A few months ago, as our first interview for the Environmental Evidence Project blog series (#evidence-project), we caught up with Chris Nidel, an attorney with Nidel Law, PLLC, based in the DC area. Lead image: satellite images of waste at a Maryland Perdue chicken farm from a case Chris fought in 2012.
As Chris writes in his bio, he's been involved in environmental law for a long time, starting shortly after getting a Master's in Chemical Engineering at MIT:
After graduate school, I went to work for a major pharmaceutical company doing drug process development. After a few years, I became disillusioned with the approach that the pharmaceutical industry, including the company I was working for, took toward putting profits over saving lives.
The combined realization that this company seemed more concerned about profits than creating cost-effective lifesaving medicines and that they seemed to care less about the illness and death that they were responsible for in their own right, forced me to leave. I went directly to law school at the University of Virginia. After graduating, I relocated to Dallas, Texas so I could work on major environmental and toxic tort litigation with the late Fred Baron at his firm Baron and Budd.
In the years since, Chris has worked at different firms and eventually started his own, and has been part of cases involving "cancer clusters, unsafe landfills, and air and groundwater contamination", and "air pollutants from TVA's coal fired power plants in Tennessee, Kentucky, and Alabama."
With all he's seen and done in environmental law, we wanted to ask some general questions about how evidence is used in court, from a pragmatic, real-world perspective.
I get this question all the time, where somebody says "how do I take samples that'll be admissible in court" -- and unfortunately, there's no right answer. ... I've had defendants in cases challenge EPA's own historical sampling. So you can have EPA scientists take samples and send them to whatever lab they feel is the appropriate lab to do the analysis, with whatever certification they have, and then the big company still comes back and say, "well, we don't believe those sample results. So while there is no silver bullet, the key is the reliability and ultimate credibility of the results. If the sampling and analytical methods are defensible...the data should be admissible"
Chris is realistic about the shortcomings of the current system, and emphasizes that you can never be 100% sure that evidence will be admitted, or that it will be effective:
Any time there's a legal argument in a court, there's always a chance that you'll lose it. If somebody said to me, "I want make sure I'm guaranteed that these samples -- or this evidence, or data -- is going to get admitted into court, I would be a fool to say, "sure, here's what you need to do guarantee it," because there's no guarantee. If you file a case against Monsanto, and the judge happens to play golf with the vice president of Monsanto, you may not be able to get those samples in. These issues may be out of your control and are independent of who did the analysis, and what qualifications they have, and what protocols they followed.
Data without advanced degrees
Chris has, however, worked on a case with Waterkeeper Alliance where samples were collected, stored, and managed by someone without a formal scientific degree. In this case, the person collecting samples was member of the local Riverkeeper organization and was an environmental advocate, but did not have extensive scientific training. Rather, she had a web-based certification for water sampling. According to Chris,
...the more important thing was that she actually followed a protocol. She got sterilized sample bottles from the lab, she wore sterilized gloves when she took the samples ... she filled out the chain of custody, she took it to the lab within the specified amount of time, she kept the cooler on ice, whatever was needed. And that was it. She took it to a lab, and they followed certified protocols. We didn't hire an engineer, or a chemist or a biologist to go out there and we didn't need to.
Due to this sampling protocol and detailed chain of custody, and since the laboratory followed an established analytical protocol, the samples were admitted as evidence in court without issue. In fact, the validity of the samples themselves wasn't even questioned in this case. Demonstrating the use of well-documented and rigorous methods can sometimes be sufficient for samples and data collected by non-accredited persons to be accepted as court-admissible evidence.
Clearly, there are nuances to this, and even without a cookie-cutter approach, there are pathways for people without a scientific degree to produce knowledge in ways that can be legally recognized. But that's what can be so frustrating about this topic -- it's not a clear set of rules you can just follow, and even if you follow what rules there are to the letter, you're still not guaranteed a result.
The example above specifically deals with samples that were analyzed later in a lab. What about other pathways? Many, it turns out, involve some kind of expert witness to authenticate, or essentially vouch for, the evidence. The judge or jury, who may not have relevant formal backgrounds to evaluate the evidence, won't be, as Chris puts it, "sitting there trying to speculate as to why they should believe one over the other" -- they'll rely on experts for that sort of thing. But who chooses the experts?
