I have testified as an expert witness in six cases involving land surveying practice or property rights. My article in the American Surveyor, “Road Riders” (5/15), detailed one those cases. Interestingly, I have never taken a single measurement in any expert witness case. Professional practice involves more than just taking measurements.
Consider the roles involved. The judge is the impartial decider of facts and the law. The attorney is an advocate who makes the client’s best case based. The expert witness provides an opinion that educates the court.
The first step is with the attorney who determines if the surveyor’s opinion will help, or damage, the case. If the former, the surveyor is contracted to proceed. If the latter, the surveyor is thanked for providing insights and asked to submit an invoice for time to date.
When asked to proceed, the surveyor produces a report supporting the opinion. A deposition follows which is an interview under oath. The attorneys ask a variety of questions. The deposition is documented and becomes part of the case record.
Note that at this point, the surveyor does not have expert standing.
In court the surveyor will testify as an expert as opposed to a lay witness. Lay witnesses testify to objective facts personally known. The lay witness’ opinion about any fact is not admissible as evidence. The expert provides an opinion about matters which lie outside common knowledge. Opinions exist in the thinking, imagination or understanding of the witness and are subjective in nature. Expert testimony is the only opinion evidence allowed by either side.
In court proceedings the term “expert” is elusive. There are no strict, statutory guidelines. The trial judge determines if a witness is qualified. I testified in a case that made that point.
I was retained by a fellow surveyor (call him Lenny) whose license had been revoked by the State Board. His license had been initially suspended and then revoked a few months later. Lenny retained an attorney to appeal the revocation.
Based on Lenny’s recorded plats, there was no question his work failed to meet the standard of care. His drawings were indecipherable. Apparently, Lenny was a capable surveyor in terms of field work, but his work products were hopeless. The Board suspended Lenny’s license until he demonstrated competence through, for example, continuing education. So far, so good. However, the subsequent charge that led to the revocation was not warranted. Here’s what happened:
Lenny lived and worked in a remote mountain area served primarily by only two surveyors. Call the other surveyor George. Following his suspension Lenny kept his office open earning a meager living providing field work not requiring licensure along with his hunting and fishing guide services, which he had always offered. He had grown up in the area.
George was preparing a boundary survey for a property neighboring one of Lenny’s projects. George found one of Lenny’s pins about 30 feet from the record location and reached out to Lenny to address the discrepancy.
Lenny had set boundary pins for a client who complained that the neighbor’s new driveway encroached on his property and wanted a monumented survey to settle the dispute. Lenny’s survey found that his client was wrong and the pin he set showed the driveway was on the neighbor’s property.
When Lenny went to the site he found the pin in an incorrect position and reset it in the correct location. Lenny was suspicious when he first heard about the problem. His client was extremely irate when the survey didn’t produce the desired result and being an enterprising mountain man, simply moved the pin to where he wanted it.
Lenny phoned George and explained the circumstances. At that point, George filed a complaint with the Board accusing Lenny of practicing land surveying with a suspended license.
No, I’m not making this up. The Board convened a disciplinary hearing and revoked Lenny’s license.
I explained to Lenny’s attorney that in my opinion a land surveyor is obligated to support his body of work as long as said surveyor is this side of the grave. For Lenny to ignore George on the grounds that his license was under suspension would have been unprofessional conduct. Lenny neither requested nor received any remuneration from anyone. Refusing to act would have been a greater sin. Lenny’s actions were the most professional conduct in the case.
Based on that opinion, I was retained to write a report and testify on Lenny’s behalf.
I was deposed by the Board’s attorney who must have realized that my opinion would damage his case. Being an advocate, he devised a strategy to give his client the best chance to prevail in court. I was surprised the Board chose to proceed after the deposition. Subsequent events cleared that up.
At trial, the facts in the case were not in dispute. I was the sole witness. The Board attorneys made a statement and produced a few of Lenny’s drawings. He didn’t call