. Bergman, Ph. D., Extension
Service, USDA; and John T. Woeste, Ph. D., Dean for Extension, for their
constructive input and support.
TABLE OF CONTENTS
PREFACE ............. ... .........................
CHAPTER 1 Understanding the Legal Process ...................
CHAPTER 2 ............................................
I. RELIABLE INFORMATION-Use only reliable
information to support conclusions in written
direct testimony .....................
A. In determining if information is reliable
1. Does the information represent
conditions present in relevant
agricultural production areas? ....
a. Was the scientific methodology
b. Were all relevant factors con-
sidered in generating such
c. Do the sources of information
appear to be, or are they in
fact biased? ..............
d. Can the information be verified
by replication or has it been
reviewed and accepted by competent
peers? ........ .... .......
B. MULTIPLE SOURCES OF INFORMATION-Attempt to
gather reliable information from as many
relevant sources as possible. Unless all
relevant sources are tapped, the
evidentiary weight given your conclusion
may be affected adversely .......................
C. Document sources of information-Poor
documentation can affect the credibility
of"on the record" testimony ......................
. . . .
. . . .
D. Establish the validity of your underlying
assumptions and interpretation of studies
used as a foundation for testimonial
EXAMPLE ..... ................
E. Whenever possible, generate information and
conclusions for the largest production
environments. Limited applicability can
affect the overall evidentiary weight of
your testimony .E... *'.. .............
II. DATA GAP-UNAVAILABLE RELEVANT DATA-
Conclusions based on insufficient or unreliable
data are easily discredited during cross-
A. Assuming your available data are reliable,
ask:........ ............... ..................
Is the quantity of such available
data sufficient to support
your conclusions such that the
conclusions can withstand
scientific scrutiny ....................
1. Yes, the available data are sufficient
2. No, the available data are insufficient
on which to base a conclusion-a
significant gap in data exists ..................
III. ALTERNATIVE CONTROL MEASURES ..................
A. Be familiar with alternative control
measures. Demonstrate in your written
testimony a familiarity with their strengths
and weaknesses in relation to those of the
reviewed pesticide. Failure to do so may
lower the credibility of your testimony and
create an implication of bias...........
2. EXAMPLE ...........
IV. BRIDGING THE TERMINOLOGY GAP-The scientist's
use and understanding of terminology is not
always similarly perceived and understood
by the cross-examining attorney or
decision maker ....................................
A. Lack of clarity or confusion in terminology
can result in .................................. 23
The full impact of the witness's
statements being diluted, with
less credibility being accorded
the witness's conclusions ................. 23
Creation of an air of confusion
between the witness scientist
and the cross-examining attorney
or decision maker ...................... 23
EXAMPLE ........................ 23
B. USING STATISTICS-Clarify all statistics
by specifically explaining what quoted
numbers represent ............................ 25
1. If statistical representations are not
clear the witness risks: ...................... 25
Not clearly establishing evidence
on the record ......................... 25
Appearing inconsistent at the
hearing and subsequently lowering
one's credibility and possibly the
weight given one's testimony .............. 25
V. TESTIFY ONLY TO MATTERS WITHIN YOUR FIELD OF
EXPERTISE .. ... .......................... .. 26
A. Stating conclusions not within your field of
expertise can result in: .......................... 26
1. Subjecting yourself to cross-
examination in areas in which you are
not qualified and generally not pre-
pared to defend or discuss at an expert
level ................................... 26
2. Lowering the credibility of your total
testimony including that portion which
is supportable from within your area of
expertise ............................... 26
3. Affecting your credibility as a
witness ........... .......... . 27
a. EXAMPLE .................. 27
b. EXAMPLE ................... 28
B. If it is necessary to make conclusionary
statements outside your area of expertise,
be certain those conclusions are supported
with sufficient reliable scientific
data and that you fully understand
the supporting data ............................ 29
VI. FUNDING FROM POTENTIALLY BIASED SOURCES-
Know what percentage of your total research budget
has been or is presently supplemented by grants
from sources that might be accused of bias ............... 29
EXAMPLE .................... 30
VII. FURNISH A PUBLICATION LIST-If you have
publications, submit a listing of them with your
testimony ........................................ 30
A. If a publication list is not submitted ................. 30
Your credibility as an expert witness
may be affected adversely ............... 30
The evidentiary weight given your
testimony can be affected
adversely ................................ 30
EXAMPLE .................... 31
CHAPTER 3................................................. 34
I. RESPONDING TO CROSS-EXAMINATION-As a general
rule, always strive for clarity and accuracy ............... 34
A. When the cross-examining attorney's question
is unclear-SEEK CLARIFICATION. If a
question is answered by a witness who
does not know the true nature of what
is being asked, misleading evidence may
be placed on the record................ ........ 34
EXAMPLE ................... 34
B. When questioned about statements made
in written direct testimony, you may
request'that the cross-examining attorney
specifically cite the page and line from
which the question was generated .................. 35
1. Answering without first examining what
you specifically stated in written
direct testimony runs the risk of:...............
a. Having your testimony
b. Making inconsistent statements ............
C. Do not allow the cross-examining attorney the
opportunity to mischaracterize your
D. When necessary, qualify all responses to
cross-examination. This prevents the cross-
examining counsel from inappropriately
stretching your assessment results or
extrapolating conclusions out of context,
or mischaracterizing your testimony ................
E. Avoid being forced to choose an
inappropriate standard of measurement ..
F. If an attorney objects to a question during
cross-examination, do not answer until
and unless the objection is overruled ....
G. Be familiar with your written submitted
direct testimony and other submitted
materials-KNOW THEM WELL. Your
credibility as a witness is directly
affected by your familiarity and
knowledge of the content of submitted
written direct testimony.........................
Michael T. Olexa and Alan H. Daniels*
The purpose of this guide is to suggest some 'do's' and don'tt' for
agricultural scientists called as witnesses in formal administrative hearings
dealing with pesticide regulatory activities. The material that follows has been
gleaned from thousands of pages of testimony heard by Administrative Law Judges
(ALJ) within the Environmental Protection Agency (EPA). This educational
material is intended to aid the agricultural scientist witness in preparing
testimony and in anticipating tactics common to an adversary proceeding.
The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as
amended provides that all pesticides used in the United States be registered with
the EPA. The EPA is responsible for assuring that use of registered pesticides
does not constitute an unreasonable hazard to man or the environment.
An applicant for registration or reregistration of a pesticide must furnish
EPA with scientific information regarding the material to be registered, its
proposed uses and available facts about its effects on man and the environment.
If the EPA determines that the proposed pesticide presents no unreasonable risks
to man or the environment, the uses of the material are registered. However, if
the EPA finds that the pesticide in question presents the possibility of
unreasonable risk to man or the environment, a more elaborate procedure for
assembling information, review and decision making is initiated. An early step in
this procedure was known as Rebuttable Presumption Against Registration (RPAR)
but is now known as Special Review. At this point, the applicant may be required
*Michael T. Olexa, Ph. D., J.D., is Project Director, Legal Aspects of Pesticide
Use and Impact Assessment Reports. Alan H. Daniels, J.D., is former Assistant Project
to furnish additional information about the pesticide in question. Other interested
persons may furnish information, and (by agreement between the EPA and the U.S.
Department of Agriculture) a "Pesticide Use and Assessment Report" is prepared.
Under the leadership of the USDA, pesticide use and assessment reports are
prepared by teams of experienced agricultural scientists. Members of these teams
may be employees of USDA, EPA, or state agricultural extension, research or
regulatory agencies. Reports prepared by these teams become part of the body of
information used by the EPA in determining whether to register, reregister,
withdraw from registration or place additional restrictions on the use of a
If the EPA decides that the "presumption against registration" is rebutted,
the pesticide is registered for its labeled uses. However, if the EPA determines
that the presumption against registration is not rebutted (the pesticide is
presumed to present an unreasonable risk to man or the environment), a formal
hearing may be convened to garner further evidence on the risks and benefits of
the pesticide in question before a final determination is made.
