- SPECIAL REPORTS
- THE MAGAZINE
Barbara Ashley Phillips reports in Finding Common Ground that "litigation is not trial. It is preparing for trial that ninety-five percent of the time won't happen." When trial does happen in the other five percent of the cases and when a case involves or calls for the expertise of a professional surveyor, there are things the professional needs to know about the process. For most surveyors there may be only a few opportunities in a whole career to testify in trial; it is a process some never become fully comfortable with. Not the least of the problems for some surveyors is in understanding and dealing with the expert witness/lawyer relationship.
The Role of an Expert WitnessAccording to Rule 702 of the Federal Rules of Evidence, the role of an expert witness is "to assist the trier of fact to understand the evidence, or to determine a fact in issue." The major distinction between an expert witness and a lay witness lies in the ability of the expert to offer an opinion in his testimony. Quoting from Rule 702 of the Federal Rules of Evidence, "a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise [emphasis added]." It is also well-understood that an expert witness is a professional and is to be paid for his or her testimony and preparation, which is another distinction between the expert and lay witness.
The November 1997 Civil Engineering News features an article titled "Engineers are from Missouri, Attorneys Are from Outer Space" by Samuel J. Brown, PhD, PE. Brown states that "A common complaint by many engineers and scientists who work in the realm of forensics regards the procrastination and negligence of attorneys who wait until the last minute to retain an expert to testify." Brown also says that a "common problem encountered by the engineering forensic expert witnesses is not getting paid for some or all services." He explains that when a lawyer is working on a contingency fee basis it is the lawyer who usually pays the fees of expert witnesses. The clear implication is that the less time the expert has to spend preparing to testify, the smaller the expert's fee will be. Knud E. Hermansen, attorney, engineer and surveyor, in writing for the Massachusetts Association of Land Surveyors and Civil Engineers (MALSCE Surveyor, June/July 1997) also spoke to the issue of lawyers' procrastination. He said, Procrastination to the level of negligence seems to happen so frequently in legal practice that I am appalled by its common occurrence." These well-known writers, highly qualified to write on this subject, raise issues of real interest for the professional surveyor.
The Surveyors/Attorney RelationshipThe Fee Arrangement
There are a number of things that must occur before you ever climb on the witness stand. First of all, and it may be the most important, better have a good fee schedule lined up and know who is going to pay you ... Never, under any circumstances, have a contingent fee (a fee that is based on the outcome of the case). That is a criminal offense ... An expert witness is supposed to be there to testify to his opinion and to exercise judgment and discretion; and if the outcome of the case is going to affect ... his remuneration, then he has a situation which prevents him from being a true expert witness, and his testimony is subject to violent impeachment. 
Attorneys understand about the fee arrangements and will always want to know what the expert's fee schedule is. In my experience it is best to be engaged by the attorney, not the attorney's client. The fee payment should come from the attorney, as should an engagement letter that clearly states the intended roles of the expert and the agreed-upon fee arrangement. Attorneys are accustomed to making retainer payments to experts but it is understood that a retainer is not a lump-sum payment for the intended services.
Before agreeing to testify, the professional must make her own personal evaluation of the merits of the case. The professional witness' first obligation is to advise her client of the merits of the case from the professional's point of view and explain whether she is able to provide supporting testimony in the case. The value of a professional witness depends upon total objectivity. If she is to provide supportive testimony the witness must first determine that there are merits to be supported.
"The attorney discusses the merits of the case long before the trial date. He wants to know whether the surveyor can testify in an unimpeachable fashion to sustain a profession with honesty, accuracy and knowledge." 
There must be clear understanding by the expert witness and the attorney of their respective roles and d the rules under which they must operate. The attorney should brief the witness on the intended procedures to be followed in offering the witness' testimony. The rules of evidence that may affect the witness' testimony should be explained to the professional witness; the limits imposed on the witness by professional rules and ethics should be explained to the attorney. (It should not be, but often is, necessary to point out to the attorney that the surveyor's first duty is to the court, not to the attorney or the attorney's client.) It is of paramount importance that the attorney knows the content of the witness' intended testimony including any weaknesses the witness sees in the case. It is also of paramount importance that the witness has ample time to review the case, read the documents, visit the site and form a sound opinion.
Qualification of the Expert Witness
One qualifies to testify as an expert in the U.S. Court system through a demonstration of "knowledge, skill, experience, training or education," according to Rule 702 of the Federal Rules of Evidence. A surveyor demonstrates his qualifications through a recitation of these qualifications on the questioning of the attorney. Professional registration or licensure, formal education, continuing education courses, participation in professional associations, articles or books the witness may have written as well as seminars and workshops the witness may have taught, and a description of practical surveying experience are all examples of qualifications a court wants to hear from an expert witness. The witness should be given an opportunity to make a complete review of qualifications. An opposing attorney may interrupt and offer to accept the witness as an expert, not wanting a jury to hear how well the witness is qualified. Another opposing attorney may question the witness on the qualifications. In any case, a witness' claim of qualifications should be complete and supportable. Through it all the attorney for whom the expert is testifying should be fully familiar with all the expert's qualifications and should draw them all out in her questioning of the witness during the qualification process.
Attorneys are inclined to walk away from a case with hardly a look backward, but for the expert witness it is important to review his testimony and its effectiveness-especially if the witness expects to testify in the future. Since a case may continue for days or weeks after an expert has completed testifying, it is often necessary to make an effort to contact the attorney for an evaluation of the witness' testimony and its effect on the outcome of the trial.
The surveyor as expert witness should have no difficulty working with an experienced trail attorney. First comes the engagement letter. Then comes the surveyor's evaluation of the case based on a full review. Finally, having found merit in the attorney's case, the professional surveyor offers testimony as an expert witness. With the right understanding between them, and with thorough preparation by the witness, the surveyor/lawyer relationship can be a smooth and satisfying one-professionally speaking.