Expert Witnesses and Burgdorf
I was reminded today of one of the best expert witnesses. Over the years I examined and cross examined many experts and I acquired two habits. One habit was to, before testifying, admonish expert witnesses that I called to “tell the truth – and to tell it truthfully”. Previously, so many of them had failed the second part. The other was to ask his or her age because many natural resource cases were appealed and I believed the appellate judges should acquire some sense of the maturity of the witness from an otherwise cold transcript.
Burgdorf is a very remote, isolated ghost town in Central Idaho that had flourished during the gold rush as a stopping place for those traveling to the north Idaho gold fields. It had a falling-down hotel, a number of dilapidated buildings and a hot water pool. The town area was private property, having been inherited by a mineral geologist. It was accessed by a very primitive dirt road, but a large number of years ago the Forest Service decided to build a major road through Burgdorf.
Historians and environmentalists were livid. The road construction and eventual traffic, they argued, would fall the already fragile buildings which were essentially unoccupied except for a few including a cabin that a singer, Carol King, used. The road opponents prevailed on the owner to apply for a federal court injunction, I was employed, and found a white hat somewhere.
Dr. Merle Wells, a consummate scholar and sometime Idaho State Historian, was asked by the road opponents to testify concerning the historic importance of Burgdorf, its continuing cultural value, the ensuing years of decline, and the current fragility of the buildings and the surroundings. He was very reluctant to become involved in what had become a controversy of newspaper headlines because of the David/Goliath appeal. But he eventually agreed.
When called to testify, I began his questioning with the usual, including his age. The moment froze. He looked at me, saying nothing. The federal judge looked at me, at the witness, at the government lawyers. The witness said nothing. I was confused. After an extended silence the judge asked the witness whether he heard the question. Dr. Wells allowed that he had. And said nothing. Finally, he answered, with apparent seriousness: “My age is 72 years, seven months, three weeks, four days, six hours, and eight minutes – and that is hearsay.” (The numbers here stated are my fictions; the content of the answer is not.) I was relieved. The judge rolled his eyes. The government lawyers sank. The audience was awe struck. No laughter. Dr. Wells quietly continued with extended, erudite, and persuasive testimony. Others testified as to the impact of the proposed road. The Forest Service plan was defeated.
He overemphasized my admonition, probably his way of telling me that he had been offended by it. But within the last year, one who is now a professor at the University of New Mexico saw me many years after having testified himself as an expert when he was a young consultant in another case in which I was engaged. He told me that he remembered my admonition, and repeated it in every class he taught since entering academia. So maybe it was a good habit, after all. I don’t know what happened to the white hat, but my environmentalist friends have suggested that I never wore one again.
Burgdorf still exists, I’m sure it would welcome you, but check its website first.