Understanding the Legal Process
Formal administrative hearings are conducted by an ALJ subject to the
rules of the Administrative Procedure Act (APA) and the precepts of the Canons
of Judicial Ethics of the American Bar Association. Procedures for the formal
hearing are specified in FIFRA and the APA. Parties in the hearing are generally
the EPA, the applicant seeking registration, or the applicant seeking
reregistration or combatting proposed cancellation or suspension, and others who
have a significant interest in continued use or registration and who successfully
petition the ALJ to become a party.
It is especially important for agricultural scientists who become involved in
an administrative hearing to realize that such a hearing is very much like a trial
before a court of law; it is an ADVERSARY proceeding! Parties to the proceeding
may call witnesses and cross-examine adverse witnesses.
Agricultural scientists who find themselves as witnesses in such a hearing
usually find themselves in a strange environment. An adversary proceeding differs
significantly from an academic seminar. Frequently, agricultural scientists
subject to the adversarial nature of the hearing are frustrated, even enraged, by
the tactics of opposing attorneys, especially during cross-examination.
A 'record' is compiled throughout the course of the hearing. The ALJ has
rather wide latitude in determining what information is admissable to the record.
Except when an objection to the inclusion of any testimony or comment in the
record is successfully made, the record contains all testimony submitted by every
witness, all responses to cross-examining questions, and all comments made during
the hearing as well as any orders or rulings issued by the ALJ. Additionally, the
record may include other information or documents (such as the Assessment Team
Report) 'stipulated' between the parties to be included or submitted by a witness
as an attachment to their testimony. Any party to the hearing may request that
questions of scientific fact be referred to a committee of the National Academy
of Science (NAS). If the ALJ decides that such referral is necessary or helpful,
such questions may be submitted to the NAS. The NAS response becomes part of
the record and subject to cross-examination.
Based solely on evidence in the record, the ALJ must, prepare a decision
which the administrator of EPA either accepts, amends, or rejects. Any appeals
to appellate courts of law following the final administrative decision are decided
on the EVIDENCE OF RECORD only. Since so much emphasis is placed on the
hearing record, it is important for a witness to present a clear, credible,
adequately researched and objective assessment.
Role of Written Testimony and Cross-Examination
As an expert witness, you may be asked to prepare an assessment of the
pesticide's benefits or exposure potential. Such a written assessment is referred
to as 'direct written testimony'. This is the best way to introduce into the record
factual information (evidence) necessary to establish your qualifications as an
expert witness and to present your factual material concerning the uses of the
pesticide and the effects of using it. The degree of consideration given to your
testimony (evidentiary weight) by the ALJ when reaching a decision following the
hearing is determined by the perceived credibility of your testimony.
Cross-examination allows an 'opponent' to question your qualifications as a
witness and to determine the reliability (credibility) of your direct written
testimony. The scope of allowable cross-examination is partly determined by your
submitted direct testimony. Any matter to which a witness testifies on direct
examination can be the subject of cross-examination. Following cross-
examination, the attorney calling you as a witness can question you to clarify
responses given to questions asked during cross-examination-this is called 're-
direct.' Following this, the cross-examining attorney can requestion you on
testimony presented on redirect examination.
Generally, the cross-examining attorney seeks to discredit your testimony
or minimize the degree of consideration the decision-maker will give to it in
reaching a final decision. The cross-examining attorney may also try to use a
witness's testimony to contribute to the other side's arguments, possibly through
hypothetical questions or by using parts of submitted testimony to corroborate
arguments made by the 'other side'. If under cross-examination a witness appears
confused and unsure of his testimony, such testimony (evidence) may be accorded
little evidentiary weight in the ALJ's decision and in any subsequent appeals.
L RELIABLE INFORMATION-Use only reliable information to back up
conclusions in written direct testimony.
A. In determining if information is reliable, ask:
1. Does the information represent conditions present in relevant
agricultural production areas?
a. Was the scientific methodology valid?
b. Were all relevant factors considered in
generating such information?
c. Do the sources of information appear
to be, or are they in fact biased?
d. Can the information be verified by
replication or has it been reviewed
and accepted by competent peers?
Frequently the cross-examining attorney's strategy centers on discrediting
the witness's testimony by establishing or implying that the sources for the
witness's back-up information employed unsound scientific methodology,
generated data of limited applicability, omitted relevant variables or were biased.
When any of these conditions are established or implied, the witness's
conclusions submitted as evidence may be rendered virtually worthless or at least
suspect. Subsequently, less weight is given the witness's testimony. Additionally,
the witness's credibility will be adversely affected.
Facts: In written direct testimony the witness stated that trace
amounts of the pesticide subject to special review could be
'totally' removed from water. Cross-examination was directed
toward implying that the studies upon which this statement was
based were unreliable in that they were incomplete and employed
Q You haven't attached any of these studies as exhibits to
Q were they strictly laboratory studies?
A Yes. Note: Here the implication is made that the
studies' results may be inapplicable to actual field
Q You haven't set out the protocols?
Q You haven't set forth any descriptions of the studies'
parameters, any of the studies' conditions or variables,
Following this line of questioning, the ALJ clearly stated the
weaknesses established by the cross-examiner's questions.
ALJ You don't even give the times or the time of treatment or
the method by which it was done. So it really is nothing
more than a very general description.
Again, it is usually the inference, not an actual demonstration of
unreliability which reduces the weight given the testimony. It is possible,
however, to avoid or mitigate these problems and strengthen submitted testimony.
Make sure that your analysis and the information relied upon for that
analysis are scientifically valid. Question yourself:
1. Who conducted the study?
2. When was it done?
3. What was its purpose?
4. Where was it done?
5. Was the methodology used scientifically valid and applicable to your
6. What are the weak units in the research?
7. What variables were considered in generating the data?
8. Have relevant factors been omitted?
9. If there are omissions, is consideration of the omitted variables
necessary for generating reliable data?
10. Could the sources have generated biased data?
If you lack confidence in some of the information available, do not base
your conclusions on such information. However, if you believe the sources and the
information are reliable, establish such reliability in your direct written
testimony. First, attach a description of studies you relied upon in reaching
conclusions. If there were omissions of relevant variables, explain why the data
generated are still reliable. Develop and explain why the methodology is valid.
This is especially true where the current state-of-the-art has inherent
weaknesses. Address these weaknesses. If these weaknesses are later raised on
cross-examination, you will have offered an effective rebuttal to an implication of
unreliability. It is important to establish the reliability of information in direct
written testimony, because you may not be given an opportunity to do so at the
In the preceding example, the witness should have set forth a thorough
description of the study parameters, conditions and variables. Additionally, an
explanation of why the laboratory studies relied upon produced results relevant
and applicable to field conditions would have enhanced the weight given to
statements based on such studies.
In response to the ALJ's comment, if a study was conducted over a period
of time, be prepared to discuss the scientific validity in the usage of such a time
frame. Be prepared to defend the methodologies used in the studies.
Finally, avoid using data from experimental studies conducted on crops for
which the reviewed pesticide cannot be applied legally. Conclusions based on such
studies probably will be held inadmissable.
B. MULTIPLE SOURCES OF INFORMATION-Attempt to gather
reliable information from as many relevant sources as possible.
Unless all relevant sources are tapped, the evidentiary weight given
your conclusions may be affected adversely.
