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2018 Missouri Water Seminar
Ethical Issues in
Environmental Litigation
Stephen G. Jeffery Jeffery Law Group, LLC Chesterfield, Missouri
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Ethical Issues in Environmental Litigation
Topics Discussed: Rule 1-1.8 – Prospective Clients Rule 4-4.2 – Communications with Persons Represented by Counsel § 490.065, RSMo – new Daubert standard in Missouri
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Ethical Issues in Environmental Litigation
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THE CASE OF THE
DUBIOUS DOWSER
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Ethical Issues in Environmental Litigation
On his website, Perry Mason states,
Perry Mason, Attorney-at-Law
40 Years of Legal Experience Environmental Law& Litigation
Address: Brent Building, Suite 904 Phone: MAdison 5-1190
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Ethical Issues in Environmental Litigation
One evening at his office, Mason is reading the day’s mail.
He had received a large manila envelope that contained
several documents concerning the Got Rocks Chemical
Company in Salem, Missouri.
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
The envelope included a copy of a hand-written report
from a local dowsing company that described a buried
pipe connecting a floor drain from the Got Rocks
Chemical Company to a nearby creek.
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Ethical Issues in Environmental Litigation
The envelope also included a copy of an internal Got
Rocks Chemical Company memo containing a hand-
written note stating “Wait until it’s dark to dump the
stuff into the creek.”
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Ethical Issues in Environmental Litigation
The next day the phone rings and Mason’s secretary,
Della Street answers.
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
She hands the phone to Mason, and the caller says,
“Mr. Mason, my name is Murl Huggard. I live near the
chemical plant and I want you to sue them for me.
Their chemicals caused me to lose my singing voice. I
sent you the envelope with all those papers.”
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Ethical Issues in Environmental Litigation
The caller also says, “The people at the chemical plant
don’t care about anyone – only money. I am willing to
do anything to stop them. Anything. Mr. Mason, will
you help me?”
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Ethical Issues in Environmental Litigation
Mason pauses and then says, “Mr. Huggard, thank you
for calling and sending the envelope and documents.
However, I cannot represent you because I have
previously represented the chemical company.”
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Ethical Issues in Environmental Litigation
Several weeks later, Mason is having lunch at the club
when he is approached by his old friend, Hamilton
Burger.
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
Burger, who had recently retired as the district attorney,
had joined a prominent plaintiff’s firm – Dewey,
Cheatem & Howe - to lead its litigation practice group.
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Ethical Issues in Environmental Litigation
Burger told Perry that they had just filed a new
environmental case against the Got Rocks Chemical
Company. Burger said, “We are really going to ring
the bell on this one!”
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Ethical Issues in Environmental Litigation
In his workup of the case, Burger sends his trusted lead
investigator, retired police lieutenant Arthur Tragg, to
locate and interview people in the area who used to
work at the chemical plant.
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
Lieutenant Tragg (he loves using his former title and
flashing his badge) takes statements from several
former employees, including a retired shift manager,
who admitted to shoddy housekeeping practices at the
plant.
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Ethical Issues in Environmental Litigation
Shortly after the lawsuit has been filed, the court
schedules a pre-trial hearing. Burger arrives early and
takes his seat along with his client, Mr. Huggard, and
his investigator, Lieutenant Tragg.
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Ethical Issues in Environmental Litigation
Suddenly, a loud commotion occurs in the back of the
courtroom. Turning their heads, Burger, Huggard, and
Tragg all see the president of the chemical company,
Mr. Got Rocks, walking into the courtroom along with
his new attorney … Perry Mason!
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Ethical Issues in Environmental Litigation
After the Judge opens the hearing, Burger approaches
the Judge.
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Ethical Issues in Environmental Litigation
“Your Honor, we must object. Mr. Mason’s appearance
here today is highly irregular. In fact, Mr. Mason is
disqualified because he previously consulted with the
plaintiff as a ‘prospective client.’”
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Ethical Issues in Environmental Litigation
The Judge leans forward on the bench and says, “Hmm,
Mr. Burger appears to raise an interesting legal point
here. Mr. Mason, what is your response?”
