The Expert Witness And Environmental Law Practical And Ethical Considerations For Lawyers

Introduction

The complex nature of environmental issues that come across a lawyer's desk often require highly technical expertise from any (or all) of a number of highly specialized disciplines. Expertise could be needed from fields that include geology; hydrology; hydrogeology, engineering, organic and inorganic chemistry, toxicology, epidemiology and even meteorology. That list is by no means meant to be exhaustive.

Equally varied is the context in which the lawyer might need such expertise. While one most commonly thinks of an environmental expert in their role as expert witness at trial, in reality an environmental expert serves many essential roles in both litigation and transactional legal work. These roles include litigation advisor, assisting with due diligence in a transaction, assisting with identifying risks that might need to be specifically allocated in an agreement, determination of costs for remediation or risk management measures, perhaps in the context of an escrow agreement or a holdback to secure a remediation obligation and as an aid to planning, coordinating and scheduling projects. An expert might even be required to generate a final report on which the satisfaction of a contractual obligation might depend.

At the same time, working with the expert must be done in a way that not only furthers the client's interest but complies with the ethical obligations of the lawyer, as well as any professional body to which the expert belongs.

Working effectively with environmental experts is in fact an essential day to day skill of any environmental lawyer. In this paper, I will touch on some of the ethical, scientific and legal issues that arise when lawyers work with environmental experts. I will also address some specific issues that arise in the context of preparing a consultant for a hearing. However, my hope is that it will be seen that preparing an environmental expert for any role that might be needed by a lawyer, is going to require many overlapping considerations regardless of the ultimate role.

Setting the scene: What are the questions an environmental expert is likely to be asked?

Typical questions include:

Is the land contaminated?

With what?

To what extent?

What does "contaminated" mean?

To what standard?

Does the contamination restrict my use of the property?

Is it hazardous?

Where did it come from?

Where is it going?

What can I do about it?

What are my options?

How much will it cost?

How long will it take?

How sure...