Traversing the Law-Expert Witness Testimony
We’re going to take a turn in our “traverse of the law” and deflect from boundaries and boundary law, which we have been exploring for the past year, to head toward the courtroom.
It’s good for land surveyors to be sued because it creates valuable lessons for the profession as a whole (although it is not good if you are the individual land surveyor being sued). It’s much easier learning hard lessons from the mistakes of others than it is learning them firsthand. Nevertheless, being right doesn’t guarantee that you will not be sued. Many surveyors have been hauled into court and forced to defend their work only to be exonerated in the end. These cases, too, provide valuable insight into the workings of our legal system and the pitfalls awaiting the professional land surveyor, seemingly at every turn.
General ConsiderationsMost of the issues that affect the land surveyor in everyday practice are driven by state law as opposed to federal law. When dealing with issues of court, however, federal law has a great deal of influence throughout the various states. This is because many states have adopted the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) in whole or with minor variations. These are the rulebooks by which trials are conducted. Therefore, I’ll refer to these documents as our guide for this leg of our traverse. If your state hasn’t adopted the federal rules, then certainly your state’s rules of procedure and evidence will be applicable to your particular situation.
What are the qualifications necessary to be an expert witness? The simple answer is that if the judge says you are an expert, you are an expert--if not, then you aren’t. There are three federal cases1 that are considered to be defining when it comes to expert testimony. The first case, Frye v. United States, which was decided before the FRE were adopted, stated the rule that “the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it.”2 The court went on to say, however, that “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” In other words, cutting-edge technology and untested theory were out. Experts could only testify about principles that had gained “general acceptance” within the professional, scientific or artistic community.
Frye remained the law of the land until 1993 when Daubert v. Merrell Dow came along. In Daubert, the U.S. Supreme Court basically said that Frye was fine back in the day, but we now have the FRE and it will dictate who can and who can’t testify as an expert, and the FRE don’t say anything about “general acceptance.” Putting it succinctly, the Court said, “‘General acceptance’ is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.”3 Daubert was subsequently interpreted as setting up a “gatekeeper” role for judges when dealing with expert testimony based on “scientific” knowledge. This interpretation excluded the type of testimony that a land surveyor would offer, that of “technical” or “other specialized” knowledge.
Then came Kumho Tire Co. v. Carmichael. In Kumho the Court turned back to Rule 702 and said the plain language of the rule itself “makes no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge. It makes clear that any such knowledge might become the subject of expert testimony.” The “gatekeeper” role of the trial court judge was now firmly established. Who is qualified to give expert testimony? Anybody the judge says is qualified.
The Land Surveyor as Expert WitnessDoes this mean that non-licensed people can testify against (or for) a professional land surveyor? It certainly does. It also means that a licensed land surveyor can fail to qualify as an expert and, as a result, not be allowed to testify as such.
The issue of non-licensees testifying against licensed surveyors was addressed in the case of Hannemen v. Downer, Swenson and Jacobsen.4 Downer, the land surveyor, was on trial for negligence and other torts committed in the course of preparing a boundary survey. Downer contended that the expert testimony proffered by a BLM surveyor, Neil Forsyth, in opposition to Downer’s own testimony should not have been allowed because Forsyth was not a licensed land surveyor. Overruling Downer’s objection, the Court stated, “Downer’s contention lacks merit for two reasons: First, a person need not be licensed to qualify as an expert; rather, the witness must simply possess ‘special knowledge, skill, experience, training or education’ relating to the subject matter. Forsythe, a BLM surveyor for over thirty-five years, was qualified to testify on the subject of surveying methods. Second, employees of the federal government who have been authorized under federal law to conduct surveys need not be licensed unless they are performing private surveys within the state.”5 In the case of Bell v. Jones,6 often cited for “standard of care” issues discussed in the case, we also find instruction on the issue of expert testimony, both good and bad. Jones, the defendant surveyor, was being sued for negligence and other torts as a result of boundary surveying services. Plaintiff Bell, an architect practicing in the District of Columbia, offered the expert testimony of Rodney Hansen, a surveyor with 36 years of experience. “Jones contends that Mr. Hansen’s testimony failed in three respects to establish the appropriate standard of care for surveyors. First, he argues that Hansen was not qualified to testify at all about the applicable standard of care. Second, Jones asserts that Hansen merely testified what he himself would have done if he had been in Jones’ position, rather than what a reasonably prudent surveyor would have done. Third, Jones maintains that Hansen failed to establish the standard of care governing the preparation of plats of survey in the District of Columbia.”7
We need to consider Jones’ challenges to Hansen’s testimony one at a time. First, Jones argued that Hansen was not qualified based on Hansen’s testimony that 90 percent of his work was done in Maryland and Virginia and he had never conducted a survey for an architect in the District of Columbia (which was the issue in the case). In rebuffing this argument, the Court stated what we already know: “The decision whether to admit or exclude expert testimony is vested in the broad discretion of the trial judge, whose ruling must be sustained unless manifestly erroneous.”8 Second, and this argument almost carried the day, Jones asserted that Hansen “merely testified what he himself would have done” not what a “reasonably prudent surveyor would have done.” Hansen’s testimony was weak on this point. And here’s our first lesson of the day: if you are going to go to the trouble (and heartache) of testifying against a fellow surveyor, any testimony that falls short of establishing the standard and that the defendant fell below the standard will not cut it.
