By Tony Nettleman (Part Two)
Serving as an expert witness and testifying in court is enjoyable, fulfilling, and a great supplemental offering within your land surveying practice. While providing these services for the previous 20-plus years, I discovered three critical skills that will aid the surveyor in being the best expert witness they can be.
The first skill is understanding the legal process. The second skill is being able to receive and offer criticism concerning the quality of land surveying documents (i.e. maps and reports). The third skill is distilling complex subject matter knowledge into oral testimony, written reports, and demonstrative exhibits that can be fully understood by non-surveyors.
Understanding the legal process is critical to being a dangerous expert witness. Watching how other experts operate, I am often surprised by how passive they are in the litigation process. Many of these experts simply sit back and wait for the attorney to ask them to do something. The problem with that strategy is that a fair number of attorneys rarely work with an expert, so the attorneys don’t even know what the expert should be doing at any given time.
On the other hand, my expert practice has been designed to be proactive in every stage of the litigation process. Before we offer an engagement letter to any attorney, we fully research the facts, the surveying issues, and the legal merits of the case. If we don’t feel like we will be an asset, we decline the engagement.
During the discovery phase, we offer the attorney several templates such as a request for production (RFP) that list every conceivable form of evidence that a surveyor may have in his records (hardcopy field notes, electronic field notes, equipment calibration records, surveys of nearby properties, etc.), request for admissions (“admit that your total station has not been calibrated since the birth of Christ”), and sample deposition questions.
At trial, we keep a collection of foam board exhibits describing everything from a datum to riparian allocation methods. In sum, if you can anticipate the needs of the court, you can provide a lot of extra value in your expert witness services. No matter whether you are offering testimony directly related to the possible negligence of another surveyor, or involved in a contentious boundary dispute between neighbors, you will be required to review other surveyors’ work and then provide an opinion concerning the quality of that survey map the court.
Being able to objectively offer criticism of other surveyors’ work as well as receive criticism of your own work, you will be well on your way to being an effective expert witness. This is a difficult skill because the majority of surveying practices today are small businesses with one or two licensed surveyors supervising a group of technicians. It is not uncommon that a solo professional surveyor never has his work examined by a fellow professional. I think even in terms of general practice this is dangerous because solo practitioners find themselves in an echo chamber and are unable to objectively criticize their own work–not to mention having others criticize it.
On the contrary, I’ve learned that teaming up with another professional surveyor to complete a project is quite enjoyable because you get to work and learn from someone else in the local area. It is also essential because before I ever sign or stamp a survey map or report, another professional surveyor critically analyzes the facts, methods, equipment, results, and conclusions that I’ve formed during any given lawsuit.
I find this process so important that I always team up with a local surveyor no matter whether I’m licensed in that state or how much surveying I’ve done in the area. Similarly, there is a right way and a wrong way to offer criticism of other surveyors’ work. The right way, in my opinion, is to compare the work product (i.e. survey map) to the generally accepted practices of surveying (from textbooks, CEUs, etc.) and the state-specific minimum standards (Florida administrative code 5J-17, Texas administrative code 138).
If you can state a specific principle or statute subsection that’s been violated, it’s difficult to argue with. For example, FAC 5J-17.051(2) requires that “The accuracy of [survey] data shall be independently verified.” If there is no mention of this verification on the survey map or report, I consider that a deficiency. Conversely, there is most certainly a wrong way to provide criticism. I’ve seen many surveyor experts personally attack another surveyor expert based on some type of vague honesty or integrity issue. The courts do not look kindly on experts that personally attack others.
In sum, giving and receiving criticism can be uncomfortable, but it is an essential element in the civil litigation process. Concepts such as datums, the priority of calls, and state minimum standards are so easily understood by most surveyors that we discuss them at the state society cocktail conference and in Facebook groups on a continual basis. You understand the subject, the expert witness land surveyor that has been retained by the opposing party understands the concept, but explaining that an iron rod with the proper dignity takes precedence over a plat angle may be a bridge too far for the six jurors impaneled for this civil case.
I’ve said it often, and I will say it again, every great expert witness has the heart of a teacher. Your job is not to convince anyone of anything. Instead, your sole task is to distill the essential principles and concepts that relate to the current dispute so that the adjudicator (judge or jury) can apply the rules of surveying to solve the problem.
But wait, you and I have spent years in college and more years in practice learning all of these concepts. So how can we translate decades of knowledge into a few hours of testimony? One suggestion is to use every instructional aide that will help visually convey a subject to the judge or jury. Bring a total station or GPS to show the court how surveyors collect data and how not keeping the rod plumb could lead to blunders. Have a series of foam board posters printed that explain the difference between NAVD88 and NGVD29 vertical datums. Have an iron rod and an iron pipe in your bag of goodies to show how an open top looks different from a solid rod.
The principles of practice and instructional aids that you will present at deposition or trial should be discussed with your attorney weeks or months ahead of time and the questions related to these topics should be scripted at least in outline form.
Understanding the legal process, being able to receive and offer criticism, and distilling complex subjects into understandable testimony are three critical skills that every land surveyor expert witness should master. Just like everything else, being a great expert requires practice and dedication. I hope that these concepts will help you further your expert practice.