COMMUNICATING GEOSCIENCE INFORMATION TO THE LEGAL PROFESSION: THE AMERICAN EXAMPLE GEM 2006 Roy J. Shlemon Newport Beach, ...
 
 
 
 
The Geoscientist as a Consultant and Expert Witness <ul><li>Need to know “legalese;” general court procedures </li></ul><u...
<ul><li>Expert Witness :  A person who has the necessary “special knowledge, skill, expertise, and training” to render an ...
GENERAL COMMUNICATION STEPS AND PROCEDURES <ul><li>Data gathering; interpretation; communication to counsel </li></ul><ul>...
What is the Standard of Practice Applicable to this Litigation? <ul><li>Professional Geological Standards: </li></ul><ul><...
<ul><li>Standard of Practice (Care) defined: </li></ul><ul><li>“ The watchfulness, attention, caution and prudence that a ...
<ul><ul><li>Main Purpose of Testimony </li></ul></ul><ul><ul><li>To provide a record for appeal; </li></ul></ul><ul><ul><l...
CONCLUSIONS <ul><ul><li>In legal proceedings, the geoscientist must be “multilingual;” that is, be able to communicate to ...
 
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Communicating geoscience information to the legal profession: the American example

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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
rshlemon@jps.net

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.

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Communicating geoscience information to the legal profession: the American example

  1. 1. COMMUNICATING GEOSCIENCE INFORMATION TO THE LEGAL PROFESSION: THE AMERICAN EXAMPLE GEM 2006 Roy J. Shlemon Newport Beach, California USA
  2. 6. The Geoscientist as a Consultant and Expert Witness <ul><li>Need to know “legalese;” general court procedures </li></ul><ul><li>Retained by attorneys for Plaintiffs or Defendants </li></ul><ul><li>Ability to communicate to counsel and to a judge or jury </li></ul>
  3. 7. <ul><li>Expert Witness : A person who has the necessary “special knowledge, skill, expertise, and training” to render an opinion. </li></ul><ul><li>The opinion has “reasonable geologic certainty” </li></ul>
  4. 8. GENERAL COMMUNICATION STEPS AND PROCEDURES <ul><li>Data gathering; interpretation; communication to counsel </li></ul><ul><li>Disclosure (all pertinent documents, written opinions, conclusions) to opposing counsel </li></ul><ul><li>Depositions </li></ul><ul><li>Trial </li></ul><ul><ul><li>Direct Examination </li></ul></ul><ul><ul><li>Cross Examination </li></ul></ul>
  5. 9. What is the Standard of Practice Applicable to this Litigation? <ul><li>Professional Geological Standards: </li></ul><ul><ul><li>“ State of the Art” </li></ul></ul><ul><ul><li>Normal Standard of Practice </li></ul></ul><ul><ul><li>Prescriptive Standards (laws, regulatory guidelines) </li></ul></ul>
  6. 10. <ul><li>Standard of Practice (Care) defined: </li></ul><ul><li>“ The watchfulness, attention, caution and prudence that a reasonable person would exercise in similar circumstances. If a person’s actions do not meet this standard, then his/her acts fail to met the duty of care, which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any resulting damages may be claimed in a lawsuit by the injured party.” </li></ul><ul><li>Problem: The “standard” is often subjective; and reasonable people differ; hence litigation! </li></ul>
  7. 11. <ul><ul><li>Main Purpose of Testimony </li></ul></ul><ul><ul><li>To provide a record for appeal; </li></ul></ul><ul><ul><li>To convince the judge and jury. </li></ul></ul><ul><ul><li>Trial Communication Techniques : </li></ul></ul><ul><ul><li>Use of exhibits </li></ul></ul><ul><ul><li>Simplify and itemize main points </li></ul></ul><ul><ul><li>Professional demeanor </li></ul></ul>
  8. 12. CONCLUSIONS <ul><ul><li>In legal proceedings, the geoscientist must be “multilingual;” that is, be able to communicate to technical colleagues, to counsel and to a lay jury. </li></ul></ul><ul><ul><li>Litigation communication skills come with practice, but are no replacement for technical qualifications and for professional ethics. </li></ul></ul>

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