How To Become An Expert At Finding The Right Expert Witness

Sponsored Column - Better Business Column

March 27, 2020

HI, I AM MICHAEL HEAD, CHIEF LEGAL OFFICER AT PACIFIC ENVIRONMENTAL ANALYTICS. In this month’s Better Business Column, we are considering the importance of having an expert in your corner when facing legal challenges to your cannabis cultivation operation.

As a relatively new industry, legal cannabis cultivation is under intense scrutiny by not only government regulators but also a skeptical public who is slow to let go of the stigma surrounding the crop. A natural consequence of that scrutiny is legal proceedings – these can take the form of full blown litigation, permit hearings or even business licensing reviews. Regardless of the venue, we have observed how important it is for cannabis cultivators to have a qualified expert witness in their corner.

Given the fact that legal cannabis cultivation is so nascent, it is understandable that even those tasked with determining whether cultivators are operating in bounds, from judges to review boards, may not fully understand the ins and outs of a cultivation operation, especially the technical considerations. For that reason, it is often critical that education be a part of the cultivator’s “defense” at a legal proceeding – after all, if a decision maker doesn’t know whether a cultivator is taking the appropriate steps to address a perceived problem (a common example is odor) because they don’t know the science behind the “problem” or the technology behind the accepted solutions, it is difficult (if not impossible) for an appropriate “verdict” to be rendered. The task of providing that education often falls on the shoulders of experts in the relevant fields who testify at the proceeding.

A critical consideration when looking for an expert witness is that they must not only have sufficient hard skills (i.e., a proven knowledge of the topic and sufficient academic credentials with relevant experience to have credibility) but, just as importantly, soft skills (i.e., an ability to help lay people understand the science/technology at issue). The most effective expert witnesses are those who not only know their field inside and out but can help provide a sufficient working understanding to decision makers who aren’t familiar – we have found those that excel are as comfortable in a classroom (or conference room) as a laboratory and often come with significant presenting and teaching experience.

A good expert witness can have an impact that extends far beyond the proceeding in which they are testifying. For example, one of our clients has been called upon to testify as an expert witness in a potentially landmark legal proceeding in Canada that could have a far-reaching impact on the cannabis industry in that country. While the party requesting our client’s expert testimony obviously has a vested interest in a strong performance, given the amount of stakeholder eyes on that “case”, the importance of finding the right expert is amplified.

Good expert witnesses, when properly vetted and prepared, can mean the difference between staying in business or going out. The internet is littered with horror stories about expert witness testimony gone wrong – from experts who did not have the requisite experience or qualifications (e.g., an expert who admitted to greatly exaggerating his academic credentials) to those who were perfectly qualified but whose behavior/personality on “the stand” turned off the decision makers (e.g., a respected author whose credentials were impeccable but offended a jury with his arrogance and condescending attitude toward the other party). Unfortunate instances like these, while rare, serve as reminders of the critical importance of vetting potential expert witnesses BEFORE they take the stand to avoid having a potential ASSET become a real LIABILITY.