Tips for Effective Expert Testimony.
For this and my next article I am going to stray from my usual path of examining court cases and statutes and instead provide some tips for effective presentation of a survey to a court. In this issue I will describe techniques that I have found from my own experience to be useful for communicating survey principles to a judge. In the next article, I will describe what lawyers are attempting to do with cross examination, so that you can be better equipped to deal with the process when it is your turn on the stand.
As a beginning premise, I believe that effective, clear and convincing expert testimony is a part of surveying. Generally, all of us will agree that surveyors gather, preserve and analyze evidence of boundaries. In many cases that is enough. You act as the judge and interpreter of the evidence you find. You reach a conclusion which you memorialize by staking a line, drawing a map and recording some description of your work and conclusions.
Unfortunately, the process doesn't end there. Your client will act on your conclusion and will treat his relationship with his neighbors accordingly. This can and often does lead to disagreements; and in the surveying arena, the courts often are asked to settle disputes. More than any (non-legal) profession I know, boundary surveying is tied intimately to the courts. Every decision you make is subject to being second-guessed by a judge or jury. When, rather than if, your decisions are reviewed by a court, your client has the right to expect you to effectively and convincingly defend your conclusions. A boundary survey that has no chance of withstanding a court challenge is practically useless.
Evaluating EvidenceThe main procedural rule a surveyor needs to keep in mind while preparing a survey is the evidence rule precluding the use of hearsay in court. I termed this a procedural rule to separate it from rules of construction and rules of law. Of course surveyors need to know how the courts expect them to construe the words of a deed and how they should handle legal concepts such as seniority of title. But you cannot apply a rule, such as rule of construction that a monument will control the end of a line, until you have identified the item that brings the rule into play(i.e. the monument). Much of your work as a surveyor is the detective work involved in evaluating items of evidence that make it more or less probable that something you have tied to in the field is the correct monument. The rule against hearsay does not address whether some scrap of evidence makes your conclusion more or less correct; rather it addresses the use of the evidence in a courtroom setting.
Surveyors often express disbelief over many rules of courtroom procedure, including this one. After all, if the object of a trial is to discern the truth, why not admit all relevant evidence? This is a good question, and the reason hearsay normally is not admissible is because its use subverts the process a court uses to discern the truth. Courts want evidence to be presented under oath, directly scrutinized by a judge or jury and subjected to cross examination. Hearsay, which means any statement made outside of the hearing that is offered to prove the truth of the matter asserted, cannot be tested by this process. You, while performing a survey, might believe that the markings on a map you found during your research give you the proof you need to declare a structure a monument. But why should a court share your belief unless the map maker is present to testify under oath as to the background, drawing and construction of the map?
Consequently, while preparing your survey, you should start with the assumption that an out-of-court statement, whether it is made on a map, in a set of field notes or by a landowner, will not be admissible in court. Then you must begin looking for reasons, and there are several, that might lift any particular statement above the general ban against hearsay.
Most courts recognize several hearsay exceptions. Recorded documents affecting a property interest, statements in unrecorded documents purporting to affect a property interest (unless dealings with the property have been inconsistent with the document), statements in documents over 20 years old and reputation in a community concerning boundaries are all generally admissible as hearsay exceptions. Field notes are admissible as long as they fit under an exception for records of regularly conducted activities (whether a particular set of notes fits under this exception is a topic in itself).
The most useful exception to the rule against hearsay is the principle that expert witnesses can base their opinions on facts or data that are not admissible as evidence, as long as those facts or data are of a type that are reasonably relied upon by experts in the particular field. This principle provides a good working test for evaluating hearsay for your survey. Is this scrap of evidence--this map, document or oral statement--the sort of evidence that an expert surveyor would reasonably rely on? Perhaps you are evaluating an old map. Think about what minimum requirements you would like to see to make this map reliable. Do you know the circumstances of the survey behind the map? Do you know anything about the surveyor? Is the map signed? Does it provide you with information you can test with your own measurements? Make these sorts of lists and honestly evaluate every bit of hearsay evidence accordingly, before putting too much weight on any one bit as opposed to another.
Mental PreparationFederal Rule of Evidence 702 (and its counterparts in the various states' laws) provides a succinct guideline for preparing yourself for testimony. Quoting that rule: "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 operative phrase is "If... specialized knowledge will assist the trier of fact to understand the evidence." You are on the stand (hopefully) because you have specialized knowledge that is beyond the common experience of the judge (or the jury, if the trial involves one). Judges, in general, are not surveyors. They are not trained in reading field notes, in interpreting aerial photographs, in making measurements or in evaluating whether corner markers have been disturbed or whether their accessories still exist. They may not know much about boundary law. But it is still their job (or the jury's) to determine which scraps of evidence lead to proven facts and to determine the legal significance of those facts. Your job is to present the scraps of evidence and to give your interpretation of them in so far as that interpretation will help the judge and or jury to "understand the evidence."
