Do You Swear? Six Tips from an Expert Witness

From pipelines and wind farms, to transmission lines and solar installations, today’s energy projects are more heavily scrutinized than ever before—regardless of location or size.

Recent legal challenges to efforts like the Grain Belt Express—a proposed long-haul, 600 kV HVDC transmission line project set to cross portions of Kansas, Missouri, Illinois, and Indiana—demonstrate how a whirlwind of competing perspectives and priorities often leads to formal opposition. In such cases, well-thought-out, documented and credible expert witness testimony can be critical.

Successful testimony requires attention to detail and extensive research; evaluation of the numerous concerns held by the public and regulatory agencies; technical expertise; the ability to prepare material properly for presentation to the public; and most importantly, the ability to effectively deliver information in a public setting, often under cross-examination.

Before you raise your right hand and swear to tell the truth, keep these six tips in mind.

1. Think and Act with the End in Mind
Even if you have been engaged in a project from very early on, assume from the outset that the public or special interest groups will intervene, that the project will proceed to litigation and that expert testimony will be required. Be mindful that every email, work paper and deliverable will be considered discoverable as part of the legal process. As such, know that your work on the project must always be professional, of the highest quality and defensible.

2. Establish Clear Communication Protocols
A secure document management system for project information, deliverables and communications is essential. Further, providing guidelines to the project team from day one about the type of project-related communications that are appropriate, and with whom these may be shared, is prudent. It’s a serious setback during the legal discovery process to unearth a previously unknown email chain that raises doubt about the project need or methodologies.

3. Engage the Public Early
The public voice is powerful and can impact your project. Working from early on to build trust and consensus among stakeholders will help solidify the project purpose and need. Part of that process is a well-planned approach to public outreach and stakeholder engagement that includes public open house meetings and maintaining an accurate and complete record of public comments.

4. Keep Pace with Changing Regulations
A compliant project is a defensible project. From Executive Orders 13766 and 13807—currently changing the way federal agencies administer the National Environmental Policy Act— to new guidance from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers regarding regulation of “waters of the U.S.,” keeping pace with the federal, state and local regulations that apply to your project is necessary.

5. Understand Your Role on the Team
The role of an expert witness is to assist decision makers in understanding the evidence within their area of expertise. To do so, a witness must perceive the big picture and understand the relative importance of the key issues they are responsible for representing or sponsoring. This allows testimony to be tailored in a manner that best contributes to the case.

6. Prepare Your Team
The entire witness team needs to understand the strategy of the case and contribute to its success by being prepared. Expert witnesses should thoroughly know their work and work products, their testimony and all of their exhibits, other team members’ testimony, opposing parties’ testimony, personalities, precedent, current events and trends in the industry, and what others have done in similar situations. An effective witness also understands the major players in the case—typically your team, the opposing team, administrative law judge(s), commission staff and commissioners.

When a witness knows the major players, they can better anticipate the hot topics and important issues and be prepared to respond to tough questions. Individual witnesses should also recognize their weak areas and develop defenses. This is accomplished by drafting and practicing responses to key questions, but not by memorizing responses. Testimony should be perceived as genuine, not rehearsed.

A prepared witness team will be more persuasive because they will appear knowledgeable, confident and likable by being honest, reasonable, calm, rational and objective.

Implementing these tips will help prepare you and your team to take the stand, raise your right hands with confidence and deliver expert testimony.

Article originally published in the Spring 2020 issue of Currents. Subscribe today to stay current on environmental insights and regulatory updates that impact your projects.