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Legal Lingo Part 3 - Case Law and Expert Opinions

Wendy Pearson, founder of Pearson Research Group - RF Cafe

Wendy Pearson is the founder of Pearson Research Group. She has over 15 years of experience providing strategic litigation support and expert witness support on over 50 major cases involving contaminants in the environment. Ms. Pearson's expertise encompasses bridging the gap between science, engineering and the law. She assists clients with developing case strategy and understanding technical issues, and works with expert witnesses to ensure high quality work product ...

Expert Library banner, by IMS ExpertServices - RF Cafe

Reprinted with permission.

IMS ExpertServices periodically sends me e-mails that highlight recent key court cases that can significantly affect the effectiveness of expert testimony, both for the plaintiff and for the defendant. You need only scan the headlines I post daily to know the importance of effective legal representation when intellectual property (IP) is being contested.

Writing for IMS ExpertServices, Wendy Pearson, of the Pearson Research Group, offers this third installment in a series of articles advising people new to the expert witness realm on how to prepare for the process. Being an authority in your professed field is not always enough to assure success in the courtroom - or even for making it as far as a courtroom. Parts 1 and 2 provided a basic introduction to legal lingo. Part 3 discusses "case law," which is where courts cite precedence by higher (superior) courts when deciding cases. Whether or not you consider it a legitimate tactic, your duty as an "expert" includes being aware of applicable instances and being prepared to reaffirm or discredit its use to the advantage of your client. Even the most brilliant engineer can be no match for a crafty lawyer who is an expert in making witnesses appear like an idiot savant. The courtroom is truly a venue for a survival of the fittest battle for existence -provided you have a truly unbiased, agendaless judge.

Legal Lingo Part 3 - Case Law and Expert Opinions | Part 2 | Part 1

Posted by Wendy Pearson

August 28, 2016

It is important for you to know the case law, or precedent, governing certain issues on which you are providing expert opinions. Knowing to ask your attorney about the applicable case law not only demonstrates your knowledge of the legal system, but more importantly, having the information ensures you are sufficiently aware of what the court will be considering on various issues when you are forming your opinions, preparing your expert report, and testifying in deposition and at trial. This article explains the basics of the U.S. court system and provides an example of how case law was used to resolve a question of law concerning a pollution exclusion provision in an insurance coverage matter involving groundwater remediation.

Case Law

State Courts Pyramid, Legal Lingo part 3 - RF CafeThe U.S. justice system relies on "stare decisis," Latin for "to stand by things decided," which means courts abide by prior court decisions on cases involving similar issues and questions of law. The collection of cases in which prior court rulings were made is referred to as case law, a term that attorneys regularly use when considering which cases to cite in arguing their position before the court. The term "precedent," or rule of law, is the actual decision that a court relies on or considers when deciding a current case with similar issues. Both judges and lawyers conduct legal research to determine the relevant precedents established in their jurisdiction and how they apply to the present case. The jurisdiction in which a case is pending is extremely important because it dictates the applicable and controlling case law the court will abide by when making its rulings. As shown in the figure below [above, blue triangle], at the state level, jurisdiction refers to the groupings of trial courts that are bound by decisions made by the higher controlling regional appellate court. All regional appellate courts are bound by the decisions made by the highest court in the state, usually called the "Supreme Court." When precedent has not been established by the highest court, then a ruling by the appellate court becomes binding upon the lower courts in the same jurisdiction. When the supreme court of that state hears the case and reaffirms, modifies or overturns, or rules in another case on similar facts, a new precedent is set for the state.

Federal Courts Pyramid, Legal Lingo part 3 - RF CafeAt the federal level [green triangle], there are 94 District Courts that fall under the jurisdiction of the U.S. Court of Appeals with one located in each of 13 separate circuits (Circuit Courts). These appellate circuit courts are bound by decisions of the U.S. Supreme Court. The appellate courts in different circuits are not bound to each other, though in a number of cases one circuit court may be guided by decisions made in another circuit court and make similar rulings.

The Leaking Landfill: An Example of Expert Opinion in the Context of Case Law

Last year, in Decker Manufacturing Corporation v. The Travelers Indemnity Company, the U.S. District Court in the Western District of Michigan held that policyholders do not lose insurance coverage under the pollution exclusion provision just by putting their hazardous waste in landfills that are meant to contain the waste materials. A summary of the case can be found on Orrick's Policyholder Insider blog. In short, the Court held that the release of waste from the landfill, as opposed to the intentional placement of waste into the landfill, was the "relevant discharge" to consider in terms of what Decker (the policyholder) "expected or intended" when it used the landfill. The Court found that the landfill was equivalent to a "container" such that Decker would have expected it to behave like a container – i.e. the placement of materials inside it would not be nor result in a "discharge." Why did the court rule this way? Case law. In his opinion, Judge Robert Holmes Bell provided a thorough analysis of the applicable Michigan case law pertaining to the landfill issue in the case. He found there wasn't a precedent set by the Michigan Supreme Court, therefore the court was bound to Michigan Court of Appeals decisions if relevant. Ultimately two cases were cited involving pollution exclusion in the context of landfills. Judge Bell stated, "[t]he landfills at issue in Kent County and South Macomb are virtually identical to the Landfill at issue in this case." He was referring to Michigan appellate court decisions from prior cases: South Macomb, 225 Mich.App. 635, 572 N.W.2d 686; Kent County, 217 Mich.App. 250, 551 N.W.2d 424. In these cases, the court had ruled the landfills at issue were analogous to a container as long as the landfills were "state of the art," meaning built in conformance with the contemporaneous standards. The Court in Decker agreed with defendant Traveler's expert that the landfill was not designed or constructed to prevent the escape of pollutants to the soil or groundwater. Where the Court disagreed, was in determining the applicable standard for the landfill. Traveler's expert opined the landfill did not conform to "state of knowledge" (emphasis added) because it did not meet standards defined by the engineering and scientific communities at that time. The Court disagreed, stating the applicable standard was "state of the art" (emphasis added): what was known at the time by the designers, inspectors, and licensors. Applying this standard and citing City of Albion, 73 F.Supp.2d 846, South Macomb and Kent County, the court ruled the landfill did conform to the applicable standard in Michigan - it was equivalent to a container despite the fact that it had leaked contaminants into the environment. This case is a perfect example of how case law is used by courts to resolve questions of law and how expert testimony is considered in the context of case law and precedent.


Before you start formulating your opinion, speak with your client attorney about the particular jurisdiction and the context of the relevant case law as it applies to your area of expertise. You can even ask the attorney to provide you with court decisions from prior cases relevant to the current case. That way, you can see for yourself how the court applied the law to the issues on which you will be offering testimony.  <Comment>

This article was originally published in Expert Library, a newsletter distributed by IMS ExpertServices™. IMS Expert Services is the premier expert witness search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal industry Expert Library publications, please visit IMS Expert Services' recent articles. For your next expert witness search, call us at 877-838-8464 or visit our website.



Posted September 6, 2016

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