This concept is easy enough when taken to its extremes. It is obviously not helpful for a judge to learn that:
- There is statistically a 90 percent probability that the distance between two iron pipes is 2642.10' when measured horizontally along the ground;
- Official government field notes stated that the distance between two corners was 40 chains;
- Three private surveyors at different times accepted two iron pipes as marking government corners;
- Notes attributed to a county surveyor in 1910 stated that he found a bearing tree at one corner and a mound at another, and set two iron pipes tied to fence corners;
- One of the three private surveyors reported measuring to fence corners from each of two pipes; and
- You found the remnants of a decayed fence post near one of two pipes.
If that is all the judge is told, he or she will wonder, "What's the point?" On the other hand, it is equally obvious that it is unhelpful for a judge to merely hear a surveyor's opinion that iron pipes mark the section and quarter corners. Without the supporting evidence, the judge will rightfully wonder, "How do you know that?' It is much more difficult to balance your exposition of the supporting evidence with your opinions to get the right mixture in a real case.
It is most helpful to think of yourself as a teacher. You will lose the judge's attention if you prepare your testimony with the mind set that you are merely going to "tell the judge what you did and let him decide." On the other hand, you will alienate the judge if you tell him or her what you think the decision should be. Instead you have to consider what there is to learn about the evidence you have gathered. Create an outline (or a set of notes) where you lay out each bit of evidence you used and, for each bit, think about what you can teach a person who has never been a surveyor about the importance of it, either individually or in concert with other bits of evidence. Most people enjoy learning something new. Furthermore, most people enjoy teaching others about a subject they find interesting themselves. Treating your testimony as an opportunity to teach the judge or jury what you find important about the evidence you have gathered generally will result in much more lively, interesting and convincing testimony. It also fits the evidence rules, for it "assists" the judge or jury to "understand the evidence."
A further benefit of preparing to testify as a teacher is that it forces you to think through the strong and weak points of your analysis. You have to first organize the evidence and then lay out a reason for giving each bit of evidence a certain weight. This takes time and study. You cannot testify effectively if you are not prepared in advance.
Preparation of TestimonyTrial lawyers have a number of studies examining the traits that make a witness effective, especially in front of a jury. Credibility is by far the most important. Years of expertise, hundreds of published articles and experience with dozens of cases means very little if the judge or jury suspect your credibility. Of course, this means that you must always be objective in your work, and that you must honestly consider opposing opinions and evaluate your own work as rigorously as you evaluate others. Much more subtly, however, you need to be enthusiastic about your testimony. By that I mean the judge or jury must sense that you are excited about what you are telling them. This works because people generally believe that a person who is enthusiastic about his or her work will be more likely to be truthful about it.
Also, witnesses are most effective if they give their full attention to the judge or jury and are not caught off guard by cross examination. I will cover cross examination in the next article. Giving your full attention is merely part of teaching your subject and engaging the judge's interest. You cannot expect the judge or jury to follow you unless you make an effort to draw them into your work.
There are good ways to "teach" a judge or jury, and there are ways that are deadly boring. You will not have much time to get your point across. You must condense your points to those that are most vivid and memorable. You have to get all the important evidence in, explain the importance of each bit you use and you have to omit (or condense to a sentence) everything that is less relevant.
Having heard a number of good testifying surveyors, I have concluded that effective courtroom exposition of a survey problem usually involves telling a sort of detective story. When you do a survey, you gather a lot of evidence. You organize it. You study it. You reach some preliminary conclusions and use them to look for more evidence. Then you reach a conclusion. Much of the evidence is historical, while much of it involves measurement and mathematics. Historical evidence is vivid because it suggests a story about someone in the past. That is, an old map is not just a drawing on paper, it is a record of someone's past dealings with their property, or part of their life. Physical evidence can be vivid if your description includes the effort you undertook to find it and your investigation of how it came to be important. Physical evidence also has the wonderful quality of being something you can photograph. Mathematical evidence, especially in the form of statistics, is generally not vivid to people who are not mathematicians already. Measurement evidence is seldom meaningful to non-surveyors.