While it is not always possible to gather information from every available
source, especially with time and resource constraints, every effort should be made
to do so. The evidentiary weight given to your statements will be affected by the
completeness of the information or data backing your statement. Frequently the
cross-examining attorney will seek to show that your conclusions are based on
biased, inaccurate, irrelevant or incomplete information. By establishing that
information is available from more sources than you have consulted, especially if
untapped sources appear to be primary sources, the cross-examining attorney will
successfully lower the evidentiary weight given to your conclusions.
1. Information not gathered from all relevant sources raises the
a. The witness is not adequately prepared.
b. The witness's conclusions may have been altered had
other relevant data been used.
c. The witness's conclusions are of limited value.
Facts: Through written direct testimony, the witness concluded
that fatal poisoning incidents involving the reviewed pesticide
were extremely rare.
Q Did you in the course of your conclusion check with the
HEW Poison Control Center in Atlanta?
A No, I didn't.
Q Did you ever check with EPA which has a computer
printout of pesticide injuries from all over the country?
Q Did you check with your State Department of Agriculture
which is primarily responsible for enforcing pesticide
laws and for compiling statistics on injuries to workers?
At this point sufficient doubt has been raised, on the record, as to this
witness's conclusion. It is immaterial that these sources may not have had any
record of injuries. Here, through the attorney's cross-examination, the record
reflects that the witness's conclusion is not based on all currently available and
probably very relevant information.
In this example, if, in fact, HEW did maintain complete injury records, such
records would be a primary source of data relevant to pesticide toxicity in
humans. To adequately prepare the above testimony and to insure that the
researcher's conclusion is given sufficient evidentiary weight, the witness's
conclusion should have been based, at least in part, on data obtained from HEW's
Poison Control Center.
To avoid these problems, ask:
Do these sources provide data or information reflective of all
relevant existing conditions or occurrences? This includes
considering whether the utilized sources generated data
reflecting an organizational or other bias.
If you have answered the above question in the affirmative:
1. Establish in your written direct testimony that the sources
consulted provide sufficient, unbiased and reliable
information on the subject to which you are testifying; and
2. The conclusion drawn is valid and reliable by judgment,
statistics or both.
If you have answered the question in the negative:
1. Seek other sources of information until sufficient ones are
located. Research thoroughly.
2. If sufficient relevant sources cannot be located, you must
simply admit that the needed information is unknown (see,
this Chapter, Section II.A.2).
C. Document sources of information-poor documentation can affect
the credibility of "on the record" testimony.
Where your information comes from, who generated it, the methodology
employed, and when and why the information was generated are all important
considerations in assigning 'evidentiary weight' to statements and conclusions
based on such information. These same factors are important in determining your
credibility as a witness. Did the witness generate the information, estimate it, or
extrapolate it out of context? When it is advantageous to do so, the cross-
examining attorney will strive to establish or imply some of the above factors in
order to soften the impact assigned to your conclusions.
Whenever poor documentation exists, such a line of cross-examination will
be advantageous in discrediting your written direct testimony. Regardless of
whether your sources of information are extremely reliable, if such sources are
unverifiable, an implication can be raised that your information is not accurate or
Facts: Witness had concluded in direct written testimony
that the level of usage of the reviewed pesticide had
remained the same over the past few years. The witness did
not include any data on which this conclusion was based in
direct written tesitmony, nor were any sources for such data
Q What is the basis for that conclusion?
A I received a letter from Mr. A, and spoke with Drs., B
Q Do you know Mr. A's source of data?
Q Does he cite where the data came from?
A No, he doesn't.
Q Well, your other source was Drs. B and C, is that right?
Q Did you ask them the basis of their information?
A I did not specifically ask them.
Q Did you ask them how they would know?
In light of other witness's documented and verifiable testimony that the
pesticide's usage had decreased significantly, very little credibility was given to
this witness's conclusion.
To avoid loss of credibility when gathering information ask and document:
Who generated the information? If information is acquired from
an individual ask if they or another compiled the information.
When was the information generated?
What methodology was employed?
Why was it generated?
Where was the information generated-laboratory or field
conditions in one or more states?
See this chapter, Section I.E.
Finally, if tables, graphs or charts are submitted as part of the written
direct testimony, cite the sources for data used to construct them.
D. Establish the validity of your underlying assumptions and
interpretations of studies used as a foundation for testimonial
If it is established or inferred that your assumptions or interpretations are
erroneous, the evidentiary weight afforded your testimony will be minimal.
Again, your credibility as a witness will also suffer, for the ALJ may infer that
other testimonial conclusions are based on erroneous assumptions or
The need to establish validity is especially true when, on their face, such
assumptions or interpretations appear false or inaccurate.
Facts: Witness testified to the probability of well
contamination by the reviewed pesticide. The witness
concluded that the likelihood of contamination was minimal,
and based this conclusion upon an interpretation of a
previous sampling study. No written explanation was given
as to the validity of this interpretation. Cross-examination
was directed at establishing exactly what the sampling
study's results were, and what the witness's interpretation
was of that study.
Q Your interpretation is that the reviewed pesticide was
found in only a few of the many wells sampled?
Q What's the total number of wells sampled?
A Several hundred.
A More than that.
A Somewhere in that category?
Q Well, there were 785 samples, with 283 positives.
Would 283 positives out of 785 samples be a 'few?'
A In this context I would describe it as so.
On its face, the witness's interpretation seems puzzling. However, there
could be a valid scientific reason for such an interpretation. Without the record
reflecting a valid reason, the witness's interpretation and hence conclusion
appears patently erroneous. When given an opportunity to explain this
interpretation, the witness never quite overcame the implication of invalidity.
Remember, you can probably explain interpretations or assumptions far more
effectively in written testimony than during on-the-spot cross-examination. It is
therefore better to counter any negative inferences in written testimony than
E. Whenever possible, generate information and conclusions for the
largest production environments. Limited applicability can affect
the overall evidentiary weight of your testimony.
While your underlying information, assumptions and conclusions may be
scientifically valid and reliable, cross-examination may establish or imply that
such validity or reliability is limited to a specific geographic production situation
or for limited purposes. Subsequently, the overall evidentiary weight of your
testimony may be doubted.
For example, if data are collected from just one state or soil type, and a
conclusion is based on an analysis of these data, the conclusion will be susceptible
to an inference that it is valid only for conditions as they exist in that state or
that soil type. Subsequently, your testimony has limited value.
Facts: A witness testified that use of the reviewed
pesticide would increase yield. Cross-examination centered
on the validity of the data backing that conclusion, including
the geographic limits of such data.
Q Is it your testimony that the yield information, when
you discuss yield, that the data was from the A and B
Q Was that data from yields all over the country or just
from one state?
A Just one state.
Q (Then) it is true that you haven't included any other
experimental'data, is that true?
Q Are the conditions in the area in which the yield data
was generated unique to that area?
A Some conditions certainly are. The soil type, the
amount of water available, the kinds of agriculture,
the varieties (of the tested crop) that are grown, are
unique when you take them all together.
At this point, the limited relevance of the data backing this witness's
conclusion has been established for the record. While this witness's conclusion
may be valid in the study area, the uniqueness of that area makes it inapplicable
to other agricultural areas where the reviewed pesticide may be used.
When your information, assumptions or conclusions are susceptible to an
inference of limited relevance, try to establish in written direct testimony the
applicability of such information, assumptions or conclusions to the most
extensive geographic production area possible. In so doing you will have enhanced
the evidentiary weight given your testimony and defeated an inference that your
conclusions are of limited relevance.
H. DATA GAP-UNAVAILABLE RELEVANT DATA-Conclusions based on
insufficient or unreliable data are easily discredited during cross-
Given time and resource constraints it may not always be possible to gather
reliable information or conduct a thorough analysis. Frequently, the witness must
assess the impact of suspending or cancelling a pesticide's registration without
access to all relevant data. When this occurs, the scientist testifying to the
reviewed pesticide's benefits is placed in a difficult situation. Given the need to
quantify impacts or reach other conclusions, it is tempting to make statements
you personally believe to be true, based on the best information you have, but
which do not have complete scientific backing.
