Section Eight
KEYNOTE ADDRESS
98    THE ENVIRONMENTAL ENGINEER AS AN EXPERT IN
LITIGATION
Mitchell L. Lathrop,1 Senior Partner
Adams, Duque, & Hazeltine
New York, New York 10021
INTRODUCTION
A decade ago the life of an environmental engineer seldom, if ever, touched the American judicial
system except for an occasional traffic infraction or the probate of a will. Most engineers were
extremely uncomfortable in court, preferring to do that which they knew how to do and avoid
entering what appeared to be a dark and inhospitable realm dominated by controversy, antagonism
and confrontation. During the past ten years, however, the pendulum has swung to the other side and
it is now commonplace for environmental engineers to be active participants throughout the litigation
process. The purpose of this paper is to offer some suggestions, some observations and some caveats
to those environmental engineers who venture into the judicial arena. Of necessity, it cannot be all
encompassing or hope to cover every situation which may arise. Still, it is hoped it will be useful in
highlighting some of the key factors which affect the environmental engineer in his2 role as an expert.
WHAT ARE YOU?
All too often, particularly when dealing with inexperienced counsel, the environmental engineer will
not have his or her role defined.3 The failure to clearly and carefully define the role of the environmental engineer at the outset of any assignment can have serious and possibly embarrassing consequences as litigation progresses.4 When a role changes, as sometimes happens, that, too, should be
clearly recognized by both counsel and the environmental engineer. What, then, are the roles an
environmental engineer can expect to fill in the dangerous game of modern litigation?
The environmental engineer who becomes involved in the judicial process will invariably be either
(1) a percipient witness, (2) a consultant or (3) an expert witness. The lines between the three categories
are often blurred, and a change from one role to another is not necessarily a problem provided both
the environmental engineer and counsel are aware of the change and recognize it. Most importantly,
the ramifications of a shift from one role to another must be appreciated and the attendant consequences recognized, both in terms of the testimony which may be given and the financial consequences to both the environmental engineer and the litigants.
THE PERCIPIENT WITNESS
Webster defines the word "percipient" to mean "a person who perceives"5 and the word "perceive"
to mean "1. to take hold of, feel, comprehend; 1. to grasp mentally; take note (of); recognize;
observe; 2. to become aware (of) through sight, hearing, touch, taste, or smell."6 For purposes of
litigation, therefore, the percipient witness is one who actually observed the events about which he is
to testify. For example, the environmental engineer who testifies as a percipient witness might be
called upon to testify about what he saw at a specific time at a particular field location, exactly what
was physically done in carrying out laboratory analyses of samples taken in the field, or what entries
were fed into a computer to reach a particular result. Note that in the foregoing example the percipient
witness does not testify about opinions formed, conclusions reached or the application of the various
formulae which govern the particular results reached. Somewhat oversimplified, the percipient witness testifies only to observations made at the time of the operative facts in a case, but places no
interpretation on such observations and reaches no scientific conclusion based upon such observa-
44th Purdue Industrial Waste Conference Proceedings, © 1990 Lewis Publishers, Inc., Chelsea, Michigan 48118.
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