The problem with those experts are they are going to be paid by both sides. Clearly, they're going to have an opinion that's in your favor, and the other side is going to come in with an opinion in their favor, and... if you thought the DNC was bad, that's the sausage being made.
Not to mention -- what qualifies someone to be an expert in court? How much do expert witnesses tend to cost, and what happens if one side or the other can't afford an expert witness? We hope to circle back to this question in a later post.
Looking for a way through the thicket, we were really interested in photographic evidence, and how it might be different -- does it require expert authentication too? Chris said that it depends:
What conclusions or facts are you trying to establish? In our PCB case we used a lot of historic aerial photos... and EPA had an aerial photo lab assess the pictures -- here are barrels, etc, here are contours.
So interpretation by experts can enter into it. But what's most important is how it fits in with, and can relate to, other supporting evidence. One key aspect appears to be whether or not understanding a given piece of evidence is common knowledge, or if it requires certain training and experience to understand the implications of that evidence. Chris talked through a scenario we mentioned in #OpenHour about a photograph taken by a crane operator, who documented a plume of suspected pollution in a nearby waterway:
If you just put the guy in the crane on the stand, and you say, "You were up in the crane, you took these pictures. How did you take them? On what day? What were you looking at? Explain to us what direction you were facing when you took the pictures." [Because] the guy who sat in the crane who doesn't have any background, you probably don't get anywhere with it. You get the fact that there are pictures; you might even get them admitted. You might get the jury to be able to draw their own conclusions:
"I took the picture, I was on top of my crane, it's about 200 feet up, I was looking at the South Bay and this is what I saw."
The jury can look at that picture and they can understand that. Everything is good up to that point. Now, "I think this looks like a bunch of chromium was thrown into the bay. I'm just a crane operator, [but] my conclusion is that a bunch of chromium was going on in the bay that day."
That probably doesn't fly because neither the guy in the crane or the jury could conclude that it's necessarily chromium. On the other hand, if you can get that in front of the jury and the judge says, "I don't know that Johnny in the crane can tell us it's chromium, but I think it's admissible," and the jury could make their own deduction that there was chromium because you have other evidence. Let's say that you have evidence of what was in the barge from which the plume was coming. Now we have test data that shows that the barge was full of chromium, and now you have a photograph from Johnny in the crane that looks like a bunch of stuff is coming out of the barge, ergo, the jury decides chromium came from the barge.
You can also hire an expert and then the question would be does that expert have something that will help the jury themselves that the jury doesn't have without the expert? The expert comes in and says, "I've seen lots and lots of chromium discharges from power plants and I know what chromium looks like when it gets discharged, and this is clearly a chromium discharge." Then you get at it that way as well, and that's probably the typical way to do it, albeit the expensive way to do it. You hand off those pieces of evidence to someone else to draw the conclusion that you want to draw for the jury.
Given the complexity and uncertainty of the law as it plays out in court, we found it very helpful to hear about specific cases and examples. It seems that permissible and influential evidence is in the eye of, well, many beholders. While sometimes it may depend on internal, potentially invisible relationships between a judge and the case at hand, other times it's about walking a jury through enough solid testimony for them to draw conclusions about the value of the evidence themselves.
There are a few things we have learned to that can help us strengthen our cases as potential curators of evidence. We can make sure we're following existing protocol, as seen in the Riverkeeper example. We can also secure supporting evidence for our claim, such as seen in the crane operator example where supporting evidence could come from a lab or an expert witness.
Our hope is that in that the posts to come, more of these pathways to success, and limitations around evidence, are teased out. In the meantime, let's continue these discussions here and ping in with your questions and ideas. Thanks to Chris for making time to talk with us!
Questions we've addressed here:
- How is environmental evidence admitted into court-based legal processes?
- What can strengthen the case for evidence to be admitted in court?
- Who can vouch for, or interpret, evidence in court, and how is it weighed?
- Is photographic evidence treated differently from other environmental evidence in court?
Questions we'd like to address in upcoming posts:
- What collection, storage, and analysis protocols can strengthen environmental evidence in court?
We're moving these questions into the new Questions system -- so feel free to repost one here: