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Being an expert witness in geomorphology
Being an expert witness in geomorphology Edward A. Keller PII: DOI: Reference:
S0169-555X(14)00581-9 doi: 10.1016/j.geomorph.2014.12.001 GEOMOR 4992
To appear in:
Geomorphology
Received date: Revised date: Accepted date:
12 September 2014 2 December 2014 2 December 2014
Please cite this article as: Keller, Edward A., Being an expert witness in geomorphology, Geomorphology (2014), doi: 10.1016/j.geomorph.2014.12.001
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Being an expert witness in geomorphology
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Edward A. Keller*
93106,USA
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*Tel.: +1 805 448 0092; E-mail: [email protected].
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Department of Earth Science, University of California, Santa Barbara, Santa Barbara, CA
Lawyers often refer to their expert witnesses as hired guns, but it is much more than that.
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Actually, it is more like looking for smoking guns that scientifically link an event, such as a landslide, flood, or wildfire, to possible causes of the event. I say causes because triggers, such
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as high magnitude storms or earthquakes, may be the immediate cause of a landslide, but the real cause may be steep slopes, prolonged intense precipitation, or a high water table that has been
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rising for years. A real cause might also involve, to a lesser or greater extent, the hand of people, such as change in land use (vegetation management, artificial addition of water, or excavating the toe of a slope. Lawsuits happen because someone claims damage as a result of another’s actions, i.e., the hand of people. The person or persons damaged are the plaintiffs, and the person or persons that are sued are the defendants. Either side may hire you, but your job is the same either way -- determine the scientific basis of the case and explain your scientific reasoning to the lawyers, the judge, and the jury. This essay focuses on my personal experience and relevancy as an academic, teaching and conducting research and public service at a university and occasionally being an expert witness, rather than being an expert witness and working for a geotechnical or environmental company. This is a nuts and bolts essay of discussion and advice. This is not intended as a
ACCEPTED MANUSCRIPT 2 complete guide for being an expert witness. You can learn much more from the 1993 Professional Practice Handbook of the Association of Engineering Geologists (AEG), 3rd ed.
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I have been asked if a license is required to be an expert witness. I do not know about all
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states, but a license is not required in California. The court and a judge decide if a person is qualified to be an expert. Qualification is based on education, experience, and publications. An
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opposing attorney once questioned some part of my qualifications when I was working on a case
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involving an agricultural-related flood with water flowing in irrigation channels, pipes, and culverts. The opposing attorney said I was not qualified to work on water in pipes, but the judge
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ruled that I was an expert on the flow of water in channels and that covered pipes as well. Concerning the license, I decided years ago that I did not want a license because I did not want to
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compete with the students I train in Engineering Geology. Many of my former students went on to earn a license and have become successful consulting geologists.
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I have been an expert witness in a variety of settings over a period of about 20 years and have had the opportunity to work with several lawyers. Sometimes, when I discuss being an expert witness with my colleagues at meetings and so forth, I have noticed some reservation on their part because they are uncomfortable with cross examination from lawyers and do not want to be involved when real money is involved (i.e., is on the table). On the other hand, some lawyers have told me that they prefer professors as expert witnesses when testimony is involved because we are more experienced with teaching and presenting material in a logical and straightforward way, which is at the heart of connecting with the jury. This is especially important in presenting quantitative information and results from modeling. Jury members may have trouble with models and quantitative relationships. I try to construct examples from real life experiences in clear language without jargon to help explain the results of model studies and the
ACCEPTED MANUSCRIPT 3 implications of model results to the case under consideration. For example, as part of a study to understand landslides on a river bluff you analyze changes in river flow thought to result from a
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particular project in a river floodplain that narrows the channel. You hypothesize that the channel
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narrowing caused erosion of the river bluff that led to landslides that damaged property at the top of the bluff. You model the process using a two-dimensional flow model, and the results suggest
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that unit stream power is increased by two times because of the channel constriction. Explaining
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unit stream power to a jury is difficult so, rather than only present a mathematical argument, you might further explain to the jury that the situation is analogous to placing your thumb part way
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across a flowing garden hose constricting flow and increasing the velocity of flow. The increase in velocity causes an increase in unit stream power that causes erosion of the river bluff. You
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explain that the toe of the slope at the bottom of the eroding river bluff is important because it helps protect the slope and reduces the landslide hazard. You state that when the toe of a slope is
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eroded as a result of human activity, the probability of a landslide increases. Several good sources exist in addition to the AEG mentioned above for information on being an expert witness in geomorphology. For example, in 2005, Stanley A. Schumm published an important paper on forensic geomorphology in GSA Today. When I started my work as an expert witness, I read this article because Stan Schumm happened to be one of my early mentors in the study of rivers, and I greatly respected his work. In that paper, he has a list of items he calls “helpful advice” that was provided by attorneys that he had worked with during his career. These are well worthwhile reading, and they focus on the fact that, as experts, we need to be truthful, listen carefully, and avoid jargon - among other things. Schumm pointed out that some geomorphologists are reluctant to be an expert witness because they might be made to look foolish by smart lawyers during cross examination. Schumm remarked that if the truth was really
ACCEPTED MANUSCRIPT 4 known, lawyers may be very smart but they are not generally trained in geomorphology, and they may be more afraid of the expert than the other way around. This brings me to my primary
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bit of advice concerning being an expert witness: gather your own data and come to your own conclusions. I first learned to appreciate this principle when I read a book by Shuirman and
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Slausson, published in 1992 and titled Forensic Engineering. Of all the advice I can offer, I
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believe that gathering your own data and coming to your own conclusions is by far the most
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important. Remember the days of your Ph.D. dissertation defense. Your advisor may well have told you, “You should have little to worry about because you gathered the data, analyzed it, and
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know the subject better than those who are examining you.” The same holds true in being an expert witness. If you gather your own data, come to your own conclusions and present them
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honestly and straightforwardly, then you should have little to fear under cross-examination. Another important point is to never use the data collected by the other side as part of your
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scientific argument. This is a recipe for disaster. What if their data turns out to be collected improperly or misstated? During one of my trials, the opposing expert used my data and quoted from one of my environmental geology books. The data enumerated in my book was correct, and all that the opposing attorney who was cross-examining me managed to accomplish was to increase my credibility as an expert (I had written a book). Returning to the paper by Schumm, he pointed out that you can only be questioned in deposition and trial in your area of expertise. You are qualified as an expert by education, knowledge, and experience. Furthermore, your work, including pre-trial investigations, often determines what the case will be based on. You will have absolutely nothing to fear from crossexamination if you are prepared and confident about your work. Remember that, as an expert, you are not required to give an answer to a complex question. You have the right to explain your
ACCEPTED MANUSCRIPT 5 answer in the form of an opinion—something other witnesses may not have the opportunity to do (i.e., answering the question with a yes or no may be the cross-examiner’s approach). Watch out
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for questions with a double negative such as, “is it not the case that the event is not understood?”
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Ask the lawyer questioning you to reframe the question without a double negative to avoid confusion.
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Being an expert witness requires good communication skills. When you make a
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presentation, speak clearly and avoid jargon, especially when addressing a jury. I generally try to determine which of the jury members are listening most carefully by observing their body
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language (alert and not asleep, leaning forward, etc.). As in any good lecture, I then speak to those listening carefully and get feedback as to whether or not I think they understand my
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argument. Because professors have a lot of experience in the classroom, they have an advantage in being an expert witness should the case go to trial.
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In addition to gathering your own data and coming to your own conclusions, it is also advisable to be very carefully prepared -- and remember, you can only be questioned in deposition and trial in your area of expertise. Furthermore, a difference exists between science, which is your field, and justice, as seen by a jury. What I mean by this is that you may have the science carefully worked out, and you may have gathered your own data and came to your own conclusions and explained it carefully to a jury during trial. But you may then be surprised to learn that you still might not win a judgment, even though the science is correct. The reason for this is that juries often see justice as being different from science. If a person and his property are injured, then the jury may consider it a responsibility for someone to compensate that person, even though that person may have violated common sense in their actions. This is particularly true for people who may have lost a home and may become homeless or otherwise handicapped
ACCEPTED MANUSCRIPT 6 and are otherwise unable to support themselves. Loss of their home from, say, a flood or a landslide, may sway a jury, even if the people who suffered the damage were negligent in
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building on a floodplain, bluff, or stream bank or initiated processes that facilitated a landslide
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that may have damaged their property.
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Several academic reasons exists why you might want to be an expert witness: It provides an opportunity to interact with our legal system in significant and
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important ways. This is especially true if you teach engineering or environmental geology. You will meet a variety of interesting people, ranging from other experts to
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lawyers on both sides of a case.
It is interesting work and may complement your research. Be careful with this one, as
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confidentiality issues exists in being an expert witness. Often, I make it very clear to clients that I eventually would like to use the data I gathered about their case in
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publications, if appropriate, when the case is public. I also state that any work related to the problem that I have published prior to the case remains my property to use again. Often, they will agree to this, but I recommend getting it in writing, so no future problems of conflicts of interest arise. If the client states that the material may never be used, or that you cannot use your previously published work, then you will need to make a decision concerning whether or not you wish to pursue the case.
Being an expert witness can provide experience for graduate and undergraduate students. Often, I have a team of people that work on projects with me that include graduate students who may do some fieldwork with me and work on areas such as geographic information systems. I also have utilized undergraduate students as field assistants to provide work experience for them as well.
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The experience of being an expert witness and working with students provides real world experience regarding honing communication skills and working as a team.
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More and more, as a teacher, my term projects involve teams of students who work
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together in a real world setting.
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Before talking about the actual steps and processes of being an expert witness, I want to provide some information concerning fees that an expert can charge. In general, I charge fees
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very similar to, or just a bit more than, those of local attorneys. In Southern California, this is approximately $400-$500 per hour. For graduate students at the Ph.D. level, I often pay them
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$100-$200 an hour, and master’s students receive about $100 per hour; undergraduate students earn $50 an hour. To some, these seem like very high sums. When you consider the training and
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experience necessary to be an expert witness, however, the fees we charge are simply
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commensurate with that experience, training, and knowledge. Lawyers often like a team
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approach, where the head expert supervises the team because this keeps expenses for work by other team members down. I have never gone unpaid for work as an expert witness. Sometimes, I am directly paid by the attorneys or client and sometimes by the insurance companies of the client. Payments may take months after an invoice is submitted. Pay attention to details in your invoices, and detail your work by date and time spent on work you did. You can charge for preparation for deposition (preparing exhibits or testifying during trial, travel time, waiting time in court, meetings with your team or lawyers, telephone time, and etc.). Costs for word processing, aerial photographs, maps and graphics, and other indirect costs should be listed separately. I now want to discuss the steps involved in the process of being an expert witness on a particular case. First of all, keep in mind that when you take on a case that may eventually go to
ACCEPTED MANUSCRIPT 8 court as a lawsuit, the entire process, with appeals and so forth, can take several years. Therefore, being an expert may become a long-term commitment of your time and energy. I generally
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decide not to be an expert in my small hometown of Santa Barbara. This avoids issues of
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confidentiality that may arise when meeting people involved with the case at the local grocery store. My Ph.D. advisor at Purdue, where consulting in geology and engineering geology is a
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part of the academic culture, once told me to never become involved as an expert in a case that
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was less than 50 miles from home! While at Purdue, I observed that the faculty, especially in engineering geology, often consulted, and that is why, as a graduate student, I took courses in
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engineering geology and started writing a book on environmental geology (applied geology). I got my first consulting job shortly after graduating.
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I have made exceptions to my local exclusion. Once, a lawyer argued persuasively that his client was being taken advantage by a developer who claimed that part of her property was really
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his land and was suing to take the land. The woman’s husband had recently died of brain cancer, and she did not know where to turn. We (a graduate student and I) analyzed old maps and surveys, including survey markers and landforms mentioned in the surveys, and determined, by using GPS and a geographical information system approach that the lawsuit was groundless. The lawsuit was dropped, and the woman retained her property. The expert witness jobs that I have accepted often occur following wet years in Southern California when floods and landslides are more prevalent. As a result of these natural hazards, property may be damaged, and, in some cases, human lives lost. In the months following an event, people that experienced damage begin to question why the event happened and to wonder if any activity was from other people that was partially responsible for their losses. When the parties who suffer damage contact a lawyer and initiate a legal evaluation, they are termed the
ACCEPTED MANUSCRIPT 9 plaintiffs; and those that might eventually be held responsible for the damage or become the subject of a lawsuit are termed the defendants. Generally, I first hear about a case from a lawyer
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who calls me at the university or who sends me an email asking if I am interested in working on
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a particular case. I do not solicit work as an expert witness; projects tend to come my way through word of mouth, probably from lawyers or from some of my colleagues who recommend
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me because they know I have some experience in the field.
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Following initial contact with the lawyer, a meeting may be set up in your office, his/her office, or, perhaps, in the field where the event occurred. At that point, I generally advise the
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lawyers that, for about a half of a day’s work, I can meet with them in the field and come up with a plan of action for some evaluation that may help decide whether the case looks favorable to
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their objectives or should be settled as soon as possible. Most cases do settle, as lawsuits are often a long, expensive process. You may be working for either the plaintiff or the defendant.
