Experts Take on Carbon Polluters in the Courtroom

April 11, 2022 | 11:05 am
Joe Gratz
L. Delta Merner
Lead, Science Hub for Climate Litigation

Physical and social scientists are playing a critical role in the rapidly growing field of climate litigation, which—to be successful—must be informed by robust and powerful science throughout the entire legal process. In partnership with the Climate Science Legal Defense Fund (CSLDF), UCS recently published a guide for scientists and hosted a panel discussion exploring ways experts can get involved and explaining how they can avoid common pitfalls in the courtroom.

Given the courtroom is a new arena for most scientists, the UCS guide can help prepare them to confidently participate in legal proceedings, help them understand the risks, and ensure that they have the skills to successfully inform climate litigation.

Ways to Engage

Case Consultant: When cases are just starting, attorneys usually seek out experts who can provide background information, summarize the state of scientific literature for a specific topic, analyze relevant facts and data, and interpret scientific materials. At this stage in a case, it’s important that legal teams have a clear understanding of the state of science relevant to their work, and scientists are well-equipped to provide such insights.

Working as a case consultant is a great way to inform litigation. Consulting experts are not required to disclose documents, such as expert reports or publication histories.

Friend of the Court: Scientists, among others, are welcome to participate in litigation by submitting an amicus curiae, or “friend of the court,” brief. These briefs provide courts with information or a specific perspective or insight into an existing case. In an amicus brief, you don’t speak directly on behalf of either party in the case. Instead, your unique knowledge and expertise can be introduced to the court to help explore, explain or expand on specific ideas brought in a case. Amicus briefs provide a wonderful opportunity to truly help inform a court’s perspective on climate litigation.

UCS has worked on several amicus briefs, including one to help inform thinking around climate litigation in my hometown of Baltimore. All amicus briefs are publicly posted in the court record and experts must explain to the court their specific authority on the topic.

Public Comment: The US government typically includes a public comment period when drafting new rules or taking other regulatory actions. During this time, experts can provide written comments or expert testimony at public hearings. Their comments will be part of the public record and can potentially be very influential, including during later litigation.

Expert Witness: As climate litigation moves through the legal system, the need for qualified and well-trained scientific expert witnesses will only grow. Expert witnesses play an important role in the courts. They help judges and juries understand the science underlying key arguments in a case and determine a fact at issue. Expert witnesses are used in many court cases. For example, a forensics expert is often called to testify in a criminal case. Similarly, judges hearing cases on climate change may require the expertise of climatologists, historians, economists and hydrologists, just to name a few. You can learn more about what to expect as an expert witness from our partners at CSLDF.

Working in Climate Litigation

The aim of climate litigation is to hold companies and governments accountable for their role in either causing or failing to address climate change. Given the immense impact of this existential threat, the stakes are very high. As scientists engaging in this arena, it’s important that we acquire the necessary skills and understand the potential challenges to be successful.

Establishing Credibility: Litigators are not necessarily seeking the truth. They have a very specific mandate to win. As scientists, we are used to having our knowledge tested. Before attending the oral defense of my doctorate dissertation, I was told that I would be pushed until the committee found the limits of my knowledge, but their goal was to help expand my thinking, not cast doubt on the validity or reliability of my work. The courtroom is different. Opposing lawyers will seek to discredit your work, make you look biased, and point out any inconsistencies. Even so, you can’t allow that to hinder robust science from informing the courts. Ultimately your science and expertise will shine through but understanding how litigators attack credibility can help you prepare.

To establish—or try to undermine—credibility, litigators will review your professional history, personal integrity, and any conflicts of interest, biases or other reliability concerns. Our guide recommends that scientists working in climate litigation:

  • Ensure that the opinions and testimony they offer are firmly based on their actual expertise and on methodologies that they have carefully and defensibly applied, and clearly explained.
  • Think through any uncertainties or limitations associated with the methodologies they have used and be prepared to address them.
  • Be sure to clearly maintain an objective stance, especially in any written communications.
  • Be sure that the attorneys they are assisting take time to prepare them for the possible lines of attack on their credibility during any deposition, hearing or trial testimony.

Understanding Disclosure: Scientists involved in climate litigation may be subject to public records requests. Courts may require expert witnesses to share certain materials relating to their testimony before trial, however, this list is limited. Document requests from the opposing side are sometimes used as an intimidation tactic, but there are important protections in place for scientists engaging in litigation.

An open records request levied against you is time-consuming and stressful. To empower yourself in this situation, it’s important to practice good “digital hygiene” to limit your risk.

CSLDF recommends that scientists:

  • maintain a clear delineation between their professional email account affiliated with their employer and their personal account;
  • use their own equipment and devices for personal communications; and
  • familiarize themselves with and following their employer’s email retention policies.

These measures can help to minimize the impact if you do become the subject of an open records request. You can also keep sensitive communications limited to phone calls or video chats and use screen-sharing rather than email to collaborate on sensitive documents.

Join a Growing Community

As the number of climate litigation cases has multiplied around the world, so has the community of experts ready to engage in this inspiring work. As I’ve said before, climate litigation gives me hope for meaningful climate action. UCS’s Science Hub for Climate Litigation connects scientific experts, legal scholars and practitioners working at the intersection of science and climate litigation. If you are interested in learning more or getting involved, please contact us. Likewise, if you have specific questions related to serving as an expert witness, or any other legal questions related to your scientific work, CSLDF offers free confidential consultations. Contact CSLDF at (646) 801-0853 or email [email protected].