Relevant data may be unavailable due to:
Time and resource constraints.
Unreliability of available sources' scientific methodology.
An oversight during literature review.
Narrow applicability of underlying assumptions.
Weaknesses in state-of-the-art.
Omissions of important variables in the analytical process.
Additionally, relevant data may be difficult to retrieve because most agricultural
research previously conducted may have been designed to answer questions
different from those sought to be answered at the hearing.
When such a gap in data exists you should:
A. Assuming your available data are reliable, scrutinize such data to see
if it alone, in light of the missing data, can adequately support your
conclusions. Ask, is the quantity of available reliable data sufficient
to back up a conclusion such that the conclusion can withstand
If unsure of this answer, or if you feel that the available reliable data are
insufficient by themselves to support a conclusion or conclusions, see this chapter,
1. If the available reliable data are by themselves sufficient to
formulate accurate and viable conclusions, you should when
presenting such conclusions in your written direct testimony:
Address the fact that not all relevant data were
Why the data were not considered; and
Establish, if possible, why your conclusions are not
affected significantly by the missing data.
If you do not address the weaknesses of your conclusions in your written
direct testimony, they will be addressed during cross-examination. Although your
conclusions may be scientifically supportable and valid, if cross-examination
demonstrates that some relevant questions were not considered, because data
were not available, an inference will be raised that your conclusions are not
reliable. Remember, you may not be provided an adequate opportunity to rebut
this inference at the hearing.
Facts: A witness testified on the impact of a one year
suspension of the reviewed pesticide. The testimony was
based on an analysis of some yield loss data. Here, the
expected degree of impact testified to could be
scientifically valid considering only the yield loss data
available. However, this witness did not establish that an
accurate conclusion could be reached using only those data.
Q You did not consider yield loss in future years as a
result of the loss of the pesticide for the first year?
A That's correct.
Q Isn't it true that one year loss of the pesticide would
probably carry over into succeeding years?
A It's possible.
Q Also, that such loss would result in further losses due
to tree mortality?
A It's possible, I would not say it would probably occur,
but it may occur.
Further questioning proceeded along this same line. The record reflected
that the witness's conclusions were not based on all relevant data. Subsequently,
an inference was raised that the witness's conclusion would have been different
had additional data been considered. Regardless of whether such an inference was
true, the witness submitted nothing to refute it, nor was the witness given an
adequate opportunity to rebut the inference.
Another witness testified to the extent of the reviewed pesticide's usage.
Cross-examination established that not all sources of relevant data were
consulted, thereby raising the above described inference. In direct written
testimony the witness did not state that his conclusions were based upon 99
percent of the available relevant data, and that the untapped data would have
little effect upon the conclusions.
Remember you must:
Demonstrate that the missing data are insignificant.
Demonstrate that the reliable data on which your conclusions
were based are sufficient to render a valid conclusion.
2. When a significant gap in data exists, state in written direct testimony
that such a gap exists and that the available data are an insufficient basis for a
conclusion or a calculation of impact. The ALJ will appreciate your honesty and
your credibility as a witness will be enhanced. Additionally, by specifically
stating the reasons why the data were unobtainable, you have established on the
record that it was impossible to complete a fully adequate benefit analysis. This
may imply strongly that a decision reached now on the merits of suspension or
cancellation could be premature.
Remember, if you do make conclusionary statements in light of a
significant gap in data, the credibility of such statements is easily destroyed on
cross-examination and the credibility of your entire testimony will suffer.
Whatever evidentiary value you hoped to achieve will be damaged.
You should properly state what the best available data indicate. If these
data can support an estimate or range of impact, present this and demonstrate
why it is valid and reliable. While little evidentiary weight may be given this
estimate, it may be helpful to the ALJ in weighing the risk versus benefits
By following the above procedure, you will have presented an analysis as
objectively as possible while maintaining your credibility, or perhaps enhancing
it. Additionally other testimonial conclusions supportable by sufficient reliable
data will have a greater chance of being given their appropriate evidentiary
m. ALTERNATIVE CONTROL MEASURES
It is important to know the registration status of alternative pesticides
when preparing written direct testimony.
A. Be familiar with alternative control measures. Demonstrate in your
written testimony a familiarity with their strengths and weaknesses in
relation to those of the reviewed pesticide. Failure to do so may
lower the credibility of your testimony and create an implication of
One aspect of the "benefits" presentation should be in appraising the legally
available alternatives, if any, to using the reviewed pesticides. Depending on your
field of expertise, your testimony should be directed at such matters as cost,
efficacy, ease of application and timing of application [see this chapter, Section
V, Avoid testifying on matters outside your field of expertise]. As an expert you
will be expected to be familiar with the benefits of using alternative means of
control. Be as familiar as possible with all currently available pro and con studies
relevant to alternative controls. You can expect to be cross-examined on the
usage of various alternatives to the reviewed pesticide. If you have not been
afforded enough time to research all available literature, state this in your
To avoid an appearance of bias, discuss the strengths and weaknesses of
alternative control measures as well as those of the reviewed pesticide. Note:
This does not mean you should discuss the risks associated with the reviewed
pesticide. In the past, many hearings were divided into two phases, and the phase
you will be involved with may concern only the benefits. In fact, you should avoid
comparing any risks of the reviewed pesticide's use with those of the
alternatives. Such discussion may be ruled inadmissable, but more importantly if
found admissable, you will open the 'door' to cross-examination on the reviewed
pesticide's risks. Normally, the 'door' would be closed to such risk testimony.
Moreover, if you do not discuss all the risks of the reviewed pesticide while
discussing all the risks associated with alternatives, you may appear to be biased.
Facts: The witness testified to the benefits of using
the reviewed pesticide. Part of this witness's
testimony was that the reviewed pesticide posed less
risks than the alternative pesticides, and because of
this it was more advantageous for growers to use.
Q When you listed the reviewed pesticide as
excellent, how did you define toxicity hazard?
A I believe I said lower. I said acute toxicity.
Q Were you aware at the time that you culled this
table that there were published reports of
testicular atrophy to male workers in plants
manufacturing the reviewed pesticide?
A Chronic effects, not acute.
At this stage an otherwise inadmissable statement and question-the
chronic risks posed by the reviewed pesticide-were allowed into the record due to
this witness having 'opened the door' by initially raising the issue of risks.
Q Why didn't your list of characteristics include
A Because if you will look at the title of the table
it is a comparison among the reviewed pesticide
and alternative pesticides with respect to major
advantages of using the reviewed pesticide.
Q Is it fair to characterize this table then as
essentially an advocacy kind of analysis for the
reviewed pesticide, a brief in effect?
A This table is probably closer to being a brief than
any other part of the report.
At this stage the record reflects:
This witness's conclusion is based on consideration of all risks
inherent in using alternative pesticides, but not all the risks
of using the reviewed pesticide. This raises an inference that
the relative advantages of using the reviewed pesticide are
not as great as this witness indicated.
The witness presented an advocacy type analysis. This raises
an inference that this witness and the conclusions reached are
When discussing the weaknesses in alternative controls, if you do not
address the reviewed pesticide's weaknesses or the alternative's strengths, you can
be assured that the cross-examining attorney will raise these questions. If this
occurs, you may not be given an adequate opportunity to fully demonstrate the
relative benefits of using the reviewed pesticide and the record could reflect that:
You have not adequately researched the problem.
Alternative controls confer, or may confer, similar benefits
in comparison to the reviewed pesticide.
Facts: Witness testified as to the benefits of the
reviewed pesticide. Counsel's cross-examination
centered toward apparent weaknesses in the
witness's benefits testimony.