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Some experts tend to settle into working for either plaintiffs or defendants and do not cross over; but I have worked on both sides and see no conflicts, as my job is to determine the science of the case and what happened. For example, about 10 years ago, a lawyer contacted me concerning some landslides along the Monte Vista Bluff of the Ventura River at Oak View in southern California. He stated that he thought the landslides might be the result of floods in the early and mid -2000s that then initiated bank erosion, partly in response to the county having built a flood control levee that directed the river against the bluff. I advised the attorneys that I would meet them in the field for the prescribed half day’s work and try to come up with some sort of a research plan and evaluation if I thought a case could be made that building of the levee (Fig. 1) in 1978 was partially responsible for the flooding bank erosion and landslides (Fig. 2) that damaged his client. When I showed up, they said, “Where are your boots? Let’s get in the river
ACCEPTED MANUSCRIPT 10 and work.” I said, “No, I didn’t come here today to do detailed field work, but to examine the site, talk to the lawyers, and then come up with a research plan.” As a result of that initial
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meeting, I presented to the lawyers the objectives and goals of a potential investigation. I pointed
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out that the purpose of the plan was to communicate an outline of objectives, goals, and tasks involved in evaluating the geology and hydrology associated with river and landslide processes
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that would focus on the levee along the bank of the river that may have had a role to play. The
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questions I suggested at the time were:
What is the geologic history in changes to the river valley over the past 100,000
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years, and is that history relevant to the situation of the river today? In studies of forensic geomorphology, it is good advice to start from an historical perspective and
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gather all available maps, aerial photos, and images from as far back as possible so that the site may be put into an historical context. What is the history of the river near the bluffs that eroded during the past half-
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century?
How have the eroding bluffs in the last half-century changed with respect to slope stability and riparian forest cover?
How have engineering structures, such as levees to control floods, affected bank erosion and landsliding across the river from the levee structures?
What is the distribution and size of landslides on the river bluffs that caused the damage to the client’s property?
The above steps essentially outlined a research plan, and a decision could then be made concerning the best way to go forward. The next step was then to put together a research team. Projects that involve a lot of property and property damage will probably have several people
ACCEPTED MANUSCRIPT 11 working on your team. The primary members of the research team included a geologist to map the landslides, and a hydrologist to do some modeling of river flow before and after flood control
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structures were constructed. I often also need an expert in geographic information systems, a
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person to transcribe tapes (my writing is done with a tape recorder), and an illustrator to help prepare illustrations for exhibits, perhaps using a PowerPoint presentation.
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The next step is the research itself, and this begins with the formulation of hypotheses and
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testing them to try to better understand why the particular event occurred. With respect to the above example of bluff erosion, one of the hypotheses was that building of the levee so restricted
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the river that stream power increased significantly, placing stress against the bluff that initiated the landslide. But it was more complicated than that. The case (Aikens v. County of Ventura,
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California) from start to finish lasted about a decade. We will discuss the case in more detail to briefly illustrate some of the science we did as part of the fact-finding research.
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Geologic history of the river valley was important scientific evidence in the case. The river valley at the site has naturally migrated about 3 km to the west during the past 100 ky owing to active uplift, folding, and tilting (Rockwell et al. 1984). The age of the bluff top at Monte Vista is about 40 ka.The Devil's Gulch fault (discovered by Keller in the 1970s) is a south side up fault pushing the bluffs up when displacement occurs. A valuable discovery that turned out to be very significant was the historical record from aerial photographs and topographic maps. The USGS 1904 (Fig. 3) topographic map (U.S. Geological Survey, 1904) clearly indicated that the river at that time was much closer to the west side of the valley and not adjacent to the bluffs at Monte Vista (the judge in the case cited this evidence as significant in his decision). A series of aerial photographs from 1973 to 1999 showed the toe of the bluffs were protected by vegetation that included mature trees.
ACCEPTED MANUSCRIPT 12 Inappropriate development was allowed on the floodplain on the western side (Live Oak Acres) of the river. Development (buildings and roads) was the first step that led to the property
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damage from landslides for Monte Vista homes at the top of the bluff. If floodplain development
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had not occurred, the river likely would have remained more stable on the east bank as flooding naturally occupied the wide floodplain on the west. Flood protection on the west side of the river
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across from the bluffs began early and increased with time, probably because of pressure from
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floodplain residences.
A series of floods since the 1930s led to construction of the flood defense (levee) that
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restricted floodplain width and forced the river in 2005 against the east bank (along the northern two-thirds of the bluff-top development) where it has not been in decades or longer. Since 1933,
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the six largest floods have occurred since 1969. The largest was in 1978, followed by 1969. Average return period was about 37 and 74 years, respectively. The floods in 1992 and 1995
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were larger than 2005, but not by much. The flood of 2005 was a moderate event with average return period of about 15 years
I argued during the case that building on an active floodplain is folly. This is recognized by flood agencies around the world. More and larger flood control is necessary as development on floodplains increases. Flood control structures change the river form and process. Levees that constrict river width increase unit stream power that can initiate erosion of unprotected river banks. A report by the Ventura County Flood Control District (Ventura County Flood Control District, 1969) stated that the Ventura River in 1969 broke through its banks into the community of Live Oak Acres. The report also stated that one of the major lessons learned from the 1969 flood was the “vital need to curb restrictive encroachments on the flood plain through adoption of flood plain regulations by ordinance” -- this was not done! Instead a levee was built following
ACCEPTED MANUSCRIPT 13 the flood in 1978. I emphasized during the trial that the effect of constructing the levee narrowed the floodway that by example was equivalent of placing your thumb over a hose opening.
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Narrowing of a stream channel increases the unit stream power and therefore the potential to
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erode the channel banks and bluffs (Fig. 4). Calculations of unit stream power using HEC-RAS (see for example, Song et al., 2014) by Professor Hugo Loaiciga, member of our research team
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(Loaiciga, personal written communication, 2008), and the author concluded that Unit stream
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power in 2005 against the bluff at Monte Vista across from the levee at Live Oak Acres was about 800 W/m2 -- sufficient using Costa (1983) to move boulders up to about 1000 mm in
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diameter. By comparison, the unit stream power just upstream of the levee against the eastern bank of the river was about 115 W/m2) -- sufficient to move particles of about 200 mm diameter
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(Costa, 1983). I concluded that the Ventura River flood of 10 January, 2005 had sufficient power to erode and transport very large particles through the river section across from the central part of
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the levee compared to the upstream end of the levee. In the end, insufficient attention was given to protecting the east bank and bluff. As a result, long established trees were eroded and removed by flood water. Removal of soil at the base of the bluff (Fig. 5) decreased the stability of the bluff, and landslides occurred. The case hinged on the scientific discoveries and hydrologic evaluation that documented the history and hydrologic processes that eventually led to the erosion and landslides on the bluffs that damaged property. A jury tried the remaining issue of damages. The jury returned a verdict awarding Homeowners damages totaling $2,368,125. The court awarded Homeowners attorney fees of $1,168,750, plus costs and expert witness fees of $155,000, plus prejudgment interest of $447,687.76 through 1 December, 2009. Expert fees were only about 3% of the total amount.
ACCEPTED MANUSCRIPT 14 Live Oak Acres today is a large community of hundreds of homes and other buildings on the historical floodplain of the Ventura River. The community is defended by a levee. The county
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has constructed several groins below the bluffs across the river to help eliminate or at least
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reduce future erosion of the toe of the bluff. The river is more in the central part of the floodplain; but the river corridor remains narrow, and flood and bluff erosion hazards remain.