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Ethical Issues in Environmental Litigation
Issue:
By reading the documents and having a phone
discussion with Mr. Huggard, has Perry formed an
attorney-client relationship?
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Ethical Issues in Environmental Litigation
RULE 4-1.18: DUTIES TO PROSPECTIVE CLIENT
(a) A person who consults with a lawyer about
the possibility of forming a client-lawyer relationship
with respect to a matter is a prospective client.
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Ethical Issues in Environmental Litigation
(b) Even when no client-lawyer relationship
ensues, a lawyer who has had discussions with a
prospective client shall not use or reveal information
learned in the consultation, except as Rule 4-1.9 would
permit with respect to information of a former client.
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Ethical Issues in Environmental Litigation
Comment 2.
A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.
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Ethical Issues in Environmental Litigation
Comment 2.
… a consultation is likely to have occurred if a lawyer, either in person or through the lawyer's advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response.
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Ethical Issues in Environmental Litigation
Comment 2.
In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest.
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Ethical Issues in Environmental Litigation
Comment 2.
Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a "prospective client."
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Ethical Issues in Environmental Litigation
The Judge says, “Well, based on Rule 4-1.18, I find that
Mr. Mason is not disqualified. The plaintiff unilaterally
provided this information to Mr. Mason. Mr. Mason
never solicited any information. Mr. Burger, your
objection is overruled.
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
Mason then stands.
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Ethical Issues in Environmental Litigation
“Your Honor, at this time the defense moves to exclude
the statements obtained by Lieutenant Tragg at Mr.
Burger’s direction. These statements were obtained in
violation of the ethical rules.
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
Burger exclaims, “Your Honor, Mr. Mason’s request in
simply absurd. This is just another example of Mr.
Mason’s well-known efforts at confusion and
obfuscation.”
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Ethical Issues in Environmental Litigation
The Judge asks, “Mr. Mason, what is the specific basis
for your objection to the admissibility of this evidence?
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Ethical Issues in Environmental Litigation
Issue:
Is it appropriate for Burger to direct Tragg to interview
former management employees of the chemical
company knowing that the company was likely
represented by counsel?
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Ethical Issues in Environmental Litigation
RULE 4-4.2: COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
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Ethical Issues in Environmental Litigation
Comment 4. … A lawyer may not make a communication prohibited by this Rule 4-4.2 through the acts of another….
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Ethical Issues in Environmental Litigation
Comment 5. In the case of a represented organization, Rule 4-4.2 prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter …
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Ethical Issues in Environmental Litigation
Comment 5. In the case of a represented organization, Rule 4-4.2 prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter ...
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Ethical Issues in Environmental Litigation
Comment 5. In the case of a represented organization, Rule 4-4.2 prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
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Comment 8. The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed.
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Ethical Issues in Environmental Litigation
Comment 8. The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances.
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Ethical Issues in Environmental Litigation
The Judge say, “Counsel, please approach.”
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Ethical Issues in Environmental Litigation
The Judge leans forward on the bench and says, “It
appears to the Court that these statements were made
by former management personnel who could bind the
company.”
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Ethical Issues in Environmental Litigation
“Further, it appears to the Court that it was reasonable
to conclude the Defendant likely had legal
representation at the time these statements were
obtained.”
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Ethical Issues in Environmental Litigation
The Judge continued, “Accordingly, the Court concurs
with Mr. Mason’s analysis of Rule 4-4.2. Mr. Burger,
the Court assumes you will not offer this evidence
otherwise the Court will be compelled to initiate an
appropriate inquiry with the bar association. The
objection is sustained.”
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Ethical Issues in Environmental Litigation
The Judge then states, “Are there any other preliminary
matters to take up today?
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Ethical Issues in Environmental Litigation
Mason stands and states, “Your Honor, the defense has
serious reservation concerning the admissibility of
Plaintiff’s environmental reports. Specifically, the
findings in these reports do not meet the Daubert
standard under 490.065, RSMo.”
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Ethical Issues in Environmental Litigation
“What in particular is objectionable, Mr. Mason?” asks
the Judge.