Q Have there been studies on the effect of this
pesticide on disease problems?
A There have been a variety of this kind of study.
Q Would the use of this pesticide exacerbate or
increase any other disease problems in these crops?
A None occurs to me.
Q But, you are not aware of any studies dealing with
this problem at all?
A I am not aware.
At this point, regardless of whether this pesticide's usage will increase
other diseases, the issue is raised on the record and the witness at least appears
unfamiliar with a very relevant benefit's consideration.
Cross-examination continued to explore other weaknesses in use of the
reviewed pesticide and its relation to alternate means of control.
Q Are there any nematodes that are beneficial to the
crops you discussed?
A There are nematodes that are spoken of as
beneficial without clear proof.
Q Do these nematodes eat other nematodes?
A Yes, they do.
Q Isn't it true that a particular organism is effective
in reducing root nematodes?
A It was reported as so doing.
Q The use of this pesticide would kill off that class (of
Q Are you familiar with the work of Dr. Z?
A I have not read his work in detail. I am not
At this point, two issues have been raised on the record:
1. A weakness in the reviewed pesticide may exist.
2. An alternative means of control was apparently not considered
by this witness.
In fact, even if the effect of the reviewed pesticide on alleged beneficial
is not really a weakness and even if use of predatory nematodes is not a viable
alternative, the record will not reflect this. Doubt is raised as to the validity of
the witness's testimonial conclusion. Had the witness addressed the issue of
biological controls, been familiar with the work in this field and established in
written testimony the weaknesses in this alternative's usage, the record would
contain an adequate response to this attempt to discount the reviewed pesticide's
To demonstrate your familiarity and adequately develop the record, the
following is suggested:
First, in your written testimony, address the reviewed pesticide's
weaknesses as well as benefits. Weaknesses include not only the limited
effectiveness of the reviewed pesticide, but the benefits of alternative controls
whether they be chemical or biological.
Second, address and document the weaknesses, if any, of alternative means
of control. Then discuss the overall benefits of using the reviewed pesticide in
light of its weaknesses and the alternative's benefits and weaknesses.
Demonstration of your knowledge and consideration of the above, coupled
with an objective, well-reasoned conclusion that the reviewed pesticide (if it is) is
still more desirable, will enhance your credibility and strengthen the evidentiary
value of your testimony.
Remember, you may be totally familiar with, have evaluated and are
adequately prepared to discuss all relevant issues related to the reviewed
pesticide's benefits. However, unless the record reflects this, the weight given
your testimony will probably be less than what it could and should be. Your
written testimony is the best place to demonstrate such familiarity and
consideration. Also, only make conclusions if you have sufficient reliable
information to back them up.
IV. BRIDGING THE TERMINOLOGY GAP-The scientist's use and
understanding of terminology is not always similarly perceived and
understood by the cross-examining attorney or decision maker.
The attorney's concern with the legal implications of terms differs from
the scientist's concern in adequately conveying research results. As a witness, you
are working within a legal setting so it is important that you attempt to 'bridge'
the gap in terminology. This does not mean that you must thoroughly understand
and use 'legalese.' You should however strive to communicate clearly with the
cross-examining attorney and decision maker.
A. Lack of clarity or confusion in terminology can result in:
The full impact of the witness's statements being diluted
with less credibility being accorded the witness's
Creation of an air of confusion between the witness
scientist and the cross-examining attorney or decision
Facts: The witness testified to well water contamination.
During this testimony, the witness stated that a substantial
portion of wells was contaminated with the reviewed
Q What do you mean by 'substantial?'
A It cannot really be quantified precisely.
Q (but) What do you mean by substantial? 51%, 30%?
A What I think is that it can only be used subjectively.
Q Pm asking what your understanding is, what you mean
by the term.
A Let's put at least 70% under the range of substantial
for the sake of a number and to get by this issue.
Here, the lawyer attempted to quantify this scientist's use of the term
'substantial.' Through cross-examination the attorney has obtained an 'on the
record' admission that the term has been used in a subjective fashion.
Additionally, the scientist has assigned a seemingly random percentage to the
term, and confusion over what 'substantial' means has been established 'on the
record.' Other general terms such as 'severe,' 'a few,' and 'moderate' pose similar
difficulties. In general, it is well to avoid qualitative terms when possible.
While it is not always possible to avoid 'generalities,' every effort should be
made to clarify such terms. When general terms can be given a quantifiable
percentage or range, do so, and subsequently explain why this percentage or range
is meaningful. Some confusion could have been avoided had the witness in the
above example stated that at least 60 or 70 percent of the wells sampled had been
There's no guarantee that confusion will be avoided, but if you strive to:
Clarify your terminology, especially generalities;
Write and speak with a lay audience in mind; and
Be consistent with your terminology;
you should avoid most misunderstandings.
Remember, the weight accorded your testimony will be enhanced when the
scientist and the lawyer can communicate clearly.
B. USING STATISTICS-Clarify all statistics by specifically explaining
what quoted numbers represent.
In most instances, quoted statistics may be clear and self-explanatory.
However, there are times when the meaning of statistics is not clear and
ambiguous interpretations may be made.
1. If statistical representations are not clear, the witness risks:
Not clearly establishing evidence on the record.
Appearing inconsistent at the hearing and subsequently
lowering the credibility and possibly the weight given to
Since it may not be possible to know when your use of statistics may be
misunderstood or misinterpreted, you should attempt to explain them clearly in
Facts: In written direct testimony, the witness testified
that suspended usage of the reviewed pesticide had resulted
in a yield loss of 8.5% of the 23 million acres to which it
was formerly applied.
Q When you used the above statistics did you mean to
imply that entire acres were lost, or that there was an
8.5% yield decrease on the affected area?
A Yield decrease on the affected areas.
Q So we are not talking about loss of 8.5% of these
A No, we're talking about yield loss.
Q Of 8.5% on those acres? Or yield loss on 8.5% of the
A 8.5% of the acres, yield loss of 8.5% of the total acres.
Q 8.5% of those total acres had yield loss, right?
Q We agreed that the 8.5% represented not yield loss,
but rather it represented the percentage of the 23
million acres on which there would be some yield loss,
A It still represents your yield loss.
Q I am trying to understand the magnitude of the yield
loss on those 8.5% of the acres.
A I don't think you understand what is written, what I
was saying is that 8.5% of the 23 million acres. That's
an 8.5% loss on the 23 million acres.
Q I thought you said 8.5 represented the number of acres
of the 23 million, for which there would be a yield loss.
A No, 8.5% represents the loss on 23 million acres. The
percentage loss on the 23 million acres.
Q Are you changing your testimony now?
A No, I didn't say that before.
At this point, the witness has made inconsistent statements, seems
confused, and the significance of the quoted statistics is still not clear.
Eventually, the witness does state that the 8.5% represents the average yield loss
per acre for the entire 23 million acres. Had the witness clearly stated this in the
submitted written direct testimony, all problems associated with the above
dialogue would have been avoided.
While this example may seem extreme, and may reflect that it's the
attorney who is confused, it still demonstrates the need for the witness to clarify
adequately all statistical quotes.
V. TESTIFY ONLY TO MATTERS WITHIN YOUR FIELD OF EXPERTISE
A. Stating conclusions not within your field of expertise can result in:
1. Subjecting yourself to cross-examination in areas in which you
are not qualified and generally not prepared to defend or discuss
at an expert level.
2. Lowering the credibility of your overall testimony including that
part which is supportable from within your area of expertise.
3. Affecting your credibility as a witness.
Confining conclusions to matters within your field of expertise means:
Cross-examination is limited to your area of expertise.
Questions posed outside your field of expertise can be
successfully objected to, or as a witness you have a right to
respond: "I am not qualified as an expert in that field."
