Doing work as a consultant expert and testifying witness is good side money for a crop consultant and research consultant. Jeff Masson, attorney specializing in agricultural litigation cases, provided the expectations of attorneys in hiring crop and research consultants during the National Alliance of Independent Crop Consultants’ annual meeting.
General litigation attorneys often need someone to assist them in understanding agriculture; therefore, they will hire a consulting expert. This person will not be expected to testify and any work results or information that they provide an attorney is privileged, but if this consultant does project work to prove or disprove a specific situation, then testifying could be required.
This expert helps “lead the attorney down the right path,” Masson said. “They review the facts and see if they can explain what happened.” They might be asked to recreate the situation and subject of a case.
Masson said, “Sometime you may be contacted and the attorney says they have an issue with this chemical and this is our theory. We want you to put some plots in and see if you can recreate what happened. That is consulting expert work, and they’ll want you to testify on how the plot was done.”
Such testimony will put a consultant into a hybrid situation of consulting expert and expert witness. The opposing attorney is going to try and disqualify the way a plot was established and the experience of the consultant to properly interpret results.
Qualifying as an expert witness doesn’t depend on being a published author. “The federal rules provide that a witness qualifies as an expert by knowledge, field experience, training or education and may testify in the form of opinion,” Masson explained.
Once an expert witness has been qualified by the court, the witness’ report and methodology can still be discredited. It can be important to have published support or peer review acceptance of methodology used unless the expert has established their own new “finding” that they can support.
Attorneys make selection of who they want to work based on more than sheer knowledge. “Someone seated in front of a jury not only has to be trustworthy and honest but believable,” Masson said.
Selection of an attorney and consultant working together is a two-way street because the consultant has the choice of not working for an attorney. Masson said it is important to not work with an incompetent attorney that might contribute to getting someone disqualified.
“If you think an attorney isn’t worth his salt, you probably don’t want to do work for him. The reason is because if you get disqualified there is now a judicial record of your disqualification,” Masson said. “The next attorney is going to say he cannot hire you because you previously were disqualified.”
ATTEMPTS TO DEPOSE
Once involved in a case, the consultant has to be aware that the opposing attorney is going to do everything possible to “strike you as an expert” during the two times that you might have to testify—deposition and actual trial. In most situations, the deposition will be the only testimony because more cases than not are settled after that stage.
An expert witness must be thorough in producing a report that outlines statements and opinions along with the basis and reasons for them, the facts and data considered including all exhibits. A thorough report will also provide an explanation of why any data or facts weren’t used in the final report.
The qualifications of the expert also must be provided, including a list of published materials in the last 10 years and a list of all other cases in the past four years where testimony was provided. Disclosure also includes compensation being paid.
Companies representing experts will contact attorneys when cases are filed, Masson said. Although not as many attorneys use an expert placement service as might be expected, but connections can be made between attorney and experts this way.
The normal fee by a referral company is $100 per year to keep someone’s name and resume on file. If they see a lawsuit that might fit with a consultant’s expertise, then they can offer that person to an attorney involved in the lawsuit. If the attorney retains the person referred, then the referring company will require 10 percent to 20 percent of the money earned by the consultant.
EXPERIENCE OF THREE
During the NAICC workshop on consulting for lawsuits, three alliance members explained what they have been asked to do for attorneys and insurance companies. Insurance companies suing and those defending clients against crop damage are common situations.
Brian Foster, Jamestown, N.D., Centrol Ag Consulting, explained his experience in herbicide drift damage cases. He said, insurance companies “need someone who is knowledgeable of the area. They need to know if there were any factors that would have been affecting a crop in that specific region such as flooding, hail or drought. They also need someone knowledgeable of the herbicides used and the symptoms of them on off-target plants.”
Documentation is what Foster is hired to do, and he uses photographs, GPS/GIS locating, walking fields and his experience. If less than 100 percent of a field is affected, then Foster splits the field into affected and unaffected to eventually oversee harvest comparing elevator scale tickets, weigh wagon results or calibrated combine yield monitors. Whole field damage means a comparable field has to be located for comparison.
“Coming up with bushels is a lot easier than coming up with the price per bushel,” said Foster. He has to investigate if the farmer filing a suit had a contracted grain price and what the cash price was in the area the day that the crop injury occurred.
Phil Cochran, Paris, Ill., Cochran Agronomics, noted that he specializes in fertility issues. He said, “My experience is that I haven’t been contacted until the insurance company has exhausted all other possibilities, and they are in a corner needing help to clean up the mess.”
It has occurred that he was contracted within a week of damaged fields being harvested.
His first action is to convince the insurance company that he must have aerial imagery to work on the case. He contends that imagery details is extremely important and can eventually save the insurance company rather than cost them.
Fertility case examples might involve fertilizer not being evenly applied, equipment malfunction in spreading, herbicide impregnated fertilizer application or damage from applying nitrogen.
Cochran uses as much GIS as possible which allows providing extensive detail within field boundaries and overlaid on the aerial imagery. Another tip from Cochran is to request raw yield data from a yield monitor rather than processed data from a monitor because this allows relative comparison.
Calvin Viator, Ph.D., Thibodeaux, La., Calvin Viator and Associates, LLC, reported that he has done a lot of expert witness testimony over the years.
His main tip to anyone who might be called to testify is to be ready to educate those taking a deposition or those in the courtroom. “The deposition requires extensive preparation, but if you know your topic you are going to be alright. The opposition attorney is just trying to test you to see how you’ll do as a witness…If you show them you will be a very credible witness before a judge or jury, they are probably going to find a way to handle this and settle.
“Many times the general practitioner lawyers know very little about agriculture; so, you have to educate them fist, and the judge may or may not know anything about agriculture, and you have to educate him without being condescending. The best thing that can happen is for him to stop you and ask questions,” Viator said.
As Viator suggested, various certification and association membership can be important for being hired to work on all types of potential legal cases and those scheduled for litigation.