1. A Technical Dissection of the Water Rights Lawsuit
Urban Water Institute, Inc.
Annual Conference
August 18, 2017

2. Panelists Dennis Williams, Ph.D., Geoscience Support Services, Inc.
Carl Blumenstein, Trial Attorney, Nossaman LLP

3. RETENTION OF EXPERTS

4. Retention of Experts
Client considerations in selecting experts/consultants
Expert considerations in agreeing to retention
Testifying expert vs. behind-the-scenes consultant
Avoiding conflicts, protecting attorney work product, Shadow Traffic Network v. Metro Traffic Control, Inc.
Budgeting

5. SGMA CASE STUDY

6. SGMA Case Study: Conflict # 1
Volume of basin recharge?
Proportion of rainfall, irrigation
Rules of thumb vs. local estimates vs. calculations
Stream infiltration
Textbook infiltration rates vs. site-specific testing
Mountain front recharge
Estimates vs. calculation as residual
Artificial recharge
Estimates, accuracy of measurements

7. Infiltration Above-Below Stream Gage

8. Artificial Recharge – Everyone Agrees on Amounts, Right?

9. SGMA Case Study: Conflict # 2
Volume of pumping?
Domestic pumpers
Necessary to quantify?
Agricultural pumping
Reported pumping vs. generalized crop duty vs. calculations using local studies

10. Historical Water Supplies

11. Estimating Pumping

12. SGMA Case Study: Conflict # 3
Determining Sustainable Yield?
Undesirable Effects
Differing viewpoints
Measurable objectives and minimum thresholds
Variety of approaches
Calculation
Groundwater model vs. historical data analysis vs. water budget

13. Base Period for Safe Yield/Sustainability

14. Technical Investigation

15. Technical Investigation
Groundwater models-the good, the bad, the unknown
Performing additional field work
Data gaps and assumptions
The risks of doing too much (or not enough)

16. Model Domain Disparities

17. Preparing for Battle

18. Preparing for Battle Opposing experts: Collaboration vs. Confrontation
Performing “good science” in an adversarial setting
Coordination of multiple experts
Developing a compelling visual presentation
Graphic depictions
Understandable
Persuasive
Not too “slick”
Not too many

19. The Minefield of Expert Discovery

20. The Minefield of Expert Discovery
Typical state court procedures
Party must serve requests for disclosure
Identity of experts, brief description of testimony 50 days before trial
No expert reports
Expert produces file, notes
Learn substantive opinions from oral deposition of expert, <30 days before trial

21. The Minefield of Expert Discovery
Expert deposition tactics
Obtain all opinions
Confirm areas where expert has no opinion
Make record of what was not produced
Develop material for cross-examination

22. Expert Testimony at Trial

23. Trial Graphic

24. Trial Graphic

25. Trial Graphic

26. Trial—Direct Examination
Expert examination
Succinct, persuasive Power Point, with graphics
Practice, practice, practice
But, keep it conversational
Expert as guide/teacher
Appeal to common sense, water balance and other “real” facts

27. Trial—Undermining Opposing Experts
Motion practice to exclude undisclosed opinions
Rebutting technical substance is the expert’s job
Be strategic on cross-examination

28. Trial—Undermining Opposing Experts
Key takeaways on cross-examination
Stage the battle on attorney’s turf—not the expert’s
Contradiction/inconsistency with other experts
Failure to ask (or answer) key questions; what the expert did not do
Play up expert’s errors/misstatements
Make the expert angry (if you can)
Keep it comprehensible
Use expert’s slides for cross

29. QUESTIONS???

30. Dennis Williams, Ph.D. dwilliams@geoscience-water.com
Contact us
Carl Blumenstein
Dennis Williams, Ph.D.