A problematic situation arises when a surveyor is asked to testify on behalf of a plaintiff in a tort case in which another professional surveyor has been charged with negligence or breach of duty...



Much has been written about the surveyor or engineer as professional witness in civil court, but one aspect of the subject has been avoided, perhaps deliberately. That subject is the propriety or desirability for the professional to testify as expert when the case is a negligence suit against another professional. Professional surveyors are often called upon to testify in response to a land dispute and those surveyors may, in those cases, testify in support of their own surveys or in response to surveys by others.

The more problematic situation comes when a surveyor is asked to testify on behalf of a plaintiff in a tort case in which another professional surveyor has been charged with negligence or breach of duty. Some in the profession believe that testimony for the plaintiff would be an act of treachery against a fellow professional or an attack on the integrity of the profession. Such testimony may create enmity between professionals and is inclined to terminate friendships. The professional with a reputation for offering testimony for plaintiffs against other professionals may notice an arm's-length distance between herself and other members of the profession at association meetings. Terms such as "hired gun" and "scumbag" may be overheard. Who needs such grief?

The answer to all these objections begs another question: If a professional surveyor isn't willing to appear in court to explain the duty of care of a professional surveyor, and to testify as to the failure of a defendant to meet that duty, who will define these things for the court? Lawyers and judges do not ordinarily have a clear understanding of the standards of care expected in the field of surveying. People do make mistakes, people are injured and lawyers do bring charges. Some of us must be willing to take a position in order to clarify the issues for the court, otherwise negligent or sloppy surveying will go unpunished (to the eventual detriment of the profession). Some will say to leave it to the boards of licensure to punish the malefactors among us. But a client who has suffered loss because of a poorly executed survey will be looking for damages through tort litigation, and will be less interested in bringing charges before a board that provides no compensation beyond non-remunerative satisfaction. We should remember that licensure is a privilege granted to us by the state on the presumption that our first duty is to the public. We have a responsibility to police our own profession. We are quick to congratulate our noteworthy members with awards; we must be willing to support charges against the blameworthy among us as well.

Needless to say, it is a much more comfortable position to provide expert testimony in defense of another professional charged with negligence or breach of duty. The same rule applies in this case: The court requires definition of the standards of care in surveying, and needs someone to give expert testimony to show that the defendant surveyor met his duty. (The professional charged with negligence is not ordinarily allowed to testify as an expert in his own defense because he lacks objectivity.)

Whether testifying for the plaintiff or the defendant, the same process is required of the professional witness. First, she must enter into an agreement of services with the attorney who hires her to testify. (An expert should be employed by the attorney, not the attorney's client.) Both parties will agree to terms and execute a letter of agreement. Next, the expert will make a case evaluation, studying the charges, the defendant's answers and all the documents relating to the case-before agreeing to testify. Satisfied that she can give unbiased and knowledgeable testimony, she notifies the attorney of her willingness to proceed.

I wrote at length on this subject in the March 2000 online issue of POB (click to read "Surveyors as Experts, Lawyers as Clients") discussing the surveyor/attorney relationship, the fee arrangement, case evaluation, preparation, qualifications and post-trial follow-up. I will not repeat that treatise here. The purpose of this article is to convince my fellow professionals that testifying on behalf of a plaintiff or a defendant in a negligence case is a necessary and honorable task. In fact, I would point out that one's credibility in the courtroom might be enhanced for the witness with a record of testifying for plaintiffs and defendants. It is not a good idea to become known as either a plaintiff's witness or a defendant's witness; juries are inclined to hold in higher respect the unbiased professional willing to stand on either side of the charges and let the chips fall where they may.

As for the "hired gun" accusation, it is an overrated insult. The courts are well aware of the role of the expert witness and are quite willing to explain their value to a jury. A cross-examining attorney who had reviewed my history of professional testimony once directed the epithet at me. When he suggested I was a hired gun, the attorneys for whom I was testifying exploded, the judge came out of his chair and several jurors showed expressions of disgust. I was only interested in the jurors' reactions, hoping their disgust was directed at the attorney for his crude remark rather than at me for my years of courtroom experience. In our post-trial conferences we learned from one juror that the whole jury was disgusted at that attorney's attempt to degrade my testimony. Perhaps they saw it as an insult to their own intelligence. In any case, I have learned not to worry much about the tactics and antics of cross-examining attorneys. They are doing their jobs as advocates; I am on solid ground if I am totally objective and well-prepared to do my job as a professional witness. But I have to be willing to serve in that position in the first place. I recommend the practice to all qualified professionals with a concern for their profession-and a reasonably thick skin!