Selecting An ExpertOriginal Publication Date: January 1996
The growing complexity and multiplicity of environmental regulations has contributed to an increase in environmental litigation, which in turn has created a growing demand for expert environmental witnesses. But selecting the right environmental consultant for your litigation is only the first step in establishing a successful relationship. If environmental consultants are going to be an effective part of your litigation, they must understand your objectives and strategies and you need to understand something about the services they can provide and the conditions under which they operate.
At a minimum, you need a consultant with the proper expertise and experience. Traditionally, the disciplines were divided according to environmental media: wetlands scientists, geologists, air quality scientists, etc. However, not all experience is equal. A consultant's participation on prior projects may range from technical assistance to statistical evaluation to project management. What the consultant actually accomplished on the project is becoming as important as the types of projects in which they have participated.
Identifying the appropriate expertise also depends on the questions you are attempting to answer and the stage of your litigation. In litigation involving soils and groundwater contamination, for example, the defense attorney might first hire an environmental scientist to identify industrial sources of the detected contaminants, determine degradation products of those chemicals, and evaluate past sampling and analytical programs. The objective here would be to evaluate enough information to develop an overall strategy. Only later would experts in geology and hydrogeology play a major role in the program.
By first retaining an environmental consultant for technical support and only later selecting an expert trained in a specific required discipline, you make the best use of both sets of witnesses. The first set of consultants might include engineers and scientists who would assess the site, provide information to the attorneys, and assist in case preparation. This group should represent a wide range of skills and include proven technical abilities in areas such as: sampling, quality assurance and control, data evaluation and data validation. The second set of consultants would consist of expert witnesses in more specialized disciplines that address specific questions of fact or data interpretation.
In all cases, it is the individual you are hiring and it is that individual that will ultimately determine the success or failure of any scientific inquiry. Large consulting firms are fine, and may have special support services that will assist in the investigation stage, but data collection, review and evaluation is done by an individual. Know the individual who will actually do the work and not merely the individual who manages the service. When you find the right person, insist that they either do the work directly or actively participate in all aspects of the project.
Good environmental consultants should provide more than the proficient completion of technical tasks. They should provide summaries and evaluations of existing research, as well as evaluation of the opposition's technical reports and depositions. As trained observers, environmental consultants can provide you with site documentation and data collection and they can be valuable fact witnesses on issues not anticipated in the early stages of program development.
Although consultants should complete each project as if it were to be litigated, it is important to inform consultants if you plan to use the information they are generating in litigation, what role they will play in the litigation, and what is the intended use of the data collected. Some activities, such as chain-of-custody documentation for all samples, are standard procedures for all projects. However, if a project is intended for litigation, the consultant may recommend additional activities. For example, the amount and type of quality assurance samples included in a sampling program may change to address specific challenges anticipated from the opposition.
When you have selected the members of the technical team, develop written agreements with each member stating their roles in the process, their individual objectives, the deliverables expected, and, most importantly, the overall objective of the litigation. This will guarantee that all of the consultants understand the technical issues to be addressed and that they have an opportunity to work together to identify issues that may have been overlooked.
Based on the information provided, the consultant can then prepare a work plan to address the issues and objectives. The work plan should include the consultants' understanding of the objectives of the study, how the study will address those objectives, standards or guidelines to which the final data will be compared, applicable procedures and methods, and quality control and quality assurance procedures. As each new phase of work unfolds, the development of a technical work plan should continue. These work plans become tools to discuss the many subtle, but important, changes that occur during the investigation.
Make sure that your consultant follows the work plan, but be prepared for some program expansions and for adjustments to specific procedures. Often changes are due to unexpected soil or site conditions, but frequently major modifications are required because the extent of contamination was far worse, or far different, than expected. Understanding and planning for these contingencies is an important benefit of including the consultant in your planning process.
The process is interactive, developing as new data becomes available, or as existing data is evaluated from various perspectives. During this process, which is similar to peeling an onion (both in terms of continual discovery and occasional tears), many subtle technical issues are decided by the consultant. These could include determining the number of samples to be collected, specifying screening materials for monitoring wells, or sample bottle selection. You need to rely on your consultant to make these decisions within the context of your litigation strategy.
Make allowances in your schedule for delays, which can be caused by anything from weather interfering with sample collection to problems obtaining access agreements to failures with sampling or analytical equipment. Given the complexity of today's equipment, delays of one or two days can be caused by such technical problems as the need to recalibrate an instrument or replace one that has totally failed. Longer delays can arise when dealing with multiple consultants or with regulatory agencies. Obtaining responses from government agencies can be particularly frustrating and can often result in a two or three month delay on permit applications or technical reviews.
A successful relationship with your consultant is built on mutual trust and a willingness to share not only information but strategies and objectives. It is a relationship that by necessity is dynamic and interactive, characterized by continuous discovery and re-evaluation of objectives.