When you investigate these bits of evidence, you are often playing the part of a detective of sorts. A lot of the fun of surveying, for many of us, comes from the historical sleuthing. This sleuthing can either lead to an exposition that is little more than a list of conclusions, or it can lead to an interesting historical story where you communicate the fun of solving the survey problem. For instance, you could state that the original surveyor of a line used a solar compass and from studies and experience, you are of the opinion that such a line is likely to have a certain probability of error. This might be informative, but it is also likely to be dull. You could, instead, describe or even demonstrate how to use a solar compass and, while doing so, explain how a good surveyor, working with such a tool under difficult conditions might set a monument where it is found today, even though his notes might lead one to a different position.
The latter method, because it involves the judge in visualizing a (rather nifty-looking) tool like a solar compass will almost always be more interesting and consequently more convincing. Good stories require vivid images. If your testimony concentrates on the historical narrative you developed and further shows (through photographs and descriptions) the physical evidence you found, you will almost always involve the judge or jury much more effectively than if you testify about traverse computations. Not only is the method of testifying by telling the story of the survey more vivid, it often better draws out the enthusiasm of the witness, and thus nearly always appears more credible to the judge or jury.
ExhibitsSurveying testimony lends itself to illustration. There are generally good and bad ways to prepare exhibits. First of all, an exhibit should always be prepared in advance. There are several problems with drawing an illustration on a flip chart while you testify. The first is that you forget things and are more likely than not to make some statements that do not make sense when reviewed in a written record of your testimony. (The most common being to point to something you have just drawn and state that the "monument was here" without describing for the record exactly where "here" was.) The second is that judges and juries tend to watch you draw rather than look at your drawing. Your movement, your activity, maybe the bald spot on the back of your head, will nearly always be more interesting than what you draw. When you finish, many in your audience will not have as good an understanding of your story as you thought, and you will generally not realize it. Finally, large drawings are clumsy to use and to put in the record after you have left the stand.
My personal preference when I testify is to prepare large copies of exhibit maps using a color plotter, and identical 8 1/2 x 11" copies using a color printer (both sets have a graphic scale bar so that one can be merely an enlargement of the other). I make multiple copies of the small maps and one of each of the large maps. The attorney I am working with hands out packets of small copies of the maps to the judge and opposing attorneys (if there is a jury, some courts will allow it to have a set). Then, when I testify, I illustrate my testimony by pointing to the large copies of the maps which I have hung on the wall. This way I can keep track of my testimony (to avoid making statements that do not make sense from the record). In all cases where I have used this technique, the judge keeps his or her own notes directly on the small copies of the drawing given by the attorney. The obvious advantage here is that when the judge is later reviewing his notes, he is also looking at my exhibit.
Preparing the exhibits in advance, like outlining your testimony in advance, forces you to analyze your testimony for weak points before the trial. It also gives you a chance to look closely at what you are trying to illustrate. Perhaps you can highlight a particular line or remove some bearings and distances that you would have on your survey plat, but which detract from your story of the survey.
Photographs of physical evidence such as monuments are other useful, and sometimes essential, tools. Once again, they should be prepared with a judge or jury in mind. It is nearly always best to come back to the scene after you have planned your testimony to take your photographs, if the budget will allow it. Then you will be more likely to take photographs that actually illustrate your point--not just snapshots. If the monument's bearing from a fence post is important, you should have a photograph of both the monument and the fence post, and it should have something in view to illustrate directions (you can even use a 4x4 with a "north arrow" nailed to it).
Finally, never rely on technology just because you can. Even simple overhead projection slides can cause headaches in a courtroom. You will probably find the room difficult to darken; there will be no screen; the bulb will burn out; and your fiddling with the slides will be distracting. You can sometimes make an effective point using overhead projections by overlaying one drawing over another or over a slide of an aerial photograph. Other than actual overlays, however, standard drawings are nearly always more effective. I prefer not to use computerized presentations, where one projects on a screen "bullets" in the form of lists of points you are trying to make. I believe it steps too far out of the concept of "teaching" the judge or jury what they should look for in drawing their own conclusions from the evidence. It also steps too far into the trap of "telling" the judge or jury what you think they should decide. A bulleted list has the danger of appearing to make your points too forcefully and thus can hurt your credibility.
Unfortunately, there may be times when you will be required to testify when you have not been given much preparation time, often because some attorneys themselves do not prepare for cases in advance. If you have any control over the situation, you will want to only accept employment as an expert witness from attorneys that give you a reasonable schedule in advance. If you don't have control and have to prepare your testimony with little time, a narrative that you have (hopefully) prepared to go with your survey will prove invaluable. One lesson here, of course, is that I believe a survey narrative is a useful addition to any survey map or file. Another is that you should only accept employment as an expert witness from attorneys that agree to allow you to work with their preparation of the case from the start. You cannot "wing it" in court, at least not very often.
Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.