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The investigation part of the work may take anywhere from several months to perhaps a
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year or more. During that time, the case may ebb and flow as to whether a settlement will occur or not, and you may be instructed at any time to stop the work if the case is settled. Most cases
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generally do reach a settlement, and it is rather unusual for a case to actually be tried by a jury or, in some cases, be tried by a judge. The next step in moving forward is deposition, which is a
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fact-finding process that involves declaring all evidence. Opposing attorneys will depose you; this is a formal procedure in which you are under oath, just as if you were in court. The opposing
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attorneys pay your fees during deposition. Often, they bring a check to deposition, and you will have to be careful with this, as they may have planned for two hours, and you may be there for four hours, so you will need to bill them for additional time. The deposition, as I mentioned, is a formal testimony (under oath), and you present your case, often using exhibits, and someone will be recording every word that you say. It is amazing in this day and time that they still have stenographers that transcribe your testimony on a shorthand machine and then prepare the depositional statements, along with a summary of your exhibits, and send them for you to look over and edit, as necessary. An important thing to keep in mind during deposition is that, even during your breaks and lunch hour, you are on. That is, the opposing attorney, after returning from the lunch break, may ask you, “Did you discuss him or her and what did you say?” or “Did you discuss the case, and what did you say?” As a result, when you go on breaks or to lunch, it is
ACCEPTED MANUSCRIPT 15 best to say nothing about the case. The opposing attorney that deposes you may not even be the same attorney that you will meet at cross-examination during the trial. Discussions during a
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deposition can, of course, become heated at times. Simply remember you will be held
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accountable for any statements you make in deposition, so keep a clear head and enjoy the intellectual give and take.
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If a case does go to trial, you will be called as a witness and be subject to cross-
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examination. When I asked one of my colleagues who was on the opposing side how he enjoyed his first experience of being an expert, he replied, “It was like pulling teeth.” In other words,
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being cross-examined is not for everyone. I actually like the experience because I like the give and take and the opportunity to explain science to attorneys, the judge, and the jury. Remember,
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if you have done your work correctly, and if you have gathered your own data and come to your own conclusions, then cross-examination should not be difficult. You have the depositional
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statements that are the core of the cross-examination and your testimony. You are not allowed to bring new information to the court during the trial process. The purpose of the depositions is for the attorneys to look at the evidence and decide what their future courses should be; that is, should they settle or not?
At this point, I should mention issues related to your attorney and the clients they represent. The attorney you are working with might come to you with new information such as a photograph you have not seen before on the day of your court testimony. Be reluctant to use this new information without court approval! That information should have come with the factfinding part of the case, and you can rest assured that, under cross-examination, the opposing attorney will ask you where the photographs came from and how you got them and why they were not presented with the deposition material. Similarly, the client might have particular goals
ACCEPTED MANUSCRIPT 16 and objectives and state facts they would like you to present. Remember, it is your job to present the science in an honest and straightforward way, regardless of consequences. This issue of what
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information you may use in court becomes important if you want to maintain your credibility as
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an expert. This does not mean that the client and the lawyers may not express opinions early in the case that would affect your decisions concerning the research plan and hypotheses to be
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tested.
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Following the trial, a verdict may be rendered, but that may not be the end of the case! Appeals may go on for several years. During the appeal process, you may be asked to gather
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additional information. For example, if you are an expert for the defendants and the case is found for the plaintiffs, some of the consequences may need to be delineated in terms of the science of
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the case, and you may be called upon to assist in this endeavor. The total cost of cases concerning floods and landslides may be in terms of millions of dollars of damages, and the fees
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from expert teams are often just a few percentage of total cost or losses. In summary, being an expert witness provides real world experience that is important in teaching engineering, geology, and environmental geology. Students are particularly attentive to these subjects when it comes to considering the kinds of jobs they may obtain upon graduation; those may include being a consulting geomorphologist and, eventually, an expert witness. Students are often surprised at how the legal system actually works, and you can help them in this regard through explanations of what it means to be a scientist and to gather your own data, come to your own conclusions, and be completely truthful. Often, lawyers you work with will be unhappy if your evaluation suggests that the client you represent as the defendant actually did something to the landscape or process that had a role to play in the flood or landslide. It has been my experience that if something has actually been done, such as building a
ACCEPTED MANUSCRIPT 17 levee, infringing upon a floodplain, or modifying a flood during the event, then the person doing the modification may take on that responsibility and liability. In legal terms, exposure exists, in
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which case it is still your job to do the best science you can and come to the best conclusions you
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can that may help delineate the exposure and liability of your client. In some cases, your investigation may actually lead to the hypothesis that the plaintiff initiated activities that may
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have been more important in causing the event than did those of your client.
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References
Association of Engineering Geologists. 1993. Professional Practice Handbook 3rd ed.
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http://www.aegweb.org/docs/publications/aegpph.pdf Costa, J.E., 1983. Paleohydraulic reconstruction of flash-flood peaks from boulder deposits in
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the Colorado Front Range, Geol. Soc. Am. Bull: 94, 986-1004.
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Rockwell, T.K., Keller, E.A., M.N. Clark, Johnson, D.L.1984. Chronology and Rates of Faulting of Ventura River Terraces, California. Geol. Soc. Am. Bull 95: 1466-1474.
Schumm, S. A. 2005.Forensic geomorphology. Geol. Soc. Am. Geology Today, December, 4243.
Shuirman.G. and Slosson, J.E. 1992. Forensic engineering. Academic Press, San Diego, CA. 296p. Song, S. Schmalz.B, and Fohrer, N. 2014.Simulation and comparison of stream power in-chnnel and on the floodplain in a German lowland area. J Hydrol. Hydromech 62: 133-144.
U.S. Geologic Survey. 1904. 15-minuteTopographic Map,Ventura Quadrangle, California.
ACCEPTED MANUSCRIPT 18 Ventura County Flood Control District1.969.The great floods of 1969. Ventura, California, September.
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Figure Captions Fig. 1. Levee constructed in 1978 that protects Live Oak Acres greatly reduced width of the Ventura River, forcing the river east to the bluffs below Monte Vista. The toe of the bluff was eroded during the 2005 flood. Photograph taken in 2006.
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Fig. 2. Landslides on the bluff below homes in Monte Verde. Photograph taken in 2006.
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Fig. 3. Position of the Ventura River in 2002 ( source: U.S. Geological Survey topographic map of 2004 (Ventura Quad 15 minute). Notice the river is about 400 m from the bluffs.
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Fig. 4. Relative unit stream power upstream, adjacent, and downstream from the levee. LOA is Live Oak Acres. See text for further discussion. Google Earth image of 2006.
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Fig. 5. Upstream view of the Ventura River from the bluff top at Monte Verde in 2006. The three trees in the river bottom are all that remain in this location after erosion of the toe of the bluff. Levee protecting Live Oak Acres is visible across the river channel.
