Expert Testimony

Material Information

Expert Testimony


Subjects / Keywords:
Judicial hearing officers ( jstor )
Attorneys ( jstor )
Expert witness testimony ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Expert Testimony, based on presentation November 21, 1986 to the Florida Section- AWRA by Buddy Blain, Tom Cone and Gary Stephens
General Note:
Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 101
Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

Record Information

Source Institution:
Levin College of Law, University of Florida
Holding Location:
Levin College of Law, University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.


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(Based on a presentation November 21, 1986
to the Florida Section AWRA
by Buddy Blain, Tom Cone and Gary Stephens)

I. Environmental Controversies Today

The field of environmental dispute resolution, particularly in
areas where policy and technology are being made up as we go,
requires a new kind of teamwork and mutual understanding between
the various experts who contribute the technical understanding
and insight upon which such decisions should be based and the
lawyers who facilitate the presentation and relate those insights
to rules and statutes.

With increasing frequency, disputes in the environmental and
water resources area are arising (and sometimes are being
resolved) under Florida's Administrative Procedure Act, Chapter
120, Florida Statutes. The importance of permitting criteria and
compliance with rules adopted by administrative agencies is
paramount in these proceedings. Understanding the legal and rule
criteria for obtaining a permit or for opposing the issuance of a
permit, assumes a significance in dispute resolution which often
exceeds conventional scientific and engineering considerations.
It can make your advanced degree a new symbol of humility, rather
than a meal ticket. For this reason it is extremely difficult to
function professionally in the judicial and administrative
hearing arena without having a working knowledge of those rules.
This arena does not merely require knowledge of substantive
statues, administrative rules and case law. It also requires
familiarity with the Florida Rules of Civil Procedure, the
Florida Evidence Code, the Model Rules of Practice and the
regulatory agency Rules of Procedure.

Communicating regularly with lawyers, therefore, has become an
occupational hazard. But this is a dialogue you should look
forward to; you may even find, after a time, that you know more
law than the lawyer you are working with. Don't worry about it--
lawyers frequently have the same experience. But it is important
to understand that the difference between a lawyer and a
consultant (a term used to describe engineers, scientists,
hydrologists, etc.) is more one of function than of knowledge.
If a lawyer is to help you present credible answers, he or she
must obviously understand the questions.

It is assumed that you will have the opportunity to participate
in an administrative hearing or judicial proceeding before a
reasonably intelligent, disinterested hearing officer, judge, or



board. You may call this a hearing de novo, which just means
that everyone is starting from scratch and that there are no
conclusions, at least not binding ones, which have already been

In this setting, you may think of the judge or hearing officer as
a mild mannered, somewhat wishy-washy builder of houses who has
not yet decided just what kind of house he or she is going to
build or what materials to use in building it. The hearing
officer has engaged these two lawyers, with their parade of
exhibits and witnesses, to lay out the facts, explain the design,
and argue why the materials they are tendering are the best and
lend themselves to a particular type of design. We will not
discuss the situation, which does sometimes occur, where a
hearing officer may hear the whole story from both sides and
mutter: "You expect me to build something out of that?" Hearing
officers sometimes feel that they are presented a large bowl of
chicken salad and are asked to make a live, cackling chicken out
of it.

The lawyers then work at this process through an adversary system
which is fundamentally different from techniques utilized in the
technical professions. That is why the engineer, hydrologist or
other technical expert must have an appreciation for the roles
and techniques of the adversary system; otherwise they will
simply be watching the dancers move around on the floor but they
will not hear the music.

II. The Expert Witness

Probably the single most important item which many expert
witnesses fail to understand is the difference between testimony
on direct examination and testimony on cross-examination. If
only one thing is to be remembered, remember that the
effectiveness of direct testimony is 95% the responsibility of
the witness, and that 100% of that testimony should be determined
before entering the courtroom. With only the slightest nudge
from the lawyer, the expert witness should blurt into articulate
prose, describing persuasively to the hearing officer, and not
to the lawyer who already believes him, who he is, what he does,
what he knows, how and where he learned it and why his
particular contriEution to this controversy should be believed
above others. This is called laying a foundation, which will
include as its culmination the suggestion by the lawyer to the
hearing officer that this warm body before us, this bright,
learned, thorough scientist, is well-qualified to talk about the
following subjects and is here solely to help the hearing officer
render a wise and informed decision. All of this is before the
expert says what he thinks; it's just to establish that he does



think, and that his thoughts should be considered an exception to
the opinion rule.

The expert will then proceed, with only four or five pre-arranged
winks from his lawyer, in the form of questions, to lay out his
familiarity with the subject matter at hand, the application of
well-established technical or scientific principles to the
issues, and what his opinions or conclusions are on the merits of
the controversy. Keep in mind that if there has been no
appetizer, no salad, or no main course, there will be no dessert.

III. Just A Few Questions, Your Honor

The importance of cross-examination, as well as apprehensions
about it, is greatly exaggerated. Perry Mason notwithstanding,
lawyers are very reluctant to give a credible and well-prepared
witness further opportunities to talk to the judge, the jury, the
board or the hearing officer. If the expert knows what he is
talking about in the first place, he should look upon cross-
examination as an opportunity to stroll back over his testimony,
hand-in-hand with the inquisitor, filling in any blanks that he
may have missed in his direct testimony.

Understanding that the objectives of the adversary system are not
to discredit or to embarrass individuals but to select the best
building blocks for a structure is important to professional
participation. This may require some adjustment for those who
are always right and have never been disagreed with, but they
will survive. Perhaps they should think of the adversary process
as the trimming away of dead branches to make way for new growth
each spring. There, that should make all feel better.

Finally, be kind and courteous to opposing lawyers and try to
answer their misguided questions. Remember, they are only
persons of average intelligence who couldn't get into medical
school. They are just trying to do their job and next week, they
may be on your side.