When oil prices are relatively low, and the status of U.S. government incentives has continued uncertainty, a predictable downturn in biofuel and biochemical related industries brings with it increased participant discomfort, leading to more lawsuits and finding the right biochemical or biofuels expert witness become paramount. Those of us that have been in the “bioeconomy” for any length of time have seen this cyclical nature, and the quite natural anxieties when downturns occur. As with any specialized area, bioeconomy related litigation requires the assistance of experienced experts to help in determining what went wrong, what might have been done to prevent it, and the economic impact of these failures. This article provides a short overview of the bioeconomy “expert witness”, where to find them and qualifications to look for.
The term “bioeconomy” refers to the production of renewable biological resources, and the conversion of these resources and waste streams into value added products, such as food, feed, fuel, bio-based products and bioenergy. For the purposes of this article, we will speak of the bioeconomy as including commercial or industrial products composed in whole, or in part, of biological products – including renewable agricultural and forestry materials. Example would be various types of renewable chemicals and biofuels, covering such industries as ethanol, biodiesel, biomass power, renewable chemicals, renewable jet fuels, pyrolysis, hydrolysis, gasification, waste-to-energy, anaerobic digestion, torrefaction, wastewater treatment, butanol, steam reformation, biochar, carbonization and biogas.
In lawsuits involving biofuels, biomass, biochemicals, and particularly in those involving some emerging bioeconomy technologies, the attorney’s first order of business should be to obtain a good understanding as to how the system or process in question was designed to work. Thus, in bioeconomy related cases, it is crucial early on, to gain both a good understanding of the process involved, and the technical jargon. Sometimes, the attorney’s initial education has come solely from his or her client, who may not be quite as knowledgeable as they believe, and who undoubtedly believes that their actions or inaction were correct. The takeaway here is to identify and consult with the experts as early as possible.
There are many professionals with chemical, engineering, biology, and/or finance backgrounds, but few that have meaningful experience in these specific areas. Thus, the attorney should begin early and start with the understanding that the pool of really good professionals available to serve as experts in these cases is probably limited. The attorney must also note that because these are relatively small industries, the true experts may well know each other, and may have worked in some capacity for the companies involved. The result is that it may a bit challenging to find a seasoned expert willing to testify in a particular case, so search early and do conflicts checks initially. So, what should the attorney look for in these experts and what should he or she expect from them? When an expert is initially retained, it is likely to review materials, perhaps make a site visit, and to give his or her thoughts as to what happened and why. This informal opinion is likely needed for the attorney to know the best direction to take in the case. However, even in simply this consulting capacity, it is quite likely that the expert will later become a disclosed “expert witness”, so it is obviously important that counsel look toward that end in the initial engagement.
The bioeconomy involves many different areas of expertise. An engineering question requires a very different skill set than a chemical question, and both are very different from economic or damages questions. Thus, one of the initial challenges is to find the expert(s) that fit the exact issue(s) at hand. Counsel must determine exactly what they will need as early as possible, and it is a good idea before hiring any expert, to hire and visit with an experienced consultant to make these determinations.
As noted, there is not nearly as much litigation in these bioeconomy areas as there is in more common areas like medical malpractice and personal injury. In the bioeconomy, there are very few, if any, good experts who derive even a substantial part of their livelihood from testimony in legal proceedings. Many of the really good experts are not as experienced in depositions or courtroom settings as other experts may be, so selecting the right expert in a particular case involves the attorney addressing several matters initially. The obvious first inquiry is whether the professional has that specialized education, experience and skills about the particular subject in question. Not everyone who is familiar with one facet of a process or industry is familiar with all facets. Second, as in any case, the attorney needs to determine whether the expert has the ability to communicate well and articulate industry-specific knowledge. Those with knowledge that cannot communicate on a level the untrained can grasp, are not helpful. Third, the attorney should determine whether the potential expert has any actual or even perceived conflicts. Again, these industries have far fewer experts than most and it is not uncommon for the top experts to have a breadth of previous engagements with lots of companies. Last, but not least, I would suggest that the inquiry into the expert’s familiarity with the court system is also very important. This will vary greatly in what the attorney is seeking. Some attorneys will want experts with a great deal of courtroom experience as they are familiar with court processes and etiquette, and will probably easier to qualify as an “expert”. However, like in any other litigation, these do pose the potential to be viewed as “hired guns,” quite often having previously produced a great deal of cross examination material. On the flip side, some attorneys prefer the professional who has seldom or never testified, knowing that his or her testimony may come across as more credible and less “bought”. However, the inexperienced professionals can present problems in not being familiar with the courtroom and process, and are sometime more inclined to be argumentative or combative.
