Traversing the Law-Testifying in Court
If you are in court as a land surveyor, you are there either as a plaintiff, as a defendant or as a non-party expert. If you are in court as a plaintiff, more than likely you are suing some individual or entity for a breach of contract or to collect money. The more interesting and instructive cases, at least from the standpoint of avoiding court in the first place, involve the surveyor as a defendant.
This includes defending your work, defending a boundary determination or defending against a charge of negligence or some other tort. The surveyor as a non-party expert is certainly the most desirable position to be in given the other two alternatives, but even this role isn’t without its heartburn and heartache. After all, who wants to testify against a fellow surveyor? But as we discussed last time, expert witness testimony is necessary for the betterment of the profession and for the protection of the public.
Expert Testimony is EssentialA threshold issue in any professional negligence action, be it against a doctor, lawyer, engineer or land surveyor, is that expert testimony is necessary in order to establish the standard, and further, establish that the professional fell below that standard. Professional negligence cannot be established by lay testimony or by the other side simply throwing down a copy of some standards. Something more is needed. “The trial court at the first trial dismissed the negligence count against the surveyors because plaintiff failed to provide expert testimony establishing that the surveyors were negligent. We affirmed, finding that, based on the evidence showing the difficulty of the surveyors’ task, the trial judge acted properly in requiring expert testimony to establish negligence.”2
When a person rendering the service holds himself out as having superior knowledge, training and skill, he is held to a standard that expresses this. This has been consistently true of the traditional professions; it has more recently been applied to the groups newly aspiring to the title of professional, and is coming to apply to artisans and craftsmen…. When the professional is engaged in work that is technical in nature--not a matter of “common knowledge”--a lay jury is not in a position to understand without explanation the nature of the work or the application of the standard of care to this work. For practical reasons, a plaintiff must offer expert evidence on these matters or the judge may well decide that the jury does not have sufficient evidence on which to make a determination as to negligence and will direct a verdict for the defendant. As a general rule this is the extent of the requirement of expert testimony.3
Professional Negligence vs. Difference of OpinionThe results of land surveying activity are generally reduced to a “map of survey” or a combination of maps and reports that constitute the land surveyor’s opinion on the boundary issues involved. It is important for us to keep in mind that, as with all opinions, they should be subject to change, especially if new and better information is brought to light through additional surveying activity. This could be the surveyor’s own additional activity or the activity of others working in the same area. Most of the survey standards that I have read or am familiar with require the land surveyor to come to a decision as to the proper placement of new boundaries or the true location of existing boundaries. As we know, this is not an easy task and requires the gathering and evaluation of evidence that will lead us to the conclusions that we must ultimately make in order to render our opinion.
Once boundary decisions have been made, however, many surveyors are more than just a little reluctant to change their opinion. They actually take the position that their decisions have been cast in stone and cannot be changed no matter the amount of evidence to the contrary. (I think the placement of monuments at the end or during the process of surveying boundaries tends to reinforce this feeling of unalterable permanence.) This new evidence may cause the surveyor’s previous decision to be suspect, highly questionable, or even wrong. The natural question to flow from this is, When does a difference of opinion constitute negligence?
As more than one court has observed, a mere difference of opinion does not necessarily constitute negligence. And even if the opinion turns out to be wrong, this will not necessarily rise to the level of negligence.
Although S.E. Downey compares this case to a common boundary dispute in which a court hears conflicting opinions of two surveyors, the comparison is not appropriate. We agree with S.E. Downey that simply because a court agrees with one surveyor more than another surveyor does not mean that one has committed professional negligence. However, a boundary dispute case and a professional negligence case are not the same because in the latter there must be evidence that the surveyor deviated from the standard of care. In this case the court did not merely disagree with S.E. Downey’s methods or results; it concluded, based on the evidence, that S.E. Downey had not lived up to its professional obligation. The court made that determination after a thorough review of S.E. Downey’s method and results and, importantly, after hearing from an expert as to how and why the S.E. Downey survey fell below the standard of care.4
Just because two experts get on the stand and give conflicting opinions does not mean that one is telling a lie and the other is not. Juries expect experts to give conflicting testimony. Similarly, two surveyors coming to two different opinions as to the location of the true boundary line is not to be totally unexpected and does not in and of itself constitute negligence, even if one of those opinions turns out to be wrong. As the court in the Downey case (above) suggests, it’s when the land surveyor fails to live up to our collective “professional obligation[s]” that we approach negligence.
The elements of professional negligence are the same elements common to all torts with one exception. In other torts, the plaintiff must establish that a duty was owed to the plaintiff by the defendant. In the professional negligence action, the duty owed by the professional is assumed.
A claim of surveyor liability is founded on the three elements common to any tort: a breach of duty, causation, and damages…. More specifically, to recover in an action for professional negligence, the plaintiff has the burden of proving: (1) the standard of care within the profession; (2) the defendant’s failure to adhere to the professional standards; and (3) that the defendant’s failure to adhere to the professional standards proximately caused harm to the plaintiff…. We note that a mere difference of professional opinion does not establish professional negligence. Moreover, professional negligence is not established by proving that a professional opinion turned out to be erroneous. Rather, to recover for professional negligence based on an incorrect professional opinion, one must establish that the professional fell below the standard of skill and knowledge commonly possessed and utilized by members within the profession when rendering his opinion.5
If the expert testimony fails to establish (1) the standard of care and (2) the defendant’s failure to adhere to that standard, it doesn’t matter if there were (3) damages, the surveyor will not be held liable for negligence. In the Winemiller case, this is exactly what happened. “Although neither expert specifically opined that Thomas Winemiller was negligent for not discovering the overlap problem, they both indicated that a properly conducted survey would have uncovered the problem.”6 Not good enough. Neither expert “specifically opined” that Winemiller was negligent, therefore Winemiller, by definition, wasn’t negligent. All three elements must be present and the first two have to be established by expert testimony. The burden of proving damages is on the plaintiff and plaintiff’s attorney. Needless to say, damages can be substantial.
To Testify or Not to TestifyIn both of the cases cited above, Downey and Winemiller testified on their own behalf as experts. This has its advantages and disadvantages. As I indicated earlier, two experts can get on the stand and give conflicting testimony. Which one does the jury believe? Whichever one they want to believe! If you are not a good communicator or are not believable, you can do considerable damage to your cause on the stand. You may be in the right but lose the case because the other side was more convincing. Another pitfall in testifying on your own behalf is that you may be too close to the situation and have a gaping hole in your position that you have not seen. If you are expecting your attorney to know as much about surveying as you do and, therefore, be able to see all of the holes in your position, you may be headed for great disappointment. A third-party expert can bring fresh observations to your situation and help you fill in the gaps, or at least be prepared for an attack on your weak position. Of course you could be the only one who holds your particular position and you may be forced to testify on your own behalf as a result.
The rules governing expert testimony will be found in your state’s rules of evidence and rules of civil procedure. There are other rules governing the subject, but the gist of expert witness testimony is found in Rules 702, 703 and 704 of the Federal Rules of Evidence.
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 reliably to the facts of the case…. 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…. [T]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The major difference between fact witness testimony and expert witness testimony is that the expert can testify to facts or data made known to the expert and not simply perceived by the expert. In addition, the expert can give an opinion that embraces the ultimate issues in the case. The fact witnesses will get on the stand, tell what they know, and, unless they are a party in the case, must leave the courtroom. These types of witnesses, even if they are parties to the case, such as a land surveyor, cannot give testimony that deals with “scientific, technical, or other specialized knowledge…”7 or testify as to the ultimate issue in the case. In a negligence case this would include the standard of care and whether or not it was breached.