Misleading or possibly erroneous statements can be avoided and
not become part of the record.
Facts: Witness, a plant scientist, testified that the
reviewed pesticide was both the only effective and
economical means of reducing pest populations. Cross-
examination centered on the economic underpinnings of this
Q Are you an economist?
Q You have not studied evidence on which you are basing
Q So what you are saying is you are not qualified to make
A Except from my acquired knowledge.
At this point, serious doubt is introduced as to the validity of this witness's
statement. The acquired knowledge the court is interested in is plant science, not
economics. As the witness did not have the background to defend the conclusion
adequately, the entire testimony risked being discredited, even that testimony the
witness is qualified to make and which may be true.
Facts: Witness, a plant scientist, testified that when
economic factors were considered, the reviewed pesticide
was the pesticide of choice. Here again, the witness had no
economic background, and so stated on the record.
Q Do economic considerations include the price of the
A What price?
Q The present price.
Q If the present price were to continue at the level it is
or increase, would it be possible that the reviewed
pesticide would no longer be the pesticide of choice?
A Yes, it is a possibility.
Since this witness had 'opened the door' to economic considerations an
objection to the above question was overruled. Not being an economist, this
witness cannot defend the conclusion adequately. Additionally, the witness's
response may have placed a possibly erroneous statement on the record. While
this statement may not be given much weight, it may however influence the final
evaluation of the benefits' case.
The cross-examining attorney's goal of minimizing the weight of the
witness's testimony on the record is simplified when the witness 'offers' opinions
which they cannot defend.
Both examples illustrate that the witnesses had no economic expertise.
Here, the witnesses were called to testify as experts in plant science, not
economics. The credibility accorded their statements is dependent on the
expertise they demonstrate. Avoid giving 'lay opinions.' Generally, you will not
be prepared to answer questions and defend statements in fields not within your
area of expertise.
B. If it is necessary to make conclusionary statements outside your
area of expertise, be certain those conclusions are supported by
sufficient scientific data and that you fully understand the
In the previous examples, the witnesses' statements were outside their
fields of expertise, and their testimony was not supportable with valid scientific
data. Had the statements been substantiated with an adequately researched base
(e.g. economic model), the cross-examiners' questions probably could have been
deferred to a qualified economist. As an example, the witnesses could have stated
that their conclusionary remarks were drawn from credible economic research.
Further attempts to attack their economic conclusions could then have been
deferred to an agricultural economist. Note however that it is probable that little
evidentiary weight will be given to your testimony concerning areas outside your
field of expertise.
VI. FUNDING FROM POTENTIALLY BIASED SOURCES-Know what
percentage of your total research budget has been or is presently
supplemented by grants from sources that might be accused of bias.
Agricultural scientists at land grant colleges are known for their scientific
objectivity. However, such objectivity may be subject to scrutiny in an
A common strategy of cross-examining attorneys is to establish that you
have in the past or are presently receiving a portion of your research funding from
a potentially biased source. Once established, an implication is made that your
own testimony may be biased. Your credibility as a witness, and subsequently the
evidentiary weight accorded your statements, will be affected by this implication.
The most effective verbal rebuttal to such an allegation is in establishing
As a scientist you adhere to the scientific ethic of objectivity.
Grants for research accepted by state agricultural scientists
never predetermine the results of the research. Moreover,
results of the research are never the exclusive property of the
grantor; they become part of the public domain of scientific
If it is true, funds received from such sources are only a small
portion of your total research budget. If in fact these funds
have been or currently are a large portion of your research
budget, you can offer the above verbal rebuttal and you should
attach to your written testimony, if feasible, a copy of the
terms of the grants.
Facts: Cross-examination of agricultural scientist.
Q You received $500 from Corporation X for research in
pest control, is that correct?
A I believe so.
Q In August, $1,000 from Corporation Y for pest control
Q Did you receive several grants from Corporation Z for
research on pest control?
Q And in June, $1,000 from Corporation Y again?
A I can only say once again that there have been several
such small grants.
At this point, an implication is made that the witness's testimony may be
biased. Nothing substantial has been introduced by this witness to counter such an
implication. Here, the witness should have qualified the response rather than
merely characterizing these funds as small grants.
VII. FURNISH A PUBLICATION LIST-If you have publications, submit a listing
of them with your testimony.
A. If a publication list is not submitted:
Your credibility as an expert witness may be affected
The evidentiary weight given your testimony can be affected
You are selected to testify because of your expertise in a given field.
Again, the cross-examining attorney may attempt to discredit your testimony by
establishing or implying that you lack the requisite background to testify. If the
cross-examining attorney is successful, your credibility as an expert witness will
be shattered, and little or no evidentiary weight will be accorded your testimony.
Additionally, if the ALJ believes the lack of a publication list prejudices the
cross-examining attorney's ability to adequately cross-examine (without the list
the attorney may not have the opportunity to scrutinize prior publications), the
ALJ probably will lessen the evidentiary weight of any testimony which is not
subject to adequate cross-examination.
Providing a publication list is especially important when:
The witness does not possess an advanced degree in the
subject matter to which he is testifying.
The witness possesses an advanced degree which is only
indirectly related to the subject matter to which he is
As a witness, you may not be given an adequate opportunity during cross-
examination to establish your publication credentials in the area in which you are
testifying. Subsequently, before 'your' attorney can re-establish your credibility, a
lingering doubt as to your expertise may be implanted in the mind of the ALJ
which will adversely affect the weight given your testimony.
Facts: Witness, a civil engineer, testified as to ground water
contamination by the reviewed pesticide. Cross-examination
was directed at whether the witness should be considered an
expert witness in the area of ground water contamination, and
subsequently the weight the ALJ should assign this witness's
Q Do you hold any advanced degrees in agriculture?
Q Do you hold a graduate degree in hydrology?
Q Have you published any articles in journals?
Q Are these listed on the curriculum vitae you have
Q Why not?
A I did not think they were relevant.
Q Would you list them now?
A I can't remember them all.
Q Have you brought a list with you?
Q Did any of them concern ground water contamination
by organic pollutants?
A Not directly. Pollutants in general; none dealt with
Here the cross-examining attorney objected to the fact that a list of
publications was not provided.
Cross-attorney: I do not have the opportunity to cross-examine
the witness about anything on the list.
ALJ in supporting this objection: I think (the list) is relevant to
the credibility of this witness and his qualifications generally.
We don't have it (the list) and it affects counsel's ability to
Cross-attorney: Additionally, this witness may have made prior
inconsistent statements and we have no ability to check for
At this point, an implication has been made that this witness may not truly
be an "expert." Additionally, the ALJ has indicated that adequate cross-
examination is not possible, raising the likelihood that less credibility will be given
some or all of this witness's testimony.
Had this witness furnished a publication list, these problems may have been
avoided. Remember, regardless of whether you feel all or some of your past
publications are irrelevant to the subject matter to which you are testifying, list
them and submit the list with your written testimony or statement-it can only
help you. As illustrated above, it is not always easy to recollect past publications
when on the "stand" during a hearing. Even if past publications can be
recollected, the ALJ can nevertheless rule that adequate opportunity for cross-
examination is lacking and thereby discount some or all of your testimony.
I. RESPONDING TO CROSS-EXAMINATION-As a general rule, always strive
for clarity and accuracy.
By clarifying and characterizing submitted testimony, answers given in
response to the cross-examiner's questions affect the weight of such testimony.
Do not 'fear' cross-examination. Counsel is not attempting to 'trip-you-up' or
'assassinate' your character. While it is true that counsel will seek to diminish the
evidentiary impact of some of your testimony, the attorney is merely attempting
to place your testimony in its 'proper light.' In so doing, the attorney seeks to
Conclusionary statements are accurate.