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S0169-555X(14)00581-9 doi: 10.1016/j.geomorph.2014.12.001 GEOMOR 4992
To appear in:
Geomorphology
Received date: Revised date: Accepted date:
12 September 2014 2 December 2014 2 December 2014
Please cite this article as: Keller, Edward A., Being an expert witness in geomorphology, Geomorphology (2014), doi: 10.1016/j.geomorph.2014.12.001
This is a PDF file of an unedited manuscript that has been accepted for publication. As a service to our customers we are providing this early version of the manuscript. The manuscript will undergo copyediting, typesetting, and review of the resulting proof before it is published in its final form. Please note that during the production process errors may be discovered which could affect the content, and all legal disclaimers that apply to the journal pertain.
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Being an expert witness in geomorphology
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Edward A. Keller*
93106,USA
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*Tel.: +1 805 448 0092; E-mail: [email protected].
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Department of Earth Science, University of California, Santa Barbara, Santa Barbara, CA
Lawyers often refer to their expert witnesses as hired guns, but it is much more than that.
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Actually, it is more like looking for smoking guns that scientifically link an event, such as a landslide, flood, or wildfire, to possible causes of the event. I say causes because triggers, such
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as high magnitude storms or earthquakes, may be the immediate cause of a landslide, but the real cause may be steep slopes, prolonged intense precipitation, or a high water table that has been
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rising for years. A real cause might also involve, to a lesser or greater extent, the hand of people, such as change in land use (vegetation management, artificial addition of water, or excavating the toe of a slope. Lawsuits happen because someone claims damage as a result of another’s actions, i.e., the hand of people. The person or persons damaged are the plaintiffs, and the person or persons that are sued are the defendants. Either side may hire you, but your job is the same either way -- determine the scientific basis of the case and explain your scientific reasoning to the lawyers, the judge, and the jury. This essay focuses on my personal experience and relevancy as an academic, teaching and conducting research and public service at a university and occasionally being an expert witness, rather than being an expert witness and working for a geotechnical or environmental company. This is a nuts and bolts essay of discussion and advice. This is not intended as a
ACCEPTED MANUSCRIPT 2 complete guide for being an expert witness. You can learn much more from the 1993 Professional Practice Handbook of the Association of Engineering Geologists (AEG), 3rd ed.
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I have been asked if a license is required to be an expert witness. I do not know about all
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states, but a license is not required in California. The court and a judge decide if a person is qualified to be an expert. Qualification is based on education, experience, and publications. An
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opposing attorney once questioned some part of my qualifications when I was working on a case
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involving an agricultural-related flood with water flowing in irrigation channels, pipes, and culverts. The opposing attorney said I was not qualified to work on water in pipes, but the judge
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ruled that I was an expert on the flow of water in channels and that covered pipes as well. Concerning the license, I decided years ago that I did not want a license because I did not want to
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compete with the students I train in Engineering Geology. Many of my former students went on to earn a license and have become successful consulting geologists.
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I have been an expert witness in a variety of settings over a period of about 20 years and have had the opportunity to work with several lawyers. Sometimes, when I discuss being an expert witness with my colleagues at meetings and so forth, I have noticed some reservation on their part because they are uncomfortable with cross examination from lawyers and do not want to be involved when real money is involved (i.e., is on the table). On the other hand, some lawyers have told me that they prefer professors as expert witnesses when testimony is involved because we are more experienced with teaching and presenting material in a logical and straightforward way, which is at the heart of connecting with the jury. This is especially important in presenting quantitative information and results from modeling. Jury members may have trouble with models and quantitative relationships. I try to construct examples from real life experiences in clear language without jargon to help explain the results of model studies and the
ACCEPTED MANUSCRIPT 3 implications of model results to the case under consideration. For example, as part of a study to understand landslides on a river bluff you analyze changes in river flow thought to result from a
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particular project in a river floodplain that narrows the channel. You hypothesize that the channel
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narrowing caused erosion of the river bluff that led to landslides that damaged property at the top of the bluff. You model the process using a two-dimensional flow model, and the results suggest
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that unit stream power is increased by two times because of the channel constriction. Explaining
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unit stream power to a jury is difficult so, rather than only present a mathematical argument, you might further explain to the jury that the situation is analogous to placing your thumb part way
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across a flowing garden hose constricting flow and increasing the velocity of flow. The increase in velocity causes an increase in unit stream power that causes erosion of the river bluff. You
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explain that the toe of the slope at the bottom of the eroding river bluff is important because it helps protect the slope and reduces the landslide hazard. You state that when the toe of a slope is
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eroded as a result of human activity, the probability of a landslide increases. Several good sources exist in addition to the AEG mentioned above for information on being an expert witness in geomorphology. For example, in 2005, Stanley A. Schumm published an important paper on forensic geomorphology in GSA Today. When I started my work as an expert witness, I read this article because Stan Schumm happened to be one of my early mentors in the study of rivers, and I greatly respected his work. In that paper, he has a list of items he calls “helpful advice” that was provided by attorneys that he had worked with during his career. These are well worthwhile reading, and they focus on the fact that, as experts, we need to be truthful, listen carefully, and avoid jargon - among other things. Schumm pointed out that some geomorphologists are reluctant to be an expert witness because they might be made to look foolish by smart lawyers during cross examination. Schumm remarked that if the truth was really
ACCEPTED MANUSCRIPT 4 known, lawyers may be very smart but they are not generally trained in geomorphology, and they may be more afraid of the expert than the other way around. This brings me to my primary
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bit of advice concerning being an expert witness: gather your own data and come to your own conclusions. I first learned to appreciate this principle when I read a book by Shuirman and
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Slausson, published in 1992 and titled Forensic Engineering. Of all the advice I can offer, I
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believe that gathering your own data and coming to your own conclusions is by far the most
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important. Remember the days of your Ph.D. dissertation defense. Your advisor may well have told you, “You should have little to worry about because you gathered the data, analyzed it, and
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know the subject better than those who are examining you.” The same holds true in being an expert witness. If you gather your own data, come to your own conclusions and present them
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honestly and straightforwardly, then you should have little to fear under cross-examination. Another important point is to never use the data collected by the other side as part of your
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scientific argument. This is a recipe for disaster. What if their data turns out to be collected improperly or misstated? During one of my trials, the opposing expert used my data and quoted from one of my environmental geology books. The data enumerated in my book was correct, and all that the opposing attorney who was cross-examining me managed to accomplish was to increase my credibility as an expert (I had written a book). Returning to the paper by Schumm, he pointed out that you can only be questioned in deposition and trial in your area of expertise. You are qualified as an expert by education, knowledge, and experience. Furthermore, your work, including pre-trial investigations, often determines what the case will be based on. You will have absolutely nothing to fear from crossexamination if you are prepared and confident about your work. Remember that, as an expert, you are not required to give an answer to a complex question. You have the right to explain your
ACCEPTED MANUSCRIPT 5 answer in the form of an opinion—something other witnesses may not have the opportunity to do (i.e., answering the question with a yes or no may be the cross-examiner’s approach). Watch out
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for questions with a double negative such as, “is it not the case that the event is not understood?”
