Editor’s note: This is the second in a two-part series about legal considerations regarding entomology and the pest control industry. Part 1 appeared in last month’s issue of PCT.
By the very nature of their jobs, pest management professionals (PMPs), and even health department inspectors, at times may have their work records utilized in legal cases or courts of law. They even may be asked to give a deposition or testify in court. This could be anything from cases of public health nuisances, to misapplication of pesticides, to insect damage to foodstuffs or property. Knowing this, PMPs and health inspectors should make every effort to make sure their records are reliable and will hold up when challenged in court.
Whether or not records or testimony is “admissible” is actually a big deal in legal matters, and I hope to clarify that in this article. Attorneys and judges understand this concept, and much wrangling in court occurs over whether or not certain testimony or tidbits of information are admissible or not. Generally, statements made out of court, orally or in writing, are unreliable and inadmissible. However, even an out-of-court statement (especially business records) may sometimes be admissible when offered to “prove the matter asserted.” The main thing is to make sure your records are accurate and reliable.
The term “hearsay” is applied to testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone else. Hearsay is often struck down in courts, e.g., something like, “Jane told me that John Doe often doubles the rate of pesticides in the course of his work. I didn’t see it myself, but that’s what she told me.” There are exceptions to the hearsay rule such as: 1) records of regularly conducted business activity may be admissible and 2) public records and reports may also be admissible if deemed reliable.
For example, health inspector records, made during the regular course of one’s duties, may be allowed by judges in court cases involving PMPs. As such, it makes sense for inspectors and PMPs to make efforts to strengthen the reliability of their records whenever possible. This might include things like supplementing written records with photographs whenever possible and recording the author, date and time of any notes placed in a file. This makes the data more reliable. The person with the most direct knowledge of the situation can then be found and questioned. In your notes, try to avoid saying things passively like, “the tenant was instructed about proper clean-up procedures and also was shown the proper method of waste disposal.” Who instructed the tenant? Who showed them the proper method? Notes should be in an active voice whenever possible.
EXPERTS IN COURT.
There are two kinds of “professional” or paid experts in court cases — consulting experts and testifying experts. Consultants provide background and technical information to attorneys for a fee but do not have to give a deposition or testify in court. They can be anonymous players in the background without fear of their opinions being attacked, cross-examined or destroyed in a trial. They are merely offering up ideas and opinions to the attorneys who hired them. Consultants are important in court cases, especially in complex matters wherein almost no one understands the technical jargon. Attorneys for both sides need someone to clarify the issues and help them better prepare their case(s).
Testifying experts, on the other hand, are hired by plaintiff or defense attorneys to testify in a deposition or in court to help their cause and win the case. In this situation, it is not just the facts of the case, but how the expert frames them, how he/she looks, etc. It is all part of the package. Of course, testifying experts are supposed to be impartial and not be an advocate for the side they are working for (this is what I personally strive for). However, in reality, they sometimes want their side to win and may not offer information that hurts their cause. In fact, some testifying experts are downright dishonest and will say anything for money. They are often called professional “sell outs” who advertise in publications and trade journals as being “experts” in a wide variety of subject areas. One way to help expose these types of experts is to ask them what percent of their annual income is derived from professional “testifying.” Most real experts have another job or profession and testifying is only a part-time enterprise.
Scientific facts and expert testimony are subject to scrutiny. In the United States, federal and state courts now operate under “Daubert” rules of admissibility, based on a case in 1993, Daubert vs. Merrell Dow. In that case, the Supreme Court ordered a new standard for admissibility of scientific evidence now known as the Daubert test, which tries to ensure that so-called scientific evidence meets certain standards. Now, under the judge’s new role under Daubert, expert reports or deposition testimonies need to address explicitly factors for reliability and relevancy.
The reliability factors in Daubert include:
- • Has this scientific theory or technique been empirically tested?
• Has the scientific theory or technique been subjected to peer review and publication in scientific journals?
• What is the known or potential error rate in this theory or technique? Every scientific idea has Type I and Type II error rates, and these can be estimated with a fair amount of precision. There are known threats to validity and reliability in any tests (experimental and quasi-experimental) of a theory.
• What are the expert witness’s qualifications and stature in the scientific community?
• Can this theory or technique and its results be explained with sufficient clarity and simplicity so that a court and jury can understand its plain meaning?
Expert witnesses often will be asked to give a deposition in a particular case and (further) may be required to testify in the actual trial, should the case go to trial. A deposition is part of the process of assembling evidence before the trial in a lawsuit. Depositions may be taken anywhere, but a court reporter is there to take the deposition, and the testimony is “sworn” or under oath. The “deponent” is the person being questioned, and may be either the plaintiff, the defendant or various experts/witnesses. If you are ever asked to give a deposition, at the beginning you will be asked to offer all sorts of background information about who you are, your educational and technical background, and then, more importantly, why you are uniquely qualified to offer an opinion in the case. Be careful during depositions to only say what you intend to say and nothing extraneous. Attorneys may try to set you at ease to get you to answer questions freely — to offer up new or unintended information. This can come back to haunt you.
Attorneys may ask you leading questions to arrive at (their) desired answers, or they may ask you several questions in rapid-fire fashion, leaving you little time to think through your responses. Don’t be tricked. You have the right to slow down and think about each question before responding. You also have the right to ask for a question to be repeated or rephrased.
In one deposition I was giving, I asked for the same question to be rephrased three times. The attorney seemed frustrated, but I didn’t care. I wanted to make sure what I said was what I wanted to say. Also, attorneys from the opposing side may try to discredit or destroy you during cross-examination. They may offer up hypothetical scenarios, such as, “What would you say if I told you we have evidence directly contradicting what you’re saying here today?” Remain calm and don’t let it unsettle you. Tell them, “Fine, then bring it out. Let’s see your so-called evidence.” Chances are, they have no such evidence.
Pest management professionals and health department personnel need not be fearful of courts or legal proceedings. Keep a cool head, rely on the notes and records you made during your visits, and don’t be afraid to say, “I don’t know,” or “I don’t recall.” It’s better to say that than to piece together an answer that is sketchy, even faulty. Keep in mind that if you choose to be an expert witness (for compensation), it’s an adversarial environment and you will need a tough skin to withstand the cross-examination and (sometimes) attacks on your integrity and character.