Jones contends that Hansen failed to establish the standard of care relating to the survey requested by Bell because he testified only what he would do under similar circumstances, not what a reasonably prudent surveyor would do. Testimony from an expert witness as to what he or she would do under similar circumstances is not sufficient to prove a standard of care…. But that was not the substance of Hansen’s testimony. It is true that Hansen responded to several questions from Bell’s counsel by saying what “I” or “we” would have done. When asked about his use of the word “we,” however, he said that he was referring to “surveyors in general,” and in his previous answers he had been talking about “what surveyors normally do.” Hansen also confirmed that his answers were based on his opinion “with reasonable surveying certainty.” While his testimony might have been a bit clearer, we are satisfied that it met the requirements.9
After sitting in court and listening to the expert testimony of Hansen, Jones wanted to get on the stand and testify himself as to the standard of care and what a reasonably prudent surveyor would do under like or similar circumstances. He was not allowed to do so. Next lesson of the day: if you plan on testifying on your own behalf as an expert, you must be qualified and you must follow the rules of procedure and evidence. Jones’ lawyer never qualified Jones as an expert, thus Jones was not allowed to testify as an expert. “In the present case, Jones never identified himself before trial as an expert witness, and Bell did not depose him as such; consequently, Bell had no way of preparing to cross-examine Jones about his opinions as an expert.”10 All he could do was testify as a fact witness and fact witnesses can’t give opinions on surveying standards.
Jones’ third contention was that Hansen had failed to establish the standard of care governing surveyors in the District of Columbia. This is actually where Hansen’s testimony was strong. “He said that in preparing a boundary survey, a prudent surveyor would examine the records in the District of Columbia Surveyor’s office, plot those deeds up in the surveys, go out into the field, ‘locate any field evidence’ such as property corners and fences, make necessary computations, and match them with the deeds. Once the actual boundary corners were determined, a prudent surveyor would go back to the site and check the information, and then write a description of the property. To verify the measurements, a reasonably prudent surveyor would go to the site and turn the angles three or four times to make sure that the ones on the plat were correct. This testimony, in our view, was sufficient to establish the standards that a reasonably prudent surveyor would follow in preparing a plat of survey.”11 Jones had, obviously, failed to perform these tasks.
Professionalism Isn't Bestowed, It's EarnedMy own observations and interactions with land surveyors dealing with the prospect of testifying as an expert witness are that most surveyors would rather have a root canal or hemorrhoid surgery. I think it has much to do with the “glass house” syndrome. We all feel that we live in glass houses and that makes us a little reluctant to start throwing stones. This is true, but it doesn’t change the fact that our legal system is set up as an adversarial system that pits one side against the other. Expert witness testimony is absolutely necessary for the system to function properly, for injured parties to get their just compensation--and for innocent land surveyors to be exonerated. Testifying as an expert is vital to the profession as well. The system helps to weed out the unqualified and incompetent, thereby raising the competence level of the entire profession. Professionalism isn’t bestowed upon a certain group, it’s earned by that group doing the hard work necessary to raise themselves above the crowd in an area of specialized knowledge and skill that is vital to society. That certainly describes the land surveying profession. And that hard work includes weeding out those who don’t belong because they consistently fall below the standard. If it were easy, anybody could do it.
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.