What are the Stakes? Part 3
Having described last week what this prospective litigation is about, we shall start from considering the challenges for the defence lawyers. They have the vast weight of scientific opinion on their side. The various concerns are said to be utterly groundless. They have been investigated and the risks alleged are said to be more likely to arise in nature than they are pursuant to the experiment. This is not some potential Frankenstein's monster waiting to be let loose.
In addition the experiment is expected to be enormously beneficial and helpful to scientific knowledge as regards the information which it is hoped will be garnered from the project. Stopping it or holding it up would be a catastrophe. It would inevitably be regarded as an incomprehensible decision, a catastrophic loss to science with no benefit. From the scientists' point of view, losing the litigation would be the equivalent of Manchester United losing to an average pub team.
That actually means that there is considerable pressure on the defence lawyers. One might look at it and say that they have an easy job. However in litigation, just as in football (or other sports) complacency is the enemy of victory. Having the case that everyone thinks you cannot lose can be a poisoned chalice of unbelievable proportions. With the added pressure in this instance that there is considerable importance to the work to be done, and considerable time and expense undertaken to get to this stage. Never underestimate the pressure on lawyer in a surefire winner. Everyone is aware of the pressure on a lawyer who is really up against it, who has the really difficult case, but the pressure applies the other way around as well.
The first issue to be considered will be whether a European governmental body responds to proceedings in Hawaii at all. That is not really where they should be sued. They would have to voluntarily submit to the court's jurisdiction, although it will be interesting to see if any other steps are taken to involve them if they do not voluntarily submit. It might be simple to say why bother appearing, but tactical decisions like that are rarely straightforward. The order sought is a temporary restraining order preventing progress of the project before production of a safety report and an environmental assessment. Apart from CERN, other defendants are the U.S. Department of Energy, the Fermi National Accelerator Laboratory, and the National Science Foundation. The plaintiffs suggest that if they get the order against the others, even if CERN does not show up they will be able to stop the project because they will be restraining crucial components from being supplied. Therefore tactically CERN have to decide whether it is best to show up or not. Whichever decision is made, if it leads to the wrong result it would be likely to be pilloried as always obviously wrong. This is a typical aspect of the pressure of the "unlosable" case.
Meanwhile it would be interesting to know the attitude of the lawyer for the plaintiffs (unless they are representing themselves). Such a lawyer would have one of two approaches. Either it is just a job like any other (you are just there to present the client's case) or he or she will think there is something in the point. If it is the latter then it would be a bit different from the normal run of cases where you have a view on the merits of the client's case. You normally set personal feelings aside, but quite how you would be able to do that if you thought the consequence of losing the case might be the destruction of the planet is a little difficult to contemplate. Even regarding the case as hopeless, you would feel under considerable pressure in those circumstances. Bill Shankly, the legendary Liverpool football manager, when being asked if he thought football was a matter of life and death, said it was much more important than that. If the plaintiffs were correct the same could be said of their case here.
You will I would imagine have gathered from the less than hysterical tenor of this article that I'm not expecting that there is the remotest chance of this project causing the end of the world. It will be interesting to hear how the court approaches this case. It does certainly raise one interesting issue though, even if it is inapplicable here. How big does a risk have to be to render a project unjustifiable, when the project is enormously beneficial and the risk is remote but catastrophic? Who should be in charge of assessing the risk and by reference to which criteria?