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The Scientist and Engineer in Court

The Scientist and Engineer in Court

Michael D. Bradley

ISBN: 978-1-118-66568-8

Mar 2013, American Geophysical Union

120 pages

Select type: Wiley Online Book

Description

Published by the American Geophysical Union as part of the Water Resources Monograph Series, Volume 8.

The gavel goes down, the witness is called and sworn in: ""Will you tell the truth, the whole truth, and nothing but the truth, so help you God?"" Every court day scientists and engineers take this oath, yet few know the duties of an expert witness and fewer still know the procedures in a lawsuit. Unprepared for the courtroom, they watch a drama unfold without benefit of the plot (Ball, 1975). Courtrooms swirl with costume and ceremony. Jury, judge, and spectators assume roles: audience, director, trier of the facts. And the lawyers! Lawyers are the key dramatis personae. Protagonist and antagonist confront one another as lawyers argue their clients cases in the courtroom. They object endlessly. They cross-examine opposing witnesses mercilessly. They speak an opaque jargon of ""laches,"" ""remittitur"" and ""stare decisis."" They speak Latin: ""ab initio,"" ""in pari causa,"" ""lex loci actus."" They speak old French: ""estoppel,"" ""fee simple,"" ""voire dire."" And they speak law-speak: ""abuse of discretion,"" ""clearly erroneous,"" ""malice aforethought"" (Mellinkoff, 1963). They call contrary versions of the same story true. They plead for understanding and compassion. They mix independent variables called ""facts"" and a dependent variable called ""law"" into an argumentative gruel for court consumption. Then it's over, and the judge delivers his or her opinion. One lawyer calls it the decision of the decade, a magnificent example of benign, reasoned law. The other darkly threatens to appeal all the way to the Supreme Court, if necessary, to relieve an onerous and oppressive injustice. All of this is fascinating theatre, but to the unprepared scientist or engineer, the drama has none of the charm and all of the clarity of a Japanese ""Noh"" play.

1. INTRODUCTION 1

2. LAWYERS AND COURTS 9

The Actors in the Courtroom 11

Officers of the Court 11

The Lawyers 13

The Structure of the Courts 18

Where do Courts Originate? 18

Going to Court 27

The Decision to Litigate 28

The Lawyer as Negotiator 33

3. THE PROCESS OF CIVIL LITIGATION 36

Initial Rules: Starting a Lawsuit 38

Pretrial Procedures 41

The Trial 43

Calendars and Jury Trials 43

The Nature of Evidence 44

Cross Examination 47

Motions at the Close of the Plaintiff's Case 48

Motion for Direct Verdict 48

Motion for Voluntary Nonsuit 49

The Defendant's Evidence 49

Closing Arguments or Summations 50

Instructions to the Jury 50

The Verdict 51

Motions After the verdict 51

Judgment 53

Appeals 53

4. EXPERTS AND EVIDENCE 56

The Historical Development of Witnesses 56

Witnesses and Evidence 61

The Opinion Rule 61

The Expert With Firsthand Knowledge 62

The Hypothetical Question 64

Admissible Scientific Evidence 66

Special Problems of Quantitative Information 71

5. COURTS AND SCIENTIFIC INFORMATION 76

The Expert as Educator 85

Courtroom Conduct 87

Mistakes in Communication 87

The Appearance and Demeanor of an Expert

Witness 88

The Aggressive Cross Examiner 90

How to Calculate a Witness Fee 92

6. CONCLUSIONS 97

Expert Witnesses and Learning 97

The Expert as a Learner 98

The Expert and Institutional Learning 101

REFERENCES 106