Litigating large, complex environmental cases requires special skills as a trial lawyer. It means grasping concepts of geology, hydrogeology, environmental engineering, toxicology, and epidemiology; synthesizing years (sometimes decades) of historical facts related to the operation and regulation of various industries; and presenting the client’s story simply and convincingly to a judge or jury. Sometimes in the heat of trial, lawyers and their testifying experts become so focused on small skirmishes that they forget the big picture and lose their credibility. A case recently decided by California Senior District Court Judge A. Howard Matz provides a cautionary tale.
In American International Specialty Lines Insurance Company v. United States, 2013 WL 135405 (C.D. Cal. Jan. 9, 2013), Judge Matz had already found liability in this CERCLA cost recovery case, and had just concluded the second phase of trial concerning the allocation of damages. Judge Matz began his order stating:
The presentation of evidence in Phase II was disappointing. The Court recognizes that both sides have faced difficult challenges, first in trying to ascertain a full and accurate history of the site and then in “cherry picking” the information to support their respective positions. Understandably, both sides relied heavily on expert testimony. Much of that testimony was unconvincing. Sometimes the experts appeared to be shameless advocates. For example, Mr. Zoch could not find a single instance where Whittaker functioned below the standard of care. According to Mr. Zoch, moreover, Mr. Jisa's testimony was to be discounted and disregarded in its entirety. In addition, he opined that the United States should be deemed liable for allocation of response costs as an operator, despite the Court's previous ruling that it could not be held legally liable as an operator. For his part, Mr. Linkletter ascribed 100% of the perchlorate contamination in 9 out of the 10 largest areas to the activity of the government. Similarly, the government's witness, Mr. Low, gave zero credit to Whittaker for its remediation efforts since 1994 because of its supposedly bad conduct.
Furthermore, some of the experts, as well as some lawyers in their questioning and arguments, too often displayed excessive nit-picking. Almost every immaterial and minor point raised by one side was countered with an equally immaterial or minor point by the other side.
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But eight or nine lawyers handled various facets of the trial presentation, (at least four on each side, with a fifth lawyer also making an appearance for the government). There is nothing inherently inappropriate about that. Indeed, sometimes efficiency can be promoted by allocating specific responsibilities to given individuals. Nevertheless, the Court would not be surprised if in retrospect the parties conclude that they wasted some of their money by proceeding in the fashion that they did.
Millions of dollars were at stake, and the lawyers and their experts appeared well qualified to handle such a case. So what could they have done differently?
- Remember your credibility is always on trial. Judges and jurors look to certain traits in lawyers and expert witnesses when deciding whom to believe:
- Competence – does this person have the necessary expertise for this case?
- Character – is this person trustworthy?
- Composure – is this person a straight-shooter? Or is this person evasive, side-stepping tough questions? Worse yet, does this person get angry when under fire?
- Likeability – is this person likeable? Does this person make me feel comfortable?
- Respect – does this person show respect to the court and staff, opposing counsel, opposing witnesses, and the lawyer’s own staff? Does this person act as a professional?
- The lead trial lawyer has to keep the examinations focused. The lead trial lawyer has to keep tabs on how the witnesses fit together in client’s presentation of the case and know if there is overlap between the cross-examinations. If several lawyers are handling several different witnesses, the lead lawyer has to make sure that someone tells the other trial lawyers about facts that have been admitted by other witnesses so the lawyers aren’t making the same points multiple times across multiple witnesses to the proverbial point of beating a dead horse.
- Stick to the theme of your case and the main points you will argue in closing. Jurors have a difficult time following a landslide of evidence. You must narrow your presentation down to your best, most-defensible 3 to 5 points. If you start thinking about pursuing a line of cross-examination that is simply interesting, but doesn’t help you establish your main points, don’t waste your time. Focus instead on your main points.
- Pick your battles. Why burn 10 to 20 minutes fighting over things that really don’t matter or that you can establish through another witness or piece of evidence? Pick your battles and fight over what’s important rather than nit-pick around the edges.
- Own your warts. If your case was perfect, it probably wouldn’t be going to trial. In 20 years of practice, I have never seen a case without some bad facts on both sides. You have to own your bad facts and discuss them before your opponent does. Nothing is worse that appearing to hide a bad fact only for an opponent to bring it out in a manner that undercuts your credibility or the credibility of your expert witnesses. Having said that, own your warts but soft sell them. You don’t need to lead with your chin, but can weave the bad facts between other much stronger points and do so candidly and in the best light.
- Don’t exaggerate. Never over-state your case or make promises you can’t deliver. Your opponent will remind the judge and jurors in closing argument if you failed to prove something you promised to establish.
- Don’t over-prove your case. What is the most persuasive testimony you have on a disputed point? Some lawyers will want to prove their key points through every witness. Others will stop after getting an admission from a key witness. Being a good trial lawyer is about telling your story efficiently and effectively and knowing when enough is enough.
- Experts should not focus on getting a shutout. Judges and jurors want expert witnesses who are like umpires at a baseball game, meaning someone who is calling strikes and balls fairly. Sometimes experts become advocates and focus their energy on not allowing the opponent to score any points. It is really hard to believe that good opposing lawyers and their experts are total hacks and couldn’t get even one point right. A small concession may go a long way in maintaining your credibility.
- Experts should answer the question. The fastest way for an expert to lose his credibility is not answering a question that he should know the answer to. Maybe your expert is having a difficult time formulating an answer because the other side has asked a vague or misleading question, used specialized terms incorrectly, or made assumptions that the expert does not believe are accurate. Despite this, an expert must always appear as though he is trying to answer the question. This may require that he explain the reason why he is having difficulty answering the question so that he maintains his credibility and not be perceived as sidestepping a difficult issue. On the other hand, sometimes what the expert may perceive as a bad fact has become a non-issue because of other evidence admitted at trial. You don’t want an expert who is a pushover, but you also don’t want an expert who comes off as an advocate. Like most aspect of trial, this often gets resolved through thorough preparation.
If you follow these lessons, you are less likely to be the brunt of an opinion like that of Judge Matz.
1Preparing the Corporate Witness (For the Defense, 2003).
*This article originally appeared in Law360.