7623 - Laserfiche WebLink

Home Browse Search

problems of presenting sometimes very complex scientific or technical data and to cooperate with the lawyer in presenting the testimony in terms understand- able to lay persons who will be reviewing the evidence and deciding.the case. An attitude of "stupid questions" or "this stupid lawyer" and "this stupid judge" on the witness's part may be fatal to a proper presentation. Correla- tively, the attorney must use his talents to the utmost to assist the witness in making the presentation as succinct and manageable as possible and com- pletely intelligible to the lay person. A trial involving expert testimony is not a sparring match between the witness and his attorney but should be looked upon as an educational exercise -- enlightening the trier of facts to the scientific or technical bases of the position to be presented. Humility on the part of both the witness and the attorney is an indispensable asset in approaching this difficult task. It has often been said that the direct testimony of an expert witness consists of four parts: (a) his qualifications (by education or experience) as an expert; (b) the material from which he fashions his opinion; (c) the process or reasoning by which he gets from the material at hand to his con- clusion or opinion; and (d) the conclusion or opinion itself. Usually there is little dispute over an expert's personal background and that information comes in without question. In many cases the presentation of raw data itself, or with a clear statistical explanation, is enough for one to draw a con- clusion, and logical step-by-step delineation of how the experiment was conducted or how the field samples were analyzed is vital to showcase these data. Actual examples of testimony will be presented in the later discussion of cross-examination to show what should and should not be done. DISCOVERY Discovery is a general term used to describe the process by which one side in litigation finds out the factual basis for the other side's case. Discovery can be used to help build a case against the government, particular- ly when data or documents relative to the issues are not otherwise available. In Federal or State court actions, there are several procedures by which this can be accomplished. The most frequently used procedure is the taking of oral depositions. Under this procedure, the potential witness is placed under oath before a court reporter and asked a wide range of questions designed to prepare the opposing lawyer for his testimony at the trial. The deposition is also an opportunity for the opposition to ask about reports, memos, maps, lab books, pictures, and other materials which the person giving the deposition knows of or may have in his possession and which he does not intend to use in the trial, i.e., material which the other side may wish to use. By use of a subpoena duces tecum (very roughly "you are ordered to appear and bring all the following documents with you") the opposing party can force a scientist to collect all material which might be applicable to the issue. The lawyer may precede the "noticing" of a deposition by filing a motion to inspect all the documents related to the question. This helps prepare him to take the deposi- tion. 7