LAND SURVEYORAS AN

EXPERT WITNESS

Copyright Nettleman Land Surveying, INC (2016)

WELCOME TO A (STRANGE) NEW WORLD

• Judgment as a matter of Law

• Laches

• Daubert ruling

• Injunctive relief

THE EXPERT’S ROLE IN EACH PHASE

• Pre-Trial: Research, Research, Research

• Trial: Communicate, Explain, Tell the Story

• Post-Trial: Document, Document, Document

FIVE TRICKS OF THE TRADE

• Be Prepared

• Document, Document, Document

• Tell The Whole Story

• Be Yourself

• Communicate

U.S. COURTS OF APPEALS

• Party who loses in district court has an AUTOMATIC right to an appeal

• 13 U.S. Courts of Appeals– 12 are geographic– One is a specialty court (Federal Circuit)

• United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”)

STATE COURTS

• Each state has its own, independent judicial system.

• Cannot be bound by the federal courts.• One state system cannot bind another court

system.• Structurally, each is a bit different.– But, most have three levels.

DISCOVERY

• Discovery is the stage of the case where all the parties gather facts, law and other info to support their claims or defenses

• Methods include depositions, interrogatories, request for production, requests for admission, physical examinations and more

WHO CAN BE A WITNESS?

“Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.” FRE 601.

UNDERLYING FACTS AND DATA

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to

disclose those facts or data on cross-examination.

SPECIALIZATION

• Licenses: SIT, RPLS, Cfeds

• Certificates: GISp, University, CEUs

• Work-experience focus: “I’m an expert because I do this work every day”

THE EXPERT WITNESS

DAUBERT vs FRYE

DAUBERT• Testimony based on:

“general acceptance”

• Tests: (1) general acceptance of (2) theory or technique

FRYE• Testimony based on:

“scientific method”

• Tests: (1) theory or technique is (2) scientifically valid

DO NOT ASSERT VAST KNOWLEDGE

• This will only trap you.• Avoid answering every

question with absolute certainty.

• If you are not too positive, you will have room to add a detail that you may have overlooked earlier.

FEES

• Have a definite fee arrangement, never a contingency.

• Answer questions about your fee straightforwardly.

• You are a professional entitled to a professional fee.