MALE: You’re listening to Environmentally Speaking, a weekly podcast diving into legal matters surrounding the environment, public utilities, energy, zoning, and permitting laws in Rhode Island and the surrounding areas with your host Marisa Desautel.MARISA: Welcome to Environmentally Speaking. I am Marisa Desautel an attorney with a few decades of experience.

CLARICE: And I am Clarice. I’m coming with your topics, concerns, issues, and things to talk about every week. So because it is [inaudible] holiday, we thought we would do something a little bit more lighthearted, a little bit more fun. Maybe that’s the right word.

MARISA: Fun. Fun for us probably, not so much the audience. I don’t know. I generally have a good time with these podcasts, so hopefully the audience is, as well. But this idea came to me fairly recently because I was at a hearing where – I’m going to try to get through this without laughing, but it was pretty funny. There was a witness testifying who I don’t think had any experience with that procedure and rightfully so. Unless you are in the judicial branch or an attorney or working in the court system you probably don’t have any experience with testifying and it’s an intimidating situation. It’s meant to be. You walk into the courtroom. Everything is mahogany. Everything is made out of mahogany. Like even the judge is made out of mahogany.
So you’re meant to feel intimidated and it works clearly in this instance because this particular witness I don’t think understood the concept of voice modulation. And maybe because it’s post-COVID quarantine they also didn’t understand how a microphone works, so there was a lot of yelling that went on. And then it would calm down a little bit and then the modulation would go off the table and more yelling and then some eating of the microphone occurred. And thank God we were all wearing masks because I was dying. I was dying behind the mask. And as usual, I was the most juvenile person in the room. Other people were able to kind of compose themselves. I could not get it together.
This person so entertained me and it went on and on for half an hour. It was really inappropriate that I was laughing, but I couldn’t help myself. And I thought, what a great topic to talk about on the podcast because maybe there are folks out there that are somehow involved with litigation or a situation that requires them to show up in court or go through a deposition or otherwise have an interaction with the court and litigation system that they’re not used to. And the other topic that I thought of which comes up a lot in the context of environmental law is the notion that you can testify as an expert versus someone that’s just coming in to testify as a lay witness. The person that I’m chuckling over was a lay witness and –

MARISA: — those are the most common. Those are the most common. Experts are not customary. They’re brought in for a particular reason on a particular topic, so the majority of witnesses that take the stand are going to be lay witnesses.

CLARICE: I’m so happy that this is a podcast. I haven’t stopped giggling. I mean, not to put blame on anybody in the room, but, you know, microphones were prepandemic, so it’s not like this is like a foreign technology. But then also, I mean, couldn’t the clerk or somebody just casually lean over and be like, you don’t have to yell anymore.

MARISA: Yes.
CLARICE: Like this isn’t Thanksgiving dinner with my family. It’s like we don’t all need to be yelling. That’s the time when yelling is allowed. Court, it’s not.

MARISA: Well, I appreciated this individual’s thought that projecting is important because, you know, there’s a stenographer in the room who has to capture everything that’s said. Sometimes people talk way too fast and she or he, the stenographer has to ask them to slow down. So the fact that this person was trying to project so everyone could hear was a nice thought, but it was way overkill. I mean, it was shouting. And it wasn’t – the subject matter that this person was talking about was not something that you’d ever yell.

CLARICE: I could just picture – I don’t know what this case was. I don’t know, you know, what they were testifying about, but all I can picture is somebody up on the stand and just thinking, and then I went to the [inaudible] office. And it was like fuel volume and it’s bringing me so much joy. I don’t need my coffee anymore. That’s what’s woken me up today.

MARISA: That’s pretty much what it was like. And then it would go quiet a little bit, so you’d get a reprieve to kind of collect yourself, but then it would ramp up again.

CLARICE: Oh, no. That’s almost worse because now you know how silent it was before. You have like an absolute dead silence and then how loud the shouting is.

MARISA: Yeah.

CLARICE: Oh, that’s glorious.

MARISA: Okay.

CLARICE: Going back to something a little bit more focused. You had talked about how the majority of witnesses are lay witnesses and that’s really interesting to me because usually at the firm most of my contact with people who are going to testify have been with experts that we have called in or, you know, people who were specialized in a field to review a case and give their opinion on certain things. So to hear that it’s more lay witness than expert witness was, you know, an interesting flip from my exposure. What are some things that lay witnesses are expected to testify about and are there any benefits to having a lay witness up there?