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
Mason states, “The conclusions regarding the location
of the pipe running to the creek are predicated on the
use of a so-called dowser or ‘witching stick.’ The use of
‘witching sticks’ does not meet the Daubert standard for
admissibility and we ask that it be excluded.”
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Ethical Issues in Environmental Litigation
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Ethical Issues in Environmental Litigation
“Your Honor,” Burger says. “This is ludicrous. Mr.
Mason knows full well that all the contents of these
reports comply with necessary legal requirements for
admissibility. This is just more showmanship on Mr.
Mason’s part.”
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Ethical Issues in Environmental Litigation
Issue:
What are the necessary requirements under §490.065,
RSMo for the admissibility of scientific and technical
evidence?
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Ethical Issues in Environmental Litigation
Section 490.065.2, RSMo
(1) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
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Ethical Issues in Environmental Litigation
Section 490.065.2, RSMo
(1) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
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Ethical Issues in Environmental Litigation
Section 490.065.2, RSMo
(1) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (b) The testimony is based on sufficient facts or data;
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Ethical Issues in Environmental Litigation
Section 490.065.2, RSMo
(1) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (c) The testimony is the product of reliable principles and methods;
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Ethical Issues in Environmental Litigation
Section 490.065.2, RSMo
(1) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (d) The expert has reliably applied the principles and methods to the facts of the case;
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Ethical Issues in Environmental Litigation
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), this Court focused upon the admissibility of scientific expert testimony ...
Kumho Tire Co., v. Carmichael, 526 U.S. 137, 141 (1999).
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Ethical Issues in Environmental Litigation
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), this Court focused upon the admissibility of scientific expert testimony. It pointed out that such testimony is admissible only if it is both relevant and reliable …
Kumho Tire Co., v. Carmichael, 526 U.S. 137, 141 (1999).
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Ethical Issues in Environmental Litigation
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), this Court focused upon the admissibility of scientific expert testimony. It pointed out that such testimony is admissible only if it is both relevant and reliable. And it held that the Federal Rules of Evidence "assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id., at 597.
Kumho Tire Co., v. Carmichael, 526 U.S. 137, 141 (1999).
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Ethical Issues in Environmental Litigation
The Court also discussed certain more specific factors, such as testing, peer review, error rates, and "acceptability" in the relevant scientific community, some or all of which might prove helpful in determining the reliability of a particular scientific "theory or technique." Id., at 593-594.
Kumho Tire Co., v. Carmichael, 526 U.S. 137, 141 (1999).
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Ethical Issues in Environmental Litigation
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Looking puzzled, the Judge said, “Counsel, what exactly is dowsing and what is a witching stick?”
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Ethical Issues in Environmental Litigation
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Mason stood up and presented two photographs to the Court.
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Ethical Issues in Environmental Litigation
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Mason explained, “According to the U.S. Geological Survey, . . .”
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Ethical Issues in Environmental Litigation
"Water dowsing" refers in general to the practice of using a forked stick, rod, pendulum, or similar device to locate underground water, minerals, or other hidden or lost substances, and has been a subject of discussion and controversy for hundreds, if not thousands, of years.
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
Although tools and methods vary widely, most dowsers (also called diviners or water witches) probably still use the traditional forked stick, which may come from a variety of trees, including the willow, peach, and witchhazel …
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
Although tools and methods vary widely, most dowsers (also called diviners or water witches) probably still use the traditional forked stick, which may come from a variety of trees, including the willow, peach, and witchhazel. Other dowsers may use keys, wire coathangers, pliers, wire rods, pendulums, or various kinds of elaborate boxes and electrical instruments.
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
In the classic method of using a forked stick, one fork is held in each hand with the palms upward ...
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
In the classic method of using a forked stick, one fork is held in each hand with the palms upward. The bottom or butt end of the "Y" is pointed skyward at an angle of about 45 degrees ...
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
In the classic method of using a forked stick, one fork is held in each hand with the palms upward. The bottom or butt end of the "Y" is pointed skyward at an angle of about 45 degrees. The dowser then walks back and forth over the area to be tested ...
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
In the classic method of using a forked stick, one fork is held in each hand with the palms upward. The bottom or butt end of the "Y" is pointed skyward at an angle of about 45 degrees. The dowser then walks back and forth over the area to be tested. When she/he passes over a source of water, the butt end of the stick is supposed to rotate or be attracted downward.