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Ask the lawyer questioning you to reframe the question without a double negative to avoid confusion.
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Being an expert witness requires good communication skills. When you make a
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presentation, speak clearly and avoid jargon, especially when addressing a jury. I generally try to determine which of the jury members are listening most carefully by observing their body
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language (alert and not asleep, leaning forward, etc.). As in any good lecture, I then speak to those listening carefully and get feedback as to whether or not I think they understand my
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argument. Because professors have a lot of experience in the classroom, they have an advantage in being an expert witness should the case go to trial.
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In addition to gathering your own data and coming to your own conclusions, it is also advisable to be very carefully prepared -- and remember, you can only be questioned in deposition and trial in your area of expertise. Furthermore, a difference exists between science, which is your field, and justice, as seen by a jury. What I mean by this is that you may have the science carefully worked out, and you may have gathered your own data and came to your own conclusions and explained it carefully to a jury during trial. But you may then be surprised to learn that you still might not win a judgment, even though the science is correct. The reason for this is that juries often see justice as being different from science. If a person and his property are injured, then the jury may consider it a responsibility for someone to compensate that person, even though that person may have violated common sense in their actions. This is particularly true for people who may have lost a home and may become homeless or otherwise handicapped
ACCEPTED MANUSCRIPT 6 and are otherwise unable to support themselves. Loss of their home from, say, a flood or a landslide, may sway a jury, even if the people who suffered the damage were negligent in
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building on a floodplain, bluff, or stream bank or initiated processes that facilitated a landslide
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that may have damaged their property.
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Several academic reasons exists why you might want to be an expert witness: It provides an opportunity to interact with our legal system in significant and
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important ways. This is especially true if you teach engineering or environmental geology. You will meet a variety of interesting people, ranging from other experts to
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lawyers on both sides of a case.
It is interesting work and may complement your research. Be careful with this one, as
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confidentiality issues exists in being an expert witness. Often, I make it very clear to clients that I eventually would like to use the data I gathered about their case in
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publications, if appropriate, when the case is public. I also state that any work related to the problem that I have published prior to the case remains my property to use again. Often, they will agree to this, but I recommend getting it in writing, so no future problems of conflicts of interest arise. If the client states that the material may never be used, or that you cannot use your previously published work, then you will need to make a decision concerning whether or not you wish to pursue the case.
Being an expert witness can provide experience for graduate and undergraduate students. Often, I have a team of people that work on projects with me that include graduate students who may do some fieldwork with me and work on areas such as geographic information systems. I also have utilized undergraduate students as field assistants to provide work experience for them as well.
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The experience of being an expert witness and working with students provides real world experience regarding honing communication skills and working as a team.
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More and more, as a teacher, my term projects involve teams of students who work
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together in a real world setting.
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Before talking about the actual steps and processes of being an expert witness, I want to provide some information concerning fees that an expert can charge. In general, I charge fees
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very similar to, or just a bit more than, those of local attorneys. In Southern California, this is approximately $400-$500 per hour. For graduate students at the Ph.D. level, I often pay them
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$100-$200 an hour, and master’s students receive about $100 per hour; undergraduate students earn $50 an hour. To some, these seem like very high sums. When you consider the training and
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experience necessary to be an expert witness, however, the fees we charge are simply
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commensurate with that experience, training, and knowledge. Lawyers often like a team
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approach, where the head expert supervises the team because this keeps expenses for work by other team members down. I have never gone unpaid for work as an expert witness. Sometimes, I am directly paid by the attorneys or client and sometimes by the insurance companies of the client. Payments may take months after an invoice is submitted. Pay attention to details in your invoices, and detail your work by date and time spent on work you did. You can charge for preparation for deposition (preparing exhibits or testifying during trial, travel time, waiting time in court, meetings with your team or lawyers, telephone time, and etc.). Costs for word processing, aerial photographs, maps and graphics, and other indirect costs should be listed separately. I now want to discuss the steps involved in the process of being an expert witness on a particular case. First of all, keep in mind that when you take on a case that may eventually go to
ACCEPTED MANUSCRIPT 8 court as a lawsuit, the entire process, with appeals and so forth, can take several years. Therefore, being an expert may become a long-term commitment of your time and energy. I generally
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decide not to be an expert in my small hometown of Santa Barbara. This avoids issues of
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confidentiality that may arise when meeting people involved with the case at the local grocery store. My Ph.D. advisor at Purdue, where consulting in geology and engineering geology is a
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part of the academic culture, once told me to never become involved as an expert in a case that
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was less than 50 miles from home! While at Purdue, I observed that the faculty, especially in engineering geology, often consulted, and that is why, as a graduate student, I took courses in
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engineering geology and started writing a book on environmental geology (applied geology). I got my first consulting job shortly after graduating.
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I have made exceptions to my local exclusion. Once, a lawyer argued persuasively that his client was being taken advantage by a developer who claimed that part of her property was really
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his land and was suing to take the land. The woman’s husband had recently died of brain cancer, and she did not know where to turn. We (a graduate student and I) analyzed old maps and surveys, including survey markers and landforms mentioned in the surveys, and determined, by using GPS and a geographical information system approach that the lawsuit was groundless. The lawsuit was dropped, and the woman retained her property. The expert witness jobs that I have accepted often occur following wet years in Southern California when floods and landslides are more prevalent. As a result of these natural hazards, property may be damaged, and, in some cases, human lives lost. In the months following an event, people that experienced damage begin to question why the event happened and to wonder if any activity was from other people that was partially responsible for their losses. When the parties who suffer damage contact a lawyer and initiate a legal evaluation, they are termed the
ACCEPTED MANUSCRIPT 9 plaintiffs; and those that might eventually be held responsible for the damage or become the subject of a lawsuit are termed the defendants. Generally, I first hear about a case from a lawyer
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who calls me at the university or who sends me an email asking if I am interested in working on
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a particular case. I do not solicit work as an expert witness; projects tend to come my way through word of mouth, probably from lawyers or from some of my colleagues who recommend
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me because they know I have some experience in the field.
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Following initial contact with the lawyer, a meeting may be set up in your office, his/her office, or, perhaps, in the field where the event occurred. At that point, I generally advise the
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lawyers that, for about a half of a day’s work, I can meet with them in the field and come up with a plan of action for some evaluation that may help decide whether the case looks favorable to
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their objectives or should be settled as soon as possible. Most cases do settle, as lawsuits are often a long, expensive process. You may be working for either the plaintiff or the defendant.
