The Surveyor and the Law

July 27, 2001
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Jerry R. Broadus
Rules of evidence control the presentation of evidence in court. In general they do not affect the evaluation of evidence once it is admitted; consequently many surveyors perform admirably without ever worrying about them. When you survey a property you are the judge of the evidence, and you will probably consider all you can find. Occasionally, though, you will have to explain your survey to a judge, and in those instances it is helpful to have a working understanding of some of the evidence rules.

The most important evidence rules for surveyors concern expert witnesses. When a surveyor gives a court his or her opinion as to the “correct” way to survey a property, he or she is playing the role of expert witness. Experts have a wider latitude in testifying than “lay” or “eye” witnesses, and this can be beneficial when you are justifying the use of a particular monument or method that another surveyor opposes. The most notable advantage of being declared an expert is that you can base your opinion on evidence that is otherwise inadmissable, which usually boils down to using hearsay.

Evidence rules compile a long common law history of rulings from reported cases into a concise, easy-to-follow form. Various institutions write compilations of different aspects of the common law, for example the “restatements” of such areas as property law or torts, some of which require volumes in their own right. The rules of evidence were originally a similar attempt to compile the common law on the presentation of evidence in federal courts. Many states followed the example, often copying the federal rules with few, if any, changes. Unlike the restatements, which are treatises and may or may not be adopted by the courts on a case-by-case basis, the evidence rules, in the federal courts and in many state courts, have been codified as a group.

The result is a uniform system for presenting evidence in courts across the country. The common law of evidence is fairly uniform in its own right, with only minor variations across jurisdictions. And with the evidence rules you can look up the way to handle some difficult topic, such as hearsay, in a single volume without having to resort to sifting through copies of past Supreme Court opinions. That is not to say that, once codified, the evidence rules are static. Committees that write these rules will suggest changes over periods of time, usually based on recent court rulings. The Federal Rules of Evidence have received some changes recently, which are the topic of this article. Of course, a change in a Federal Evidence Rule does not automatically mean that the practice in state courts will change. However, in many jurisdictions the Federal Rules will be treated as a sort of “model law” of evidence and eventually any states will follow suit. Also, the changes to the Federal Rules discussed here represent decisions on the practice of serving as an expert witness that should be of interest to anyone in that field, for they summarize some important pointers of good witness conduct.

Some Changes

Article VII of the Federal Rules of Evidence covers opinions and expert testimony. In theory, lay witnesses testify about their own observations while expert witnesses also give opinions as to how their observations, as well as the observations of others, should be interpreted. This gives expert witnesses several advantages on the stand. In the case of a typical survey, the difference is often one of the attitude of the testifying surveyor. A surveyor who approaches his or her clients, and consequently the court, with the attitude that he or she merely states the “facts” and lets the court decide the correct “outcome” is acting as a lay witness. I would hope that such a surveyor would have an opinion as to what is the “correct” way to perform any survey he completes. And I would suspect that the surveyor’s client would expect the surveyor to be willing and able to express and support that opinion should the survey be challenged.

The Federal Rule differentiating experts from lay witnesses is ER 701. Before the changes, which took effect at the end of 2000, the rule read as follows:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

The new rule states:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

This change clarifies that a lay witness is not to delve into technical or scientific opinions; those are the realm of the expert. The rule essentially limits lay testimony to describing what went on during some event. Any interpretation of “what happened” must fall within common understanding (you don’t need to be a meteorologist to know that when it rains the street will, in all probability, get wet) and must be based on the witness’ own perceptions, not on the work of others.

The change in Rule 702, Testimony By Experts, is the result of some recent Supreme Court rulings. The older rule read:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The new Rule states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliable to the facts of the case.

This change is a direct result of Daubert v. Merrell Dow Pharmaceuticals, Inc.1 Daubert was a federal tort case over birth defects allegedly caused by a pharmaceutical. The issue involved the admissibility of competing studies of the medicine, some of which used established techniques while others were more novel. The case presents a good overview of what is called the “gatekeeper” function of the judge in evaluating offered expert testimony, as well as an excellent comparison between scientific and courtroom “proof” of an issue.

