Nearly two-dozen climate scientists and educators spent an intense week being trained on the ins and outs of courtroom civil trial questioning; trial stages and proceedings; arbitration hearings; and communications with plaintiff and defense counsel, with judges, and with media.
SAINT PAUL, Mn. — Climate scientists, educators, and communicators met August 7-12 at the William Mitchell College of Law for an intense immersion into science communications and the law as part of an initial effort to improve their skills in testifying in legislative and regulatory hearings, arbitrations, media interviews, and civil court proceedings.
Evidence that Cloud Seeding Caused Subsequent Flooding?
With support provided by the National Science Foundation’s Paleoclimate Program, Atmospheric and Geospace Sciences, the workshop offered some 23 scientists from around the country insights into the challenges of communicating effectively with a jury, with judges, with plaintiff and defense attorneys, and in the face of sometimes friendly and sometimes hostile questioning. The fictional case study at the center of the week’s training involved a cloud seeding operation undertaken to ease a five-year drought and the damages of an ensuing record-breaking flood that led to the deaths of 14 citizens and to extensive property damages.
Half of the class of workshop participants was paired from the beginning of the week as representing the plaintiffs — the community flooded, relatives of those killed, and property owners seeking to recover damages. The other half was assigned to the defense — the fictional state’s weather modification board and its officials, the company permitted to do the cloud-seeding, and its executives.
Plaintiff’s ‘Preponderance of Evidence’ Burden of Proof
With the plaintiffs having to prove their case through the legal standard of demonstrating a “preponderance of evidence,” the trial in effect came down to whether the defendants had breached their responsibilities under their permit and whether the cloud seeding operation could be proven to have led to the flood and resulting damages. A detailed (again fictional) file consisting of suggestive e-mails, allegations of a “cozy” relationship between the permittee and the permitting agency, changes in operating practices from those initially planned, and a nonworking radar system provided fodder for the plaintiff’s attorneys. The scientists defending against those claims in effect had to demonstrate that “Rain Makers, Inc.” had conducted itself responsibly and, most importantly, that the plaintiffs could not prove a causal relationship between the cloud seeding and the subsequent devastating flood and damages. That left some of the plaintiff’s counsel — that is, in real life, the scientists — in the unusual position of having to argue in the absence of scientific evidence to support their positions.
|Scientists make their case for the defendant and plaintiff in mock arbitration involving whether severe flooding, loss of lives, and property damages were the result of a cloud-seeding weather modification program. (Photo courtesy of Tim Rummelhoff)|
For scientists not used to a courtroom setting or the kinds of legal reasoning, ground rules, and questioning they could face on climate change issues in the future, the week-long experience — frequently running well into the evening as both sides studied unfamiliar books on depositions, trial procedures, and courtroom and negotiation strategies — was designed to provide insights into the kinds of situations climate scientists may increasingly find themselves confronting in the future. It appears to be a prospect — for instance, testifying as an expert witness in friend of the court proceedings — hardly on radar screens of most climate scientists.
Not Your Standard Science Subjects …
With expert law school faculty members supported by current and recently retired state judges and a range of outside litigation professionals and consultants and print and broadcast reporters, the participating scientists found themselves throughout the week in detailed briefings on issues ranging:
— from jury selection to “voir dire” (pretrial questioning of prospective jurors to determine their suitability for hearing a case fairly);
— from uses of cutting-edge presentation technologies and graphics to arbitrations; and
— from approaches to opening statements and closing arguments to strategies for direct and cross examinations of witnesses.
On the final day of the simulated trial, the law school brought in some 20 local residents who sat as jurors for the two 90-minute plaintiff and defense arguments, complete with pre-hearing and pre-deliberation directions from sitting Judge Kathleen Gearin, who along with other Minnesota judges and defense attorneys had participated in much of the week’s exercise. In a clear break from standard courtroom practices, the scientists representing the make-believe plaintiff and defense were allowed to sit-in on jury deliberations, hearing which parts of their arguments did or did not strike a responsive chord with individual jurors. With the jurors split into two separate groups for purposes of the deliberations and verdict, each jury team in the end split on whether the defendant had breached its responsibilities involving the cloud seeding. Each also ruled that the plaintiff nonetheless had failed to prove a cause and effect between that seeding and the subsequent flood and damages, thereby ruling for the defense in the case.
The climate scientists participating in the workshop — including several very prominent in the field — generally expressed strong satisfaction with the learning experience, notwithstanding the at-times stressful nature of the competition, albeit fictional, with their courtroom adversaries.
Several had had previous actual experience as expert witnesses, but they generally agreed the confrontational nature of climate change policy and the litigious nature of society overall make it more likely they and their peers will increasingly find themselves facing such communications challenges in the future. It’s a prospect many climate scientists may see as increasingly likely … but not one they likely look forward to participating in personally.
The Yale Forum editor and author of this piece was among those participating in the William Mitchell College of Law’s “Expert Witness Training Academy,” scheduled to be the first of three such sessions over the next couple of years.