Firm support exists for these conclusionary statements.
Testimony would be the same if circumstances changed.
The witness means what the testimony appears to convey.
Clarity and accuracy are paramount. You must insure that your answers
accurately clarify and characterize submitted testimony.
A. When the cross-examining attorney's question is unclear-SEEK
Do not be afraid or hesitate to seek clarification if the attorney's question
is unclear. Again, the purpose of cross-examination is to discover 'the truth.' If a
question is answered by a witness who does not know the true nature of what is
being asked, misleading evidence may be placed on the record.
The need to seek clarification arises when vague or overly broad questions
are posed. Try to get the attorney to be more specific and to clarify the question.
Facts: Cross-examination of an expert agricultural witness.
Q There are marketing orders in many commodities, is that
A What do you define by many? (This is a good response).
Q Why were they formed?
A For the commodities in question here?
Q You have no idea why marketing orders were created?
A For the crops in question here?
Q Isn't it true that the marketing order in grapes is designed
and created to increase revenues to the growers?
A For which grape type?
Here, the witness sought clarity by narrowing the question to specifics.
Had the witness answered the attorney's questions without seeking clarification,
possible misleading 'evidence' may have entered the record. Note however,
responding to questions with questions can create a bad impression; avoid
B. When questioned about statements made in written direct testimony,
you may request that the cross-examining attorney specifically cite
the page and line from which the question was generated.
1. Answering without first examining what you specifically stated in
written direct testimony runs the risk of:
a. Having your testimony mischaracterized.
b. Making inconsistent statements.
Facts: Cross-examination of expert witness.
Q Is it your testimony that your projected yield losses for
citrus would represent a serious impact, particularly if the
projected loss levels were experienced on all or most of any
particular grower's acreage?
A Can you point specifically (to) where you are referring to?
This response led the questioner to say, page X, first sentence.
C. Do not allow the cross-examining attorney the opportunity to
mischaracterize your testimony.
Facts: Cross-examination of expert witness.
Q Isn't it your statement that at preplant or at planting, the
reviewed pesticide's use is critical under these
A What's stated there is as follows. [The witness then read
directly from written testimony.] "Use of the reviewed
pesticide is critical only when conditions...prohibit the
grower from using a preplant alternative."
Additionally, had this witness been unsure of where in the written direct
testimony the cross-examining attorney was referring, a proper witness response
would have included "What page are you citing from?"
D. When necessary, qualify all responses to cross-examination. This
prevents the cross-examining counsel from inappropriately
stretching your assessment results, extrapolating conclusions out of
context, or mischaracterizing your testimony.
This does not mean that you should be evasive in your response. If a Yes or
No response appears proper, use it. However, when a Yes or No answer could be
misleading, only partly correct, places your testimony in a 'false light,' or does not
adequately answer the question--qualify your response. This may be especially
true when hypothetical questions are posed. Through hypothetical questions, the
cross-examining attorney may attempt to have you apply your data to facts and
circumstances you have not researched or even considered. Not having considered
and evaluated such circumstances, on-the-spot answers may not reflect actual
study results. In such situations, it may be proper to respond, "I cannot say Yes or
No at this point."
Facts: Cross-examination of a witness on a matter not addressed in
the witness's direct testimony.
Q If the suspension were to last more than one year, would you
expect an even more severe impact (than the impact W
A What I would speculate about insofar as the effect in a
period longer than one year is not addressed in my
testimony. Because we were directed...to look at a one year
effect, I can't say at this point what the effect would be if
the period in question was more than one year.
Q If there is a severe pest problem and alternatives cannot be
used and the reviewed pesticide is not available, would yield
losses result on these crops?
A I cannot answer the question specifically. I have no idea
specifically what the yield effects might or might not be if
he could not use this pesticide at planting.
Q Looking at all the data (you've generated), wouldn't it be
accurate to say that in terms of revenue per acre, growers
on the average, cannot be shown to have suffered any losses
A I would not make that conclusion. This data could well
reflect the effect the suspension has had on people who did
not use the pesticide.
Q Isn't it true that looking at yield and revenue figures you've
submitted, there is absolutely no evidence that suspension
has impacted negatively on either yield or revenue per acre?
A I don't think that conclusions can be drawn from this data.
All this tells you (is) that on the average that is true, but I
don't think the conclusion can be drawn that there has been
no yield effect.
Each response avoided an attempt to apply submitted testimonial data to
hypothetical circumstances in which the application of such data would have been
E. Avoid being forced to choose an inappropriate standard of
The cross-examining attorney may seek to have the witness choose a
standard of measurement, which if adopted and applied to data submitted in direct
testimony would either negate that testimony or lessen its impact. If offered a
standard of measurement which is inappropriate in reaching conclusions noted in
State your position on the validity of using such a standard.
Refuse to use the standard by stating that the imposed measurement
will not yield a valid conclusion if applied to the submitted data.
Facts: Witness was being cross-examined on whether an adverse
economic impact resulted from suspended use of the reviewed
pesticide. Data on yield and gross revenue per acre were supplied in
witness's written direct testimony. No data on cost per acre were
submitted. This witness would not make a definitive conclusion as
to whether an adverse economic impact to users of the reviewed
pesticide would and did result from its suspension.
The submitted data 'could' be used to demonstrate that no adverse
economic impact in fact resulted from suspension if certain
standards used to measure economic impact were adopted.
Q And which is, in your mind, a more valid measure of the
impact? Yield per acre or revenue per acre.
A Profit per acre is the most appropriate measure, but we
don't have the means to present that.
Q Well, between yield per acre and revenue per acre for
purposes of an economic assessment of impact, which is the
A I am not sure that there is a better measure. I would prefer
to look at profit per acre.
Q Well, if you want to advise the ALJ on the question of what
the economic impact is, what is the more appropriate index-
-yield per acre or revenue per acre?
A There is no one single appropriate measure to use. Without
knowing what has happened to grower's costs, you can't say
what the economic impact is.
Had the witness chosen either standard for measuring economic impact, a
foundation would have been laid to ask, "Using this standard, do your figures show
any economic impact at all?" While using this standard with the submitted figures
may yield a 'no impact' conclusion, such a conclusion would hardly be accurate or
justifiable, yet it would become part of the record, and could possibly diminish the
weight afforded the benefit's case.
F. If an attorney objects to a question during cross-examination, do not
answer until and unless the objection is overruled.
Frequently during cross-examination, questions are asked in which:
A proper foundation is not laid.
The witness is not qualified to answer.
Irrelevant information is sought.
The questions go beyond the scope of direct examination.
Grounds may exist for the ALJ to sustain the objection; however, if the
witness answers prior to a ruling by the ALJ, unnecessary testimony may be
introduced and become part of the record. Such 'volunteered' testimony may:
Adversely affect your testimony.
'Frustrate' legitimate maneuvers of your attorney.
Facts: Cross-examination of expert witness.
Q Have you ever heard of any growers who illegally used
the reviewed pesticide and were given sanctions by any
Non-Cross-Examining Attorney: I'll object. It's irrelevant.
A [Witness] No.
ALJ: Well, the witness has answered the question so the
objection is overruled.
In this example, the witness's attorney by objecting to the question
attempted to keep testimony potentially damaging and irrelevant to the benefit's
case from becoming part of the record. By responding prior to the ALJ's ruling on
the objection, the witness frustrated the attorney's effort. Subsequently, the
witness was responsible for admitting otherwise inadmissable and potentially
damaging testimony adverse to the witness's own position into the record.
Remember, abide by accepted courtroom procedures and do not answer a
question which is objected to until and unless such objection is overruled.
G. Be familiar with your submitted written direct testimony and other
submitted materials-KNOW THEM WELL.
