Hydrology for Lawyers The Role of Science in Resolving Legal Issues

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1 Hydrology for Lawyers The Role of Science in Resolving Legal Issues David Aladjem Downey Brand LLP Sacramento, California Law Seminars International Santa Monica, California October 7, 2014

2 Introduction Background Legal Disclaimer

3 Summary Background Preparation Preparing the Case Trying the Case

4 Background Preparation Legal Principles Substantive Law Groundwater Law CERCLA/RCRA etc. Porter-Cologne/Clean Water Act Common Law Well Interference Nuisance/Trespass etc. Reasonable and Beneficial Use Public Trust Doctrine

5 Legal Procedures Background Preparation Legal Principles (cont.) Civil Procedure/Discovery etc. Administrative Procedures Evidence Daubert

6 Scientific Principles (Numbers, Equations and Statistics, Oh My!) Groundwater Hydrology Lithography and Stratigraphy Properties of Aquifers Cones of Depression

7 Scientific Principles (Numbers, Equations and Statistics, Oh My!) (cont.) Aspects of Modeling Inflow, Outflow, Change of Storage Calibration and Verification Groundwater/Surface Water Interaction Potential Effects on Biota

8 Preparing the Case Investigation What is the Client's Real Problem (for Plaintiffs)? What is the Plaintiffs Real Problem (for Defendants)?

9 Preparing the Case Investigation (Cont.) Is There a Simple Solution? Legal Off-Ramps to Litigation Jurisdictional Defects Substantive Demurrers Unwillingness of Administrative Agencies to Pursue the Complaint Quick Settlements

10 The Broader Context Preparing the Case Investigation (Cont.) Political Considerations Cost/Finances Personalities

11 Preparing the Case Selecting an Expert Witness Probably the Most Important Decision in the Case

12 Preparing the Case Selecting an Expert Witness (Cont.) Qualifications Academic/Professional Credentials Experience as an Expert Witness Too Much Too Little Demeanor Ability to Explain the Science Will They Tell You the Truth, the Whole Truth and Nothing But the Truth?

13 Preparing the Case Selecting an Expert Witness (Cont.) References Other Experts Other Lawyers Judges and Public Officials

14 Preparing the Case Selecting an Expert Witness (Cont.) Interviewing a Potential Expert Past Experience Potential Conflicts Cost and Availability Testifying vs. Non-Testifying Witnesses

15 Preparing the Case Working with an Expert Witness What Are the Disclosure Rules? Administrative Tribunals Courts

16 Preparing the Case Working with an Expert Witness (Cont.) Background Information Groundwater Basin Characteristics Institutional/Legal/Political Framework Specific Complaint Tools Available Existing Models Model Development

17 Preparing the Case Working with an Expert Witness (Cont.) Model Development Type of Model Sensitivity (e.g., Node Size) Boundary Conditions Selection of Base Period Calibration and Verification Common Sense

18 Preparing the Case Working with an Expert Witness (Cont.) Using the Model Project Runs/Existing Conditions Modeling as a Tool Explaining Contamination Previewing the Project Common Sense The Independent Reviewer

19 Preparing the Case Developing the Opinion Crux of the Case "A Complex Web of Legal, Policy and Technical Considerations" Talk, Talk, Talk The Importance of the White Board

20 Role-Playing Preparing the Case Developing the Opinion (Cont.) Direct Examination Cross Examination Opposing Witness

21 Preparing the Case Developing the Opinion (Cont.) Writing the Opinion Keep it Simple, Stupid Graphics are Key Don't Bury the Lead Be Objective and an Advocate

22 Trying the Case Respective Roles of Attorney and Expert Attorney as Master/Mistress of Ceremonies Expert is the Star Credibility is Critical Keep it Simple, Stupid

23 Trying the Case Theme and Theory of the Case Metaphors/Stories Are Useful "Caught with His Hand in the Cookie Jar" "Fox Guarding the Henhouse" A Picture is Worth a Thousand Words A Good Animation/Modeling is Worth a Million Words You Can't Unring the Bell

24 Trying the Case Testimony by the Expert Witness Direct Examination: Answer the Question, and More Cross Examination: Answer the Question, and Turn the Tables Always Remember Your Audience Judge Jury

25 Opening and Closing Statements Opening Statement Less is More; Don't Overpromise Focus on the Central Question/Issue Offer Proof in a Simple, Not Simplistic Way

26 Opening and Closing Statements Closing Statement Focus on the Key Evidence Wheat/Chaff Focus on Credibility of Witnesses Whom Can You Trust? Focus on Common Sense and Fairness Use Legal Principles Sparingly Judges Know the Law Juries Are Instructed in the Law

27 Opening and Closing Statements The Court of Public Opinion Media Strategy Alternative Venues Administrative Tribunals Legislature

28 Opening and Closing Statements Settlement Considerations Needs vs. Wants Different Types of Resources Money Power/Control Clean-up of Contamination Water Supply Reliability

29 Thanks! David Aladjem Downey Brand LLP Sacramento (916)

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