Participants of Expert Witness Training Defense Team 2: Dr. Larry Peterson, Dr. Sarah E. Myhre, Dr. Amy Frappier, Dr. Jeremy Hoffman, Kari Beaudry, Amanda Meyer, Benjamin Sime, Chelsea Kuhns, Joel Holstand (left to right)

Expert Witness Training: functioning as a scientist in a litigious world

Rowan Institute’s founder Dr. Sarah Myhre attended the 2018 National Science Foundation’s Expert Witness Training Academy (EWTA) at Michell Hamline School of Law in St. Paul Minnesota.

Expert witnesses provide scientific testimony during lawsuits, hearings, and depositions. Testimony is one of the primary roles in which climate and earth scientists can interact with climate litigation. The courtroom is a fact-finding arena. And yet, it is also a theater, a pulpit, and public arena — where the stories of our morals, tribalism, and collective history play out on grand and hugely consequential scales.

For scientists to communicate what they know to judges or juries, they must have a sophisticated understanding of the actors, agendas, and argumentative landscape of the law. They will need to be able to communicate complex information under pressure and in an adversarial setting. This is where EWTA comes in. The communication skills necessary to succeed in legal setting are muscles you can build — but it takes time, skill, and direction.

The Exercise

The EWTA is designed around a legal exercise. We are provided legal briefs, expert testimony, facts, and timelines, and from there the participants build a legal case to argue their side (either for the plaintive or defense). Previously, the exercise was built around a story of cloud seeding, extreme weather, and determining negligence. The new EWTA exercise centers around a tragedy: the death of ten people in a bridge collapse. Was the bridge collapse caused by fracking? Does fracking cause destructive earthquakes? How do you prove negligence for “acts of god” — even though we know, empirically, that fracking does cause earthquakes.

Chris Sherwood, d.b.a. Sherwood Organic Farms and the Citizes of Clearwater Township v. JT Gullivar, d.b.a. Gullivar Wildcat Drilling, LLC, Midstate Department of Natural Resources Liscensing and it’s Director D.M. Tancova

Through the training, scientists and law students work together to develop the legal and rhetorical strategies to try the case. Scientists get to practice skills in being directly examined and cross examined, which are unique and separate. Scientists also get this opportunity to practice opening statements. All of these exercises are occurring in the presence of judges and law professors — and so the performances and ideas are being vetted and critiqued in real time.

Cross examination — testify as a witness for the defense. Li Cheng, a geoscientist who works for Midstate Oil Company
Opening Statements — practicing as a defense lawyer

The real watershed experience is the last day of EWTA. This is when you try your case in front of a real jury. The mock trial occurs through a whole day and the jury deliberations occur afterwards. Watching the jury deliberate the legal arguments and the communication of the science is profoundly uncomfortable. All of your failings and flaws in the legal argument, the rhetorical choices, and the communication come forward. It is an exercise in failure, to be sure. But that failure informs a deeper level of sophistication and analysis for how the legal process, and the key role of expert witness testimony, operates.

Jury deliberations. All of the scientists have their heads in their hands. It is a humbling exercise to realize you must do better in these scenarios of consequences.

Moral courage

Much of what we practiced at the EWTA requires moral courage — not just communication skills. It takes moral courage, as a scientist, to look up from your lab work and publications and realize that real lives are at stake. Your expertise has role to play in the culture, and especially in litigation and public decision making.

Moral courage is also a muscle that you build. At EWTA this year, there was an incident around the normalization of rape culure and misogynistic language. A trainer used the words “hired slut” in reference to a female student in a role playing positions. When these words were said I was stunned and intimated and angry. I could have stayed silent. Instead — I confronted the man in the classroom. He was fired from the Academy the next day and the entire class had a hour-long debrief on the event. It was a foundational experience for me — and strengthened my own muscle of moral courage. Doing what is right is hard. We need to practice these skill together as a community.

Communication and leadership to change the world. Climate, justice, equity, and decision making. #weneedtochangetheworld