Tech experts crucial to environmental lawsuits

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by Ray Forrester|ret||ret||tab|

for the Business Journal|ret||ret||tab|

The testimony and technical support of expert witnesses is often crucial to environmental litigation.|ret||ret||tab|

Because technical litigation support can involve a wide range of issues, careful planning, coordination, and research are vital in allowing the litigation team to build a convincing case.|ret||ret||tab|

Attempting to assemble and manage a team of experts can divert precious energy away from case development. Using a technical expert to provide technical case management can greatly facilitate the legal team's efforts. |ret||ret||tab|

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Technical management|ret||ret||tab|

In addition to providing the typical expert witness services, technical case management also includes:|ret||ret||tab|

assistance with expert selection |ret||ret||tab|

preparation of a technical summary package|ret||ret||tab|

expert briefings |ret||ret||tab|

support of trial strategy development|ret||ret||tab|

preparation of experts for deposition or trial testimony|ret||ret||tab|

assistance with deposition or questioning of opposing experts|ret||ret||tab|

facilitation of regular communication between experts and trial counsel, and|ret||ret||tab|

review of expert opinions and reports.|ret||ret||tab|

The first step in developing the technical portion of environmental litigation is to select reputable, competent technical experts. |ret||ret||tab|

Locating a primary expert to perform the majority of the testimony and provide technical management of the case can enhance this selection process. |ret||ret||tab|

The expert should have credentials relevant to the technical issues, effective communication skills, and a confident demeanor. He or she can then assist counsel in selecting other qualified experts. |ret||ret||tab|

Although it can be time-consuming, careful briefing of experts is essential. In multiple-expert cases, the cost of this briefing can be dramatically reduced by having the technical manager prepare a technical summary package that provides information relevant to each expert witness assignment. |ret||ret||tab|

This package includes all site-specific information, maps, photographs, records, and documents. It can then be reviewed and approved by the trial team to assure accuracy and completeness. |ret||ret||tab|

The briefing package will eliminate replication of effort, increase consistency, and dramatically reduce the likelihood of errors or oversights. It can be tailored to each expert's informational needs, and a detailed bibliography of its contents can be included in each expert's report as "materials relied upon."|ret||ret||tab|

Once the various experts have been selected and the technical summary package prepared and distributed, the experts should be briefed in a "kick-off" meeting. This meeting provides a basic overview of the facts of the case, current trial strategy, initial assignments, clear areas of responsibility and communication channels, and a schedule for the assigned work. This meeting can provide early insights to case strengths and weaknesses and refine the experts' assignments, thus saving time and money. |ret||ret||tab|

Among the greatest challenges of technical litigation is identifying the most critical facts and most effective strategy for presenting the argument. Trial teams have found that working with a technical expert who has a broad overview of the entire case is tremendously helpful in eliciting the essential issues from mountains of technical details. |ret||ret||tab|

This comprehensive grasp of all aspects of the case allows the technical case manager to support the trial team in preparing a successful litigation strategy.|ret||ret||tab|

The technical manager can coordinate and facilitate preparation for depositions by preparing experts and helping identify possible lines of questioning by opposing counsel. |ret||ret||tab|

He can also assist with the trial testimony script for each expert. This script indicates the sequence and appropriate answers to each planned question, as well as providing a sense of the desired nature, tone, and length of each response. |ret||ret||tab|

Well-scripted and rehearsed testimony reduces stress on the expert and counsel, allowing them to focus on presenting persuasive testimony.|ret||ret||tab|

The technical manager should also be consulted in preparing for deposition of opposing experts. He and the other supporting experts can provide detailed critiques of opposing experts' reports and insightful questions to scrutinize the opinions and the credibility of the opposing experts. The presence of a technical case manager at depositions can compel opposing experts to be more reasonable and prevent them from departing into "scientific fiction." Counsel can also benefit from pertinent input during the deposition.|ret||ret||tab|

Frequent communication between experts and trial counsel, another important aspect of technical case management, will keep all parties up-to-date on technical and legal developments. Fine-tuning of opinions through this process will strengthen the case and focus on those pertinent technical facts most convincing to the judge or jury. |ret||ret||tab|

Although communication between experts is sometimes discouraged due to certain legal concerns, when properly managed this communication will eliminate overlap and inconsistencies, stimulate new ideas for case strategy or opinions, and greatly improve the overall quality of each expert's report. |ret||ret||tab|

Once the draft expert's reports are prepared, it is often helpful to conduct a peer review of the documents. This review, coordinated by the technical manager, will provide an objective evaluation of clarity, technical accuracy, and defensibility, as well as identifying new ideas and synergy between the various experts. |ret||ret||tab|

Choosing a technical litigation expert and support team to manage the technical aspects of an environmental case can provide the efficiency, cost savings, and strategic evidence crucial for a successful outcome. A technical case manager can facilitate all technical aspects of the case, freeing trial counsel to focus more purposefully on the case as a whole. Effective technical case management can therefore strengthen the legal process, preserve good science, and improve the outcome for all involved.|ret||ret||tab|

(Ray Forrester is president of The Forrester Group, environmental management consultants,)|ret||ret||tab|

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