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
Water dowsers practice mainly in rural or suburban communities where residents are uncertain as to how to locate the best and cheapest supply of groundwater ...
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
Water dowsers practice mainly in rural or suburban communities where residents are uncertain as to how to locate the best and cheapest supply of groundwater. Because the drilling and development of a well often costs more than a thousand dollars, homeowners are understandably reluctant to gamble on a dry hole and turn to the water dowser for advice.
https://water.usgs.gov/edu/dowsing.html
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Ethical Issues in Environmental Litigation
“Based on the lack of any scientific predicate for the use
of dowzing or witching sticks in this State,” said the
Judge, “this Court is compelled to sustain Mr. Mason’s
motion. The evidence consisting of the location of the
buried pipe leading to the creek is excluded.”
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Ethical Issues in Environmental Litigation
“Any other preliminary matters?” asked the Judge.
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Ethical Issues in Environmental Litigation
“Yes, your Honor,” said Burger. “The Plaintiff would like
to offer the hand-written note on the internal company
memo. The handwritten notation stating, ‘Wait until it’s
dark to dump the stuff into the creek.’”
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“Mr. Mason?” asked the Judge.
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Ethical Issues in Environmental Litigation
Mason stood and said, “Your Honor, we would reserve
any objection pending our voir dire of the Plaintiff
concerning this point.”
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Ethical Issues in Environmental Litigation
“Mr. Huggard will take the stand,” directed the Judge.
The Plaintiff slowly shuffled his way to the witness stand.
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Ethical Issues in Environmental Litigation
“Mr. Huggard, isn’t it true that when you and I spoke on
the phone several months ago, you said you would do
‘Anything’ to stop my Client?” asked Mason.
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Ethical Issues in Environmental Litigation
Mr. Huggard replied, “Yes.”
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Ethical Issues in Environmental Litigation
“Mr. Huggard, let me hand you the company memo with
the handwritten note on it,” said Mason. “Please observe
the various swirls on the hand writing.”
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Ethical Issues in Environmental Litigation
Mr. Huggard replied, “Yes.”
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Ethical Issues in Environmental Litigation
Mason leaned into the witness and asked, “Mr. Huggard,
let me hand you the handwritten dowser report that you
previously mailed to me. Wouldn’t you agree that the
writing is very similar to the writing on the company
memo?”
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“Mr. Huggard, isn’t it also true that you entered into a
engagement letter with Mr. Burger,” asked Mason. “And
this is your hand writing on that engagement letter?”
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“Mr. Huggard, isn’t it also true that you have a very
distinctive style of handwriting as shown on the
engagement letter?” asked Mason.
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Huggard sighed and replied, “Yes.”
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“And Mr. Huggard, isn’t it true that the handwriting on
the dowsing report and the internal company memo is
really your handwriting?” exclaimed Mason.
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Mason added, “And isn’t it true you obtained a copy of
that memo, and you wrote ‘Wait until it’s dark to dump
the stuff into the creek’ in an effort to do ‘Anything’ to
stop my Client?”
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Huggard slumped in the witness chair.
Burger put his hand to his head.
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“Well, Mr. Huggard, I am waiting for an answer,” said
Mason.
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“Yes, yes, it’s my hand writing. I wrote the report and
the note,” said Huggard. “They have the money. They
could have paid me. Mr. Got Rocks could have paid me
….”
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There was a loud commotion in the gallery. In an effort
to quiet the noise from the gallery, the Judge banged his
gavel.
“Counsel. Please approach,” said the Judge.
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“In light of these developments,” said the Judge, “do you
have a motion, Mr. Mason?”
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“Yes, Your Honor, said Mason, “the defense moves for an
immediate dismissal of this case.”
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“Under the circumstances,” said the Judge, “this case is
dismissed.”
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Q U E S T I O N S
Stephen G. Jeffery Jeffery Law Group, LLC
400 Chesterfield Center, Suite 400 Chesterfield, Missouri 63017-4800
Toll-Free: (855) 915-9500 E-mail: [email protected]
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QUESTIONS
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