MARISA: Of course. Yeah. So that’s a great point that you just talked about where because we practice environmental law and utility law, energy law, that type of thing, we deal as attorneys and paralegals with experts because it’s such a highly scientific and technical area that the layperson doesn’t necessarily have an understanding of, so that’s exactly why you are used to dealing with expert witnesses because that’s the nature of our subject matter.
But in Rhode Island there’s something called the rules of evidence that deal with what type of information is allowed to make its way to the finder of fact in litigation. And the finder of fact is either the judge if it’s a bench trial or a jury if it’s a jury trial. The first rule of evidence that deals with witnesses is rule 701 and that’s opinion testimony by lay witnesses, your nonexpert folks that are coming in. And the rule says that if you are not testifying as an expert you are testifying as a layperson and your testimony can come in in the form of opinion only if the opinions are rationally based on the perception of that witness and if it’s helpful to provide a clear understanding of the witness’s testimony or the determination of a fact in issue. What the hell does that mean?

CLARICE: [inaudible] such a bar flashback. I think I’m –

MARISA: Yeah. Yeah. Yeah.

CLARICE: — becoming retraumatized from my past bar work. So what does that mean? Tell us more about the lay witness. And I didn’t mean to cut you off.

MARISA: No. That’s okay. Basically it means that if you’re providing lay witness testimony you can’t come in and just start talking about what you had for breakfast that day. Your testimony can be an opinion but only if you can provide the trier of fact with a perception that is based in rationality which is unique to you as a lay witness. Like you have to provide something that the court wouldn’t otherwise have access to and it also has to meet this bar of actually being helpful to something that’s relevant to the case. Again, the example of coming in and telling the court what you had for breakfast is not relevant. You know, and if you’re not sure what you had for breakfast it doesn’t provide a clear understanding and it’s got to be rational. It’s got to be rational and it has to be something that the witness has personal knowledge of.

CLARICE: I’ve always distilled it down to you have to be connected to the subject of the case –

MARISA: Yeah.

CLARICE: — through your own personal experiences that are – it might not so much be helpful but useful and related to why you’re in court.

MARISA: Yeah.

CLARICE: So if it was an issue with the sale of a house but the issue wasn’t signing the closing documents, the issue was something in the home inspection, if you’re the broker who’s coming in saying, I was there, they both signed the paperwork, well, you might only be useful in the small portion of how are these two people both connected to this home. But you may not be related, again, to the bigger issue of something’s up with the pipes.

MARISA: Right.

CLARICE: But either way you don’t need to go to a special school to say, I was there when they signed the papers. You have that experience. That’s your qualifier.

MARISA: Yeah.

CLARICE: And that’s how I’ve always separated laypeople from experts in my mind.

MARISA: Yeah. Yeah. That’s exactly right.

CLARICE: As you can tell, my notes in school were very much like lay witness like, you know, just everyday street talk. I did not write in legalese. It made it easier.

MARISA: Yeah. I didn’t either.

CLARICE: So then on the flip side, if a lay witness is just there to testify as to what they know through experience, that would make an expert witness somebody who may not know through experience but has the – has some extra level of knowledge.

MARISA: Which leads us to Rhode Island Rule of Evidence 702. It talks about the foundation for when an expert can come in and provide testimony outside the scope of what a lay witness can provide. So that rule says if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of fact or opinion. I’ve got a ton of experience with this rule.
It basically comes down to whether you can successfully present an individual through their resume as someone that has a knowledge base more robust and helpful than a lay witness, someone who can assist the judge or the jury with a scientific, technical, or other specialized area that nobody else except an expert can provide. And the interesting part about the qualification process is that notice the rule says you can seek qualification for a witness by knowledge, skill, experience, training, or education. A lot of people think that an expert witness can only be qualified because they’ve got a PhD. That’s not what the rule says.
The rule says if you’ve got knowledge, skill, experience, training, or education you can be qualified. I’ve presented witnesses before and I’ve gotten them successfully qualified as an expert based on experience alone. As we all know, there are people out there that never went to college, but they’re absolutely brilliant in their field and they have a ton of experience, 30 or 40 years in a particular area. So it’s not just whether you went to Yale. The court and the rules of evidence clearly contemplate that you can be an expert by virtue of the fact that you’ve worked in a particular area.
So, again, it’s not just education. It’s knowledge, skill, experience, or training which I think is – I find that to be fascinating. I don’t know why. Probably because I’ve duked it out in court before. A lot of attorneys will object to a witness qualification by saying, they don’t have any advanced degrees. And I love citing this rule. I think it’s great because there’s a lot of people that also do have advanced degrees, but they’ve got no experience. So that’s great. You went and sat in a classroom for 15 years, but you have no real-world opportunity yet and you’re not actually assisting the trier of fact just because you are book smart. So I find that to be really interesting.

CLARICE: Yeah. If it’s something that you’re doing maybe not every day but, you know, constantly through the course of your work or through the course of whatever it is that you’re doing and if you do it repeatedly you are going to become an expert in how that particular thing works just through constant practice.
MARISA: Yeah.

CLARICE: I find that a lot of people tend to think that an expert witness, their opinion is going to have more weight because they’re an expert because they have this specialized knowledge. There is that sort of perception that an expert witness is a better type of witness. And I’m kind of using a weird inflection because I don’t always agree with that. Are there benefits to having a lay witness up on the stand versus an expert, or does it always just come down to what are they speaking on?

