Environmental cases are among the hardest types of cases to litigate. They include technical elements similar to patent cases, they involve scientific elements similar to pharmaceutical cases, and they can bring in damages issues similar to construction cases.
In addition, for many jurors, environmental cases are fraught with political ramifications in a way that many other cases are not. Jurors often harbor a basic belief that if a big company is on trial, it has probably harmed the environment in pursuit of profits and has caused long-term damage to the planet – either by directly polluting the air, water, or ground, or by contributing to global warming.
In addition, the natural complexity of many environmental cases means that demonstrative evidence must be used extensively in any trial presentation, and this demonstrative evidence will almost always be highly scientific in nature – something that can numb the minds of many jurors.
In law school, I concentrated on environmental law and worked in the environmental department of a major pharmaceutical firm, so I understand both the complexity of environmental cases and their importance in trial presentation.
So the challenge for those involved in trial presentation in environmental cases is to overcome jurors’ biases and to keep the cases interesting.
The first rule in developing a litigation narrative and the appropriate litigation graphics, especially in an environmental case, is to simplify the complex. Unlike the trial lawyers, a jury has not lived with the case for many years. The key is to build trial presentations that present evidence and information in a manner that can be easily digested by those who, based on limited time and/or limited exposure to the case, want and need to see the big picture.
For example, a case may center on the process of hydraulic fracturing, better known as fracking. As a means of extracting natural gas from rock, fracking has the remarkable potential of quickly making the United States a net exporter of natural gas rather than a net importer. Yet fracking has been challenged on a number of seemingly cogent environmental grounds.
In a case that involves fracking, a good trial presentation may be used to educate a potential jury pool, to persuade and inform government officials and to support settlement negotiations. The same would be true in nearly every kind of environmental case.
In many other types of cases, the task is further complicated by the fact that environmental harm occurs over a period of years or even decades. In such situations, it is crucial to show not only how the damage occurred initially but how it became more serious, or less serious, over a period of time.
Both sides in a major environmental case usually bring in environmental experts to help explain their side of the case to the jury. However, these experts are trained in science and engineering, not in information design, so their testimony, however scientifically compelling, may be presented in a way that is too complex to appeal to jurors. An astute expert knows that testimony can be bolstered by the inclusion of an outstanding trial presentation.
We have prepared a handbook on environmental litigation and trial preparation called the “Environmental Litigation Trial Presentation & Trial Prep E-Book.” We planned it as a guide to all the issues and all the possibilities that can come up in environmental litigation – whether the issues involve the use of PowerPoint, scientific expert witnesses, body language, or any of a myriad of other questions that can come up in this complex field.