The primary locus of this [gatekeeper] obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. “If scientific, technical, or other specialized knowledge will assist the trier of fact to determine a fact in issue” an expert may “testify thereto.” ... The subject of an expert’s testimony must be “scientific... knowledge” The adjective “scientific” implies a grounding in the methods and procedures of science. Similarly, the work “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of know facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”.... Of course it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably there are no certainties in science.... But in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation– i.e., “good grounds,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.2

The Court then discussed the latitude granted an expert witness:

Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on first-hand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of first-hand knowledge– a rule which represents “a ‘most pervasive manifestation’ of the common law insistence upon ‘the most reliable sources of information,’” ... is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.3

This latitude, of course, presents the danger that the expert might use his powers of persuasion to lead the jury toward an unsupportable conclusion that benefits the client who is paying his fee. The court created several factors to protect against this possibility, for trial judges to use when evaluating whether some offered expert testimony has a sufficiently “reliable basis in the knowledge and experience of his discipline.”:

Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested....

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication....

Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error....

Finally, “general acceptance” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.”4

The court then addressed questions as to whether requiring trial judges to “screen” such evidence according to the above factors would repress scientific inquiry. This is its discussion of the differences between scientific and courtroom methods of proving an issue:

It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment– often of great consequence– about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.5

A later United States Supreme Court case clarified that the Daubert factors were to be applied to technical, specifically engineering, testimony as well as to the scientific.6

Surveying Connection

You might wonder what all this talk of “gatekeeping” by a judge over expert testimony has to do with surveying. What it does is force you to learn the mathematical and scientific underpinnnings of the trade and learn them very well. Measurement, due to the advancements in technology and its reliance on statistical methods, is ripe for courtroom challenges. Even when you measure the area of a lot using conventional traversing, you need to be able to explain how you have tested your methods and equipment, what precision they support, and why you know your answer is correct. This goes equally or more so for the use of GPS measurement. You cannot rest on the statements in an advertisement. You have to know, and be able to articulate, how your “magic box” works, what its error rate is, how it has been tested and how it has been accepted in the surveying community.

Our increasing dependence on computers invites us to become complacent with our knowledge of exactly how our answers are derived. You can scarcely pick up a trade or professional journal on surveying or Geographic Information Systems without reading of some new computational way to solve problems we all used to approach by inspection, feel and educated common sense. These newer methods might be fine, but never expect them to be convincing or even admissible in court unless you know, and can explain, exactly how they work, what their weaknesses are and why they are appropriate. I routinely order historical aerial photographs of areas I am surveying to look for changes in occupation and movement of boundary indicators over time. I prefer, however, not to testify as to measurements to features visible today, only on those photographs because the precision of the methods often do not meet the court’s expectations. An expert opinion, while it is an opinion, must be based on proven methods as well as solid evidence.

More Changes

Evidence Rule 703 concerns the basis of expert testimony. The older rule read as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

The present rules follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Rule 703 allows an expert to rely on hearsay and on the work of others in the profession, if it is of a type that other experts in the field normally find reliable and useful. This rule is extremely important for surveyors, for most of the basis for surveying is found in historical evidence that is often, strictly speaking, hearsay. The expert has always had to be prepared to provide foundation evidence that the hearsay, such as an unrecorded survey document that he is using, is a type of document normally used in the surveying profession. The newer wording of the rule restricts the expert’s use of hearsay, for it allows the judge to prevent the attorney from admitting the actual document the expert is relying on. This makes it clear that the court, in a hearsay situation, is really asking for your opinion of the hearsay evidence and your reason for using it, but not the hearsay document itself.

Related to these Evidence Rules for experts is the portion of the Federal Rules of Civil Procedure that involve discovery of expert testimony in advance of trial. A few years ago FRCP 26 was amended in regard to what an expert witness could be required to provide the opposing party during pre-trial preparation. This rule has already been adopted by some states:

FRCP 26 (2) (B):

Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publication authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

This disclosure is to be made at least 90 days in advance of trial. Of course, since both sides in any case are often working up to the last minute on their preparation, many attorneys will simply stipulate that they will not require the other to adhere to this rule in exchange for similar consideration. Nevertheless, the rule is a useful way to reinforce the need for extensive advance preparation on the part of any expert witness. You cannot comply with this disclosure rule without thoroughly analyzing the strengths and weaknesses of your opinion, and this rule forces you to do that early in your case preparation.

My opinion is that surveyors working for the public should be willing and able to convincingly support their conclusions in front of a judge. A survey that is not supportable in court is little more than an exercise in applied math rather than a useful product. Of course, the surveyor deserves payment for the time spent preparing for court and while testifying. Expert witnesses can, in general, demand payment and their clients should be apprized of that from the beginning contract. Unfortunately, some experts, including surveyors, have used the forum to expound opinions that are not clearly thought out and that may sound better than they really are. These new evidence rules make it clear that an expert should never accept a job before knowing that their opinions can be based on sound, well-researched methods and evidence.

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