It is extremely important for you the witness to be very familiar with your
submitted testimony and other submitted materials. READ, READ, AND
REREAD IT. Know it well prior to appearing at the hearing.
Your credibility as a witness is directly affected by your familiarity and
knowledge of the content of submitted written direct testimony. This is
especially true when your submitted testimony includes data generated by others
and you have based conclusions on those data. If at cross-examination it is
established that the witness is not familiar with the submitted data or other
materials within his/her written testimony, conclusions based on suchmaterials
may be given little evidentiary weight. The witness's credibility may be adversely
affected because this conveys the image that:
The witness is inadequately prepared.
Other statements may be based on misinterpreted data.
Unfamiliarity with the testimony has generated inconsistent
Facts: A witness relying on another scientist's study testified that
80 percent of the reviewed pesticide would volatilize following
application. Subsequently, the danger of field labor contamination
was very low. Inspection of the testimony during cross-
examination revealed the witness's lack of understanding and
misinterpretation of the data.
Q In your testimony you state approximately 80% of the
reviewed pesticide is biodegraded.
A I took their data and calculated it.
Q Weren't those figures given as a percentage conversion?
A To tell you the truth, I don't have the slightest idea what
they have there. I don't know what they are talking about
there and I don't know what those intervening columns
really pertain to either.
Q You state that their data indicates there was an 80%
volatilization in three weeks. It is not really possible for
80% to have volatilized and 80% to have biodegraded, is
A It appears 80% biodegraded.
Q And 80% volatilized in the same period?
A I do not understand (their use of) the word volatilizationn)
either. I think I may have made a mistake.
Q So you are not sure whether that listing shows the amount
biodegraded or not?
At this point any conclusions based on this study are virtually worthless. It
is evident to the ALJ that the witness does not know how to interpret the data.
Additionally, the court may infer that other aspects of the witness's testimony are
based on misinterpreted or erroneously applied studies.
As noted, inconsistencies generally can be avoided by having the questioner
specifically cite the page and line from which the question was generated.
However, at times it may be your oral testimony and not the questions which
generate inconsistencies. Again, this is avoided by having a thorough knowledge
of your submitted written direct testimony. You will be more effective as a
witness when sufficiently prepared. This does not mean that you must memorize
everything contained in your written direct testimony and other submitted
materials. However, when statements are based upon studies incorporated within
your testimony and other submitted materials, know:
The study's methodology.
What these studies demonstrate.
What the data in the study results represent.
American farmers, to continue producing food and fiber
abundantly, must continue to have available safe and effective
pesticides. When the registration-and the availability-of a
pesticide is under challenge, it is highly important that reliable
information as to that pesticide's benefits be effectively presented
along with information as to its risks.
Decisions by ALJs and the Administrator of the EPA
concerning registration of a pesticide are necessarily subjective. In
arriving at such a decision, they must 'weigh' conflicting evidence.
If the pesticide's benefits are to receive proper consideration,
benefits testimony must be presented effectively.
This educational guide has stressed repeatedly the need for
careful preparation and presentation of information in adversarial
proceedings before ALJs. Scientists who prepare assessment reports
and who testify at formal administrative hearings must strive to
have their testimony given its due consideration. To present
testimony most effectively, agricultural scientists involved in such
cases must understand the legal machinery and the tactics of
opposing attorneys. This document was prepared to effectuate such
ADMINISTRATIVE HEARINGS: Proceedings, conducted by federal or state
administrative agencies, designed to gather evidence necessary for resolving an
issue or issues.
ALJ: Administrative Law Judge. The ALJ's role is similar to that of trial judges. They
administer oaths, issue subpoenas authorized by law, take or order the taking of
depositions, hold prehearing conferences, (may) question witnesses, regulate the
course of the hearing, rule on procedural motions, make findings of fact and
conclusions of law and issue the initial decision on the question of registration.
BIASED INFORMATION: A corollary to biased sources: Information which is generated
from sources employing parameters, methodology or variables which favor one-
sided rather than objective results. Generally, an implication will be raised that
information generated or supplied by those having or appearing to have a vested
interest in the outcome of the pesticide regulatory hearing are biased and
BIASED SOURCES: Generally refers to individuals, organizations, groups or corporations
who have or appear to have a vested interest in the outcome of pesticide
regulatory hearings. Studies, tests, experiments, or their equivalents can be
biased in the sense that parameters, methodology or the variables employed favor
DIRECT TESTIMONY: Written statements of fact or opinion prepared by a witness for
use at the hearing as evidence. Oral presentation of facts and opinions (on the
subject in issue) made by a witness at the hearing, before being subject to cross-
EVIDENCE: Any type of proof or matter presented at the hearing by a party through the
medium of witnesses or through the medium of documents, records, objects, or
similar materials for the purpose of inducing belief in the minds of the decision-
makers as to their (the parties) contentions. All testimony is evidence, but not all
evidence is testimony.
EVIDENTIARY WEIGHT: This refers to the degree of consideration given to testimony
by the Administrative Law Judge when deciding the issue of registration in
relation to the degree of consideration given to all other testimony on the record.
EXHIBIT: A paper or document produced and exhibited to the ALJ during the hearing, as
a voucher, or in proof of facts, or as otherwise connected with the relevant
subject matter. Written statements of facts or opinions prepared by witnesses, if
accepted by the ALJ, are considered exhibits for the party calling such witnesses.
EXPERT WITNESS: Persons possessing special training or skills, or peculiar knowledge
on certain subjects and who are selected by the court or parties to examine,
estimate and ascertain things and make a report of their findings and opinions.
FORMAL ADMINISTRATIVE HEARINGS: Hearings which are conducted according to a
structured format, as outlined in the Administrative Procedure Act and federal
regulations, with respect to the taking of evidence and the decision making
INSIGNIFICANT DATA-GAP: The quantity of available reliable data, by itself, can
support a conclusion such that the conclusion can withstand scientific scrutiny.
LEGALESE: Words or phrases which have a special or precise meaning to lawyers.
ON THE RECORD TESTIMONY: Oral statements made by a witness while on the stand,
or any part of submitted written statements of fact or opinion prepared by a
witness, not objected to or successfully objected to becomes 'on the record'
PRE-HEARING CONFERENCE: Conferences held before formal administrative hearings
actually commence between the parties to the hearing and the ALJ. The
following matters may be considered at these conferences:
1. The simplification of issues including listing of specific uses to be contested;
2. The possibility of obtaining stipulations of fact and documents;
3. The limitation of the number of expert and other witnesses;
4. Procedures to be used at the hearing;
5. The use of written statements in lieu of oral direct testimony;
6. The intent of any party to request a scientific advisory committee (formed
by the National Academy of Sciences);
7. The issuance of subpoenas;
8. A setting of a time and place for the public hearing;
9. Any other matter that may expedite the hearing or aid in the disposition of
RELEVANT INFORMATION: Information which is applicable to the situation being
assessed. When and where the information was generated and for what purpose or
purposes are important considerations in determining the information's relevance
to situations begin assessed.
RELIABLE INFORMATION: Refers to the quality of the information. Information which
accurately reflects conditions normally encountered in relevant agricultural
production areas. Components of reliability:
1. The methodology used to generate the information is scientifically valid;
2. Relevant important factors or variables were considered in generating the
3. Information sources are not or do not appear to be biased;
4. The information can be verified by replication or has been reviewed and
accepted by competent peers.
SIGNIFICANT DATA-GAP: The quantity of available reliable data, by itself, cannot
support a conclusion such that the conclusion can withstand scientific study.
TESTIMONY: Any oral statements made by a witness at the hearing, or any written
statements of fact or opinion prepared by a witness for use at the hearing as
WITNESS: A person whose declaration is received as evidence, regardless of whether
such declaration is oral or written.