Environmental Litigation.

Environmental Litigation is a book written by and for trial attorneys. The authors are two practicing attorneys in Ann Arbor, Michigan, whose declared purpose in writing the book was to "fill the gap between survey texts and general practice manuals." This book, however, does much more than fill gaps.

The text is arranged to guide the reader through the basics of environmental litigation. It begins with a discussion of common law claims and moves to a review of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The authors then cover practical issues, including client interviews and trial tactics. The result is a cogent blueprint that a lawyer can follow when handling a case in this complicated area of the law.

The book centers on a hypothetical case about the contamination of a city's water supply with perchlorethylene (PCE) and trichlorethylene (TCE). The chemicals are found emanating from a local manufacturing firm that has been designated by the state as the only "potentially responsible party."

The facts of the case are told in rich detail. For example, the authors describe community concerns over media reports of increased cancer in the area and state personnel dressed in "moon suits" carrying instruments that look like Geiger counters. The story then jumps forward five years. At this point, the case has become more complicated--other possible sources of contamination have been discovered; the manufacturer has been found to have limited insurance and assets; and there have been problems with hydrological tests, epidemiological studies, and remediation.

This case forms the basis for examining a variety of litigation strategies. The authors use the case as a common thread throughout the book as they discuss how to conduct a client interview, informal discovery, formal discovery, and, finally, a trial.

The writing style is smooth and simple, and the authors often use analogies to help the reader understand certain points. Almost every page contains some helpful hint for the practitioner. For example, the authors suggest that lawyers use potential clients as "leaders" and "worker bees" to help gather technical information and sift through data before filing pleadings. Potential clients also can attend and record public hearings and other meetings where information regarding the contamination site is disseminated. These strategies can help defray pre-trial and litigation expenses.

The authors also suggest that attorneys make greater use of Federal Rule of Civil Procedure 31 (depositions upon written questions) or the state's equivalent to save costs when full-blown depositions are not justified. However, the book provides more than mere cost-cutting advice. Other practice tips abound, such as the caution against simply accepting documents as a response to interrogatories. Attorneys should insist that written responses, under oath, be provided in an interrogatory answer. Absent such a response, the attorney may not be able to prove a specific issue at trial, since bare documents may be considered unresponsive, vague, and incapable of being presented as evidence of the party's response to the question.

The book includes checklists, guides, and forms in each chapter. The appendixes, which are nearly as long as the text, contain more detailed forms and guides. These include sample complaints, interrogatories, site access agreements, and fee and rate schedules for engineering services. Although both the text and appendixes provide valuable guidance, the authors caution the reader to avoid depending on any form without altering it to fit the circumstances of a case.

The book covers issues important to every litigator, including alternative dispute resolution, insurance coverage litigation, chain of title searches, and mock trials. It also suggests how lawyers can address the latest concerns involved in environmental litigation. For example, the authors advise careful review of not only local court rules and the new Federal Rules of Civil Procedure but also the new tests for admissibility of scientific testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc. (113 S. Ct. 2786 (1993).)

The authors have produced a well-balanced approach to environmental litigation with keen insight into both the plaintiff's and defendant's views. In short, the book is not only a primer for attorneys who are undertaking environmental litigation for the first time, it is also a refresher course for more experienced attorneys.