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Some experts tend to settle into working for either plaintiffs or defendants and do not cross over; but I have worked on both sides and see no conflicts, as my job is to determine the science of the case and what happened. For example, about 10 years ago, a lawyer contacted me concerning some landslides along the Monte Vista Bluff of the Ventura River at Oak View in southern California. He stated that he thought the landslides might be the result of floods in the early and mid -2000s that then initiated bank erosion, partly in response to the county having built a flood control levee that directed the river against the bluff. I advised the attorneys that I would meet them in the field for the prescribed half day’s work and try to come up with some sort of a research plan and evaluation if I thought a case could be made that building of the levee (Fig. 1) in 1978 was partially responsible for the flooding bank erosion and landslides (Fig. 2) that damaged his client. When I showed up, they said, “Where are your boots? Let’s get in the river
ACCEPTED MANUSCRIPT 10 and work.” I said, “No, I didn’t come here today to do detailed field work, but to examine the site, talk to the lawyers, and then come up with a research plan.” As a result of that initial
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meeting, I presented to the lawyers the objectives and goals of a potential investigation. I pointed
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out that the purpose of the plan was to communicate an outline of objectives, goals, and tasks involved in evaluating the geology and hydrology associated with river and landslide processes
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that would focus on the levee along the bank of the river that may have had a role to play. The
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questions I suggested at the time were:
What is the geologic history in changes to the river valley over the past 100,000
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years, and is that history relevant to the situation of the river today? In studies of forensic geomorphology, it is good advice to start from an historical perspective and
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gather all available maps, aerial photos, and images from as far back as possible so that the site may be put into an historical context. What is the history of the river near the bluffs that eroded during the past half-
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century?
How have the eroding bluffs in the last half-century changed with respect to slope stability and riparian forest cover?
How have engineering structures, such as levees to control floods, affected bank erosion and landsliding across the river from the levee structures?
What is the distribution and size of landslides on the river bluffs that caused the damage to the client’s property?
The above steps essentially outlined a research plan, and a decision could then be made concerning the best way to go forward. The next step was then to put together a research team. Projects that involve a lot of property and property damage will probably have several people
ACCEPTED MANUSCRIPT 11 working on your team. The primary members of the research team included a geologist to map the landslides, and a hydrologist to do some modeling of river flow before and after flood control
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structures were constructed. I often also need an expert in geographic information systems, a
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person to transcribe tapes (my writing is done with a tape recorder), and an illustrator to help prepare illustrations for exhibits, perhaps using a PowerPoint presentation.
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The next step is the research itself, and this begins with the formulation of hypotheses and
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testing them to try to better understand why the particular event occurred. With respect to the above example of bluff erosion, one of the hypotheses was that building of the levee so restricted
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the river that stream power increased significantly, placing stress against the bluff that initiated the landslide. But it was more complicated than that. The case (Aikens v. County of Ventura,
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California) from start to finish lasted about a decade. We will discuss the case in more detail to briefly illustrate some of the science we did as part of the fact-finding research.
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Geologic history of the river valley was important scientific evidence in the case. The river valley at the site has naturally migrated about 3 km to the west during the past 100 ky owing to active uplift, folding, and tilting (Rockwell et al. 1984). The age of the bluff top at Monte Vista is about 40 ka.The Devil's Gulch fault (discovered by Keller in the 1970s) is a south side up fault pushing the bluffs up when displacement occurs. A valuable discovery that turned out to be very significant was the historical record from aerial photographs and topographic maps. The USGS 1904 (Fig. 3) topographic map (U.S. Geological Survey, 1904) clearly indicated that the river at that time was much closer to the west side of the valley and not adjacent to the bluffs at Monte Vista (the judge in the case cited this evidence as significant in his decision). A series of aerial photographs from 1973 to 1999 showed the toe of the bluffs were protected by vegetation that included mature trees.
ACCEPTED MANUSCRIPT 12 Inappropriate development was allowed on the floodplain on the western side (Live Oak Acres) of the river. Development (buildings and roads) was the first step that led to the property
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damage from landslides for Monte Vista homes at the top of the bluff. If floodplain development
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had not occurred, the river likely would have remained more stable on the east bank as flooding naturally occupied the wide floodplain on the west. Flood protection on the west side of the river
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across from the bluffs began early and increased with time, probably because of pressure from
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floodplain residences.
A series of floods since the 1930s led to construction of the flood defense (levee) that
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restricted floodplain width and forced the river in 2005 against the east bank (along the northern two-thirds of the bluff-top development) where it has not been in decades or longer. Since 1933,
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the six largest floods have occurred since 1969. The largest was in 1978, followed by 1969. Average return period was about 37 and 74 years, respectively. The floods in 1992 and 1995
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were larger than 2005, but not by much. The flood of 2005 was a moderate event with average return period of about 15 years
I argued during the case that building on an active floodplain is folly. This is recognized by flood agencies around the world. More and larger flood control is necessary as development on floodplains increases. Flood control structures change the river form and process. Levees that constrict river width increase unit stream power that can initiate erosion of unprotected river banks. A report by the Ventura County Flood Control District (Ventura County Flood Control District, 1969) stated that the Ventura River in 1969 broke through its banks into the community of Live Oak Acres. The report also stated that one of the major lessons learned from the 1969 flood was the “vital need to curb restrictive encroachments on the flood plain through adoption of flood plain regulations by ordinance” -- this was not done! Instead a levee was built following
ACCEPTED MANUSCRIPT 13 the flood in 1978. I emphasized during the trial that the effect of constructing the levee narrowed the floodway that by example was equivalent of placing your thumb over a hose opening.
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Narrowing of a stream channel increases the unit stream power and therefore the potential to
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erode the channel banks and bluffs (Fig. 4). Calculations of unit stream power using HEC-RAS (see for example, Song et al., 2014) by Professor Hugo Loaiciga, member of our research team
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(Loaiciga, personal written communication, 2008), and the author concluded that Unit stream
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power in 2005 against the bluff at Monte Vista across from the levee at Live Oak Acres was about 800 W/m2 -- sufficient using Costa (1983) to move boulders up to about 1000 mm in
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diameter. By comparison, the unit stream power just upstream of the levee against the eastern bank of the river was about 115 W/m2) -- sufficient to move particles of about 200 mm diameter
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(Costa, 1983). I concluded that the Ventura River flood of 10 January, 2005 had sufficient power to erode and transport very large particles through the river section across from the central part of
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the levee compared to the upstream end of the levee. In the end, insufficient attention was given to protecting the east bank and bluff. As a result, long established trees were eroded and removed by flood water. Removal of soil at the base of the bluff (Fig. 5) decreased the stability of the bluff, and landslides occurred. The case hinged on the scientific discoveries and hydrologic evaluation that documented the history and hydrologic processes that eventually led to the erosion and landslides on the bluffs that damaged property. A jury tried the remaining issue of damages. The jury returned a verdict awarding Homeowners damages totaling $2,368,125. The court awarded Homeowners attorney fees of $1,168,750, plus costs and expert witness fees of $155,000, plus prejudgment interest of $447,687.76 through 1 December, 2009. Expert fees were only about 3% of the total amount.
ACCEPTED MANUSCRIPT 14 Live Oak Acres today is a large community of hundreds of homes and other buildings on the historical floodplain of the Ventura River. The community is defended by a levee. The county
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has constructed several groins below the bluffs across the river to help eliminate or at least
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reduce future erosion of the toe of the bluff. The river is more in the central part of the floodplain; but the river corridor remains narrow, and flood and bluff erosion hazards remain.