MARISA: It also comes down to what the facts of the case are. The lay witness in an environmental matter you absolutely need. If you require evidence or if the case requires evidence of, let’s say, discharge of oil, you need someone that actually saw a sheen on the water or saw the oil truck flip over and spill. An expert is not going to be able to come in and testify about that unless they saw it. You know, that’s the beauty of a lay witness is they have a very unique type of testimony to provide. It’s their personal perception.
The expert is also necessary for environmental and energy matters because those are cases that generally require technical or specialized knowledge, someone that’s going to come in and talk about the math, let’s say, for cost-of-service study related to a water rate case. I have no idea how that gets done. You bring in an expert that can sit down and go through that methodology and explain to the court or to the jury how they arrived at the calculation which is now in evidence and that’s important.

CLARICE: And that being said, I’m going to take a quick second to shout out every expert I’ve ever had to e-mail and say, I don’t know what these numbers mean.

MARISA: Exactly.

CLARICE: Because like you said, in, you know, types of cases – a great example was that water ranking, not anyone in particular but just that general idea. There are so many numbers and so many calculations to figure out how much of a resource is being used, what’s that cost value. And it’s just a sheet of numbers and it’s got units of measurement that I did not go to school for, so a special thank you to them.
MARISA: Well, that’s a great example/scenario to bring up because as an attorney that’s generally the point at which in any case I think, ding, we need an expert. If I’m looking at particular evidence and I get toot a point that I feel like, I don’t get it, that’s the green light. That’s when you go to the client and say, look, I’ve gotten you as far as I can get you as an attorney. You now need the assistance of an expert. And that person comes in and makes it seem super easy to understand if they’re good at their job and puts the rest of the case together. So for me that example that you cite, get the spreadsheet and you think, I don’t know what MG over big L stands for. Like that’s the point at which if you can recognize that you don’t know things, that’s the point at which you think, I need to bring in an expert here to explain something for me.

CLARICE: I think that’s another good point of difference between working with a lay witness and working with an expert witness. I find that working with an expert witness is a bit more collaborative. There is a lot more communication between our office and them, going over information, having those discussions. A lot of times there are mini lessons where, you know, we’ll review the evidence. We’ll figure out what we know, what we don’t know yet, put together some questions, have them go over it. And then it becomes a conversation of, what does this mean. What does this look like. So there is a bit more prep work versus a lay witness. They know what they know and, you know, that’s kind of it. There’s communication, but it’s not as in depth and it’s not a mini class in a way.

MARISA: Yeah. There’s a certain level of education that comes along with working with an expert. But that’s a fine line, too, because the client is not paying you to also become an expert and to fully understand and capture the nuances. They’re paying you to present the expert so that the expert can do their job. Whereas with a lay witness there isn’t necessarily a particularized area that you need a knowledge base in to understand what their testimony is going to be.

CLARICE: Yeah. Absolutely. There’s no way that two e-mails is going to help me understand what MG over big L is. I say this story many times. I am not ashamed of it. I switched in college from a BS to a BA because to me taking on a year of college Spanish was going to be more enjoyable than taking an extra science class.

MARISA: Yeah.

CLARICE: If I’ve got a lust of questions and the expert sends me back an e-mail and says, actually, this giant graph just means everything went up five cents, cool. That’s all I needed to know. That was my small lesson.

MARISA: Well, the important question here, I think, is do you respond to the expert in Spanish. All right. So you are multilingual, right? English, Spanish, and I know you speak fluent Portuguese, so.

CLARICE: I do.

MARISA: Good life choices.

CLARICE: I wouldn’t say multilingual in the sense that I could walk around Spain or a Spanish speaking country and get by without some issues. Portuguese helps.

MARISA: Yeah. Good. All right. Well, I’m all talked out on witness testimony.

CLARICE: Yeah.

MARISA: I got nothing else.

CLARICE: That’s it. At this point we just leave the talking up to the witnesses. We’re done. All right, everybody. On that note, thank you guys for listening. Thank you for joining us. This episode should come out either Thanksgiving day or real close to it. So if you’re listening to us while you’re putting your turkey in the oven, we’re happy to be a part of that. If you have any comments, questions, topics you want to hear about, do reach out to us at info – or I’m sorry — Help@DesautelESQ.com. I don’t know where info came from.

MARISA: I don’t either.

CLARICE: Hit us up on Instagram. Rate, review, subscribe. I did enjoy those three reviews – or those three ratings, so one of those would be nice. And have a good one, everybody.

MARISA: Thanks, everyone. See ya.

MALE: Thank you for listening to this episode of Environmentally Speaking. If you’re in need of an environmental attorney, we are here to help. Call us at 401-477-0023