From the biofuels expert witness perspective, several things should be explored before accepting an engagement. Initially, the expert will want a clearly defined scope of what is being sought to make certain they have the proper expertise needed. Next, they get a list of everyone involved and expeditiously conduct a “conflicts” check to make certain they are able to accept the engagement. At this point, if the expert feels that they have the qualifications and are clear to proceed, they should go over their qualifications with the hiring attorney. It is imperative to be fully candid about everything. It is always best to deal with any potential difficulties before accepting the engagement. If everyone is satisfied that the expert will fit, and the engagement is probable, the expert should make certain that the attorney is willing to take the time to fully prepare with them. This means covering the applicable rules that apply, going over “attorney-client” privilege and “work product” so there is a clear understanding of what will be discoverable, and making certain the expert will be given the materials and time to be fully prepared for all depositions and trial testimony.
Over the years, I have seen many “experts” who appeared very frustrated with the process. Some felt they were not allowed to say everything they desired. Others were disturbed that they were not allowed to fully answer questions. Some even expressed dismay that they were not notified as to the outcome of the case, or whether their opinion was well received. Hearing these complaints leads me to believe that many potential experts have a grave misunderstanding about the process itself and in particular, their role in it. This leads me to the conclusion that the best experts in bioeconomy matters are working consultants who have some familiarity with the process.
At Lee Enterprises Consulting, we conduct a series of mandatory trainings for any of our experts who wish us to recommend them as experts in litigation matters. In this training we give them a basic understanding of the process and their role in it, an overview of the Rules of Evidence and Rules of Procedure with respect to experts, and the Supreme Court’s criteria and qualifications as an “expert witness”. We ask our biofuels expert witness to carefully analyze everything before rendering any opinion, which means refraining from committing to an opinion based on a single phone call unless absolutely certain. We instruct them to keep good records, never to hesitate to ask if more information is needed, and to be meticulous in their reports. We tell them to carefully evaluate each matter and never feel pressured to come to a conclusion inconsistent with their findings. We instruct them always be honest and forthright, and never to compromise their integrity. In our opinion, following these guides is what makes a good “expert witness”.
Large renewable energy and biochemical consulting firms like ours certainly have experts in more common areas like biofuels, biomaterials, biomass, biomass power, bio-based chemicals, biotechnologies and renewable fuels and chemicals in general. Our clean energy experts are part of a larger, multidisciplinary group of green energy consultants with a wide variety of expertise in more specialized areas like biomass production, financial due diligence, organic synthesis, fuel additives, ethanol gas, biodiesel fuel including algae biofuels, solid state and industrial fermentation, green energy grants, ag biotech, agricultural waste, alcohol fuels, alternative proteins and animal-free products, sustainable foods, beverage fermentation, biocatalysis, biodiesel conversion, biogas production, biomass power, carbon intensity, co2 utilization, combined heat & power, Fischer-Tropsch technology, food waste, hydrothermal carbonization, industrial enzymes, landfill management, microbial fermentation, organic synthesis, plastic pyrolysis, plastic recycling, plastic waste, pyrolysis oil, reactor design, renewable identification number, the Renewable Fuel Standard (rfs2), solid recovered fuels, torrefaction and torrefied biomass, waste to energy, and waste-to-hydrogen. Finally, members and strategic partners of these green energy consulting firms should also have the availability to do things like engineering, technical feasibility studies and techno-economic analysis, due diligence, and feasibility studies, and provide expert witness testimony, and should have the contacts to assist with renewable energy finance, accounting, plant safety and insurance, legal, and virtually any other services related to the bioeconomy.
Lee Enterprises Consulting is the world’s premier bioeconomy consulting group, with over 100 highly qualified experts serving in all these areas. Look at our experts and the services we provide. Most of our experts are also available to advise and serve as expert witnesses in bioeconomy litigation matters. For the larger projects, we specialize in putting together full service, interdisciplinary teams with one point of contact. Call us at 1+ (501) 833-8511 or email us for more information.
About the author. Wayne Lee is an internationally recognized alternative fuels consultant with over thirty years’ experience. He is the CEO of Lee Enterprises Consulting, the world’s largest bioeconomy consulting group, with over 100 internationally recognized professionals, many who serve as as a biochemical or biofuels expert witness. See other articles by this author: The Expert Witness in Bioeconomy Litigation and Economics and Damages in Bioeconomy Litigation.
 As CEO, the author personally leads the Litigation Support section at Lee Enterprises Consulting, Inc. and conducts all initial interviews to determine the exact expertise needed and the best professional to render such advice. He oversees the work of the biofuels expert witness, the biochemical expert witness and all others on litigation related teams.
 Federal Rules of Evidence and applicable state rules.
 Federal Rules of Civil Procedure and applicable state rules.