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The investigation part of the work may take anywhere from several months to perhaps a
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year or more. During that time, the case may ebb and flow as to whether a settlement will occur or not, and you may be instructed at any time to stop the work if the case is settled. Most cases
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generally do reach a settlement, and it is rather unusual for a case to actually be tried by a jury or, in some cases, be tried by a judge. The next step in moving forward is deposition, which is a
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fact-finding process that involves declaring all evidence. Opposing attorneys will depose you; this is a formal procedure in which you are under oath, just as if you were in court. The opposing
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attorneys pay your fees during deposition. Often, they bring a check to deposition, and you will have to be careful with this, as they may have planned for two hours, and you may be there for four hours, so you will need to bill them for additional time. The deposition, as I mentioned, is a formal testimony (under oath), and you present your case, often using exhibits, and someone will be recording every word that you say. It is amazing in this day and time that they still have stenographers that transcribe your testimony on a shorthand machine and then prepare the depositional statements, along with a summary of your exhibits, and send them for you to look over and edit, as necessary. An important thing to keep in mind during deposition is that, even during your breaks and lunch hour, you are on. That is, the opposing attorney, after returning from the lunch break, may ask you, “Did you discuss him or her and what did you say?” or “Did you discuss the case, and what did you say?” As a result, when you go on breaks or to lunch, it is
ACCEPTED MANUSCRIPT 15 best to say nothing about the case. The opposing attorney that deposes you may not even be the same attorney that you will meet at cross-examination during the trial. Discussions during a
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deposition can, of course, become heated at times. Simply remember you will be held
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accountable for any statements you make in deposition, so keep a clear head and enjoy the intellectual give and take.
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If a case does go to trial, you will be called as a witness and be subject to cross-
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examination. When I asked one of my colleagues who was on the opposing side how he enjoyed his first experience of being an expert, he replied, “It was like pulling teeth.” In other words,
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being cross-examined is not for everyone. I actually like the experience because I like the give and take and the opportunity to explain science to attorneys, the judge, and the jury. Remember,
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if you have done your work correctly, and if you have gathered your own data and come to your own conclusions, then cross-examination should not be difficult. You have the depositional
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statements that are the core of the cross-examination and your testimony. You are not allowed to bring new information to the court during the trial process. The purpose of the depositions is for the attorneys to look at the evidence and decide what their future courses should be; that is, should they settle or not?
At this point, I should mention issues related to your attorney and the clients they represent. The attorney you are working with might come to you with new information such as a photograph you have not seen before on the day of your court testimony. Be reluctant to use this new information without court approval! That information should have come with the factfinding part of the case, and you can rest assured that, under cross-examination, the opposing attorney will ask you where the photographs came from and how you got them and why they were not presented with the deposition material. Similarly, the client might have particular goals
ACCEPTED MANUSCRIPT 16 and objectives and state facts they would like you to present. Remember, it is your job to present the science in an honest and straightforward way, regardless of consequences. This issue of what
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information you may use in court becomes important if you want to maintain your credibility as
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an expert. This does not mean that the client and the lawyers may not express opinions early in the case that would affect your decisions concerning the research plan and hypotheses to be
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tested.
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Following the trial, a verdict may be rendered, but that may not be the end of the case! Appeals may go on for several years. During the appeal process, you may be asked to gather
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additional information. For example, if you are an expert for the defendants and the case is found for the plaintiffs, some of the consequences may need to be delineated in terms of the science of
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the case, and you may be called upon to assist in this endeavor. The total cost of cases concerning floods and landslides may be in terms of millions of dollars of damages, and the fees
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from expert teams are often just a few percentage of total cost or losses. In summary, being an expert witness provides real world experience that is important in teaching engineering, geology, and environmental geology. Students are particularly attentive to these subjects when it comes to considering the kinds of jobs they may obtain upon graduation; those may include being a consulting geomorphologist and, eventually, an expert witness. Students are often surprised at how the legal system actually works, and you can help them in this regard through explanations of what it means to be a scientist and to gather your own data, come to your own conclusions, and be completely truthful. Often, lawyers you work with will be unhappy if your evaluation suggests that the client you represent as the defendant actually did something to the landscape or process that had a role to play in the flood or landslide. It has been my experience that if something has actually been done, such as building a
ACCEPTED MANUSCRIPT 17 levee, infringing upon a floodplain, or modifying a flood during the event, then the person doing the modification may take on that responsibility and liability. In legal terms, exposure exists, in
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which case it is still your job to do the best science you can and come to the best conclusions you
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can that may help delineate the exposure and liability of your client. In some cases, your investigation may actually lead to the hypothesis that the plaintiff initiated activities that may
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have been more important in causing the event than did those of your client.
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References
Association of Engineering Geologists. 1993. Professional Practice Handbook 3rd ed.
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http://www.aegweb.org/docs/publications/aegpph.pdf Costa, J.E., 1983. Paleohydraulic reconstruction of flash-flood peaks from boulder deposits in
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the Colorado Front Range, Geol. Soc. Am. Bull: 94, 986-1004.
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Rockwell, T.K., Keller, E.A., M.N. Clark, Johnson, D.L.1984. Chronology and Rates of Faulting of Ventura River Terraces, California. Geol. Soc. Am. Bull 95: 1466-1474.
Schumm, S. A. 2005.Forensic geomorphology. Geol. Soc. Am. Geology Today, December, 4243.
Shuirman.G. and Slosson, J.E. 1992. Forensic engineering. Academic Press, San Diego, CA. 296p. Song, S. Schmalz.B, and Fohrer, N. 2014.Simulation and comparison of stream power in-chnnel and on the floodplain in a German lowland area. J Hydrol. Hydromech 62: 133-144.
U.S. Geologic Survey. 1904. 15-minuteTopographic Map,Ventura Quadrangle, California.
ACCEPTED MANUSCRIPT 18 Ventura County Flood Control District1.969.The great floods of 1969. Ventura, California, September.
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Figure Captions Fig. 1. Levee constructed in 1978 that protects Live Oak Acres greatly reduced width of the Ventura River, forcing the river east to the bluffs below Monte Vista. The toe of the bluff was eroded during the 2005 flood. Photograph taken in 2006.
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Fig. 2. Landslides on the bluff below homes in Monte Verde. Photograph taken in 2006.
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Fig. 3. Position of the Ventura River in 2002 ( source: U.S. Geological Survey topographic map of 2004 (Ventura Quad 15 minute). Notice the river is about 400 m from the bluffs.
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Fig. 4. Relative unit stream power upstream, adjacent, and downstream from the levee. LOA is Live Oak Acres. See text for further discussion. Google Earth image of 2006.
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Fig. 5. Upstream view of the Ventura River from the bluff top at Monte Verde in 2006. The three trees in the river bottom are all that remain in this location after erosion of the toe of the bluff. Levee protecting Live Oak Acres is visible across the river channel.
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