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Communicating geoscience information to the legal profession: the American example
Roy J. Shlemon
P.O. Box 3066
Newport Beach, California 92659-0620, USA
Most professional geoscience organizations have "Outreach Programs" that provide news to the media either periodically or following a catastrophic event. In the United States, this is exemplified by the Geological Society of America, the American Geological Institute, the U.S. Geological Survey and various universities whose spokespersons made technical "pronouncements" following the devastating Katrina hurricane in 2005. This information from ostensibly unbiased scientists usually satisfies national newspaper and television media. Commonly, however, years after landslides, floods, bluff failures, differential subsidence, or other ground failures ("earth movement" in legal parlance), litigation often pits aggrieved homeowners against builders, approving governmental agencies and geoscience professionals who made the original technical recommendations. Accordingly, in typically American fashion, attorneys representing plaintiffs, defendants, and various cross-complainants will seek out "verbally skilled," licensed geotechnical experts to provide expertise, initially as consultants, then as "expert witnesses" subject to court acceptance and ultimately to cross-examination. Communicating accurate, technical information to a retaining attorney is often not easy, for the lawyer will invariably "bias" information and professional opinion to support his client's position. Similarly problematic is that most jury members have little scientific training, and thus are more readily swayed by communication skills than by technical fact.
In American litigation, the geoscience professional must communicate in several ways. First, he provides technical information to his counsel, whether favorable to the litigation or not. This is usually done orally to avoid creating a "paper trail" subject to disclosure to other parties. Second, when subject to deposition, he often tries to answer "yes or no," revealing as little information as possible, to the consternation of opposing counsel. This is a skill honed by experience, and is particularly challenging when the geoscience professional has a teaching background and inherently desires to explain complex issues to the layperson. Third, after court designation as an expert witness, the geoscience professional responds to direct questioning (usually friendly) by speaking to the jury or judge, and providing simple but technically correct answers. Here, communication is enhanced by use of props (exhibits) to bolster the testimony. These may range from maps, photographs and physical models to animated computer simulations, depending on the scope, cost and potential economic benefits of the litigation. And fourth - perhaps the most difficult - the geoscience professional must respond to cross examination. At this point, every flaw in thinking or communication will be brought out by the opposing attorney whose sole function is to denigrate the expert in front of the jury. Whereas a scientist is trained to identify and evaluate uncertainties in his conclusions (working hypotheses), the attorney is trained to exploit these as weakness in testimony. Ideally, litigation outcome is based solely on the facts, but in reality, many American litigation-decisions stem from the sought-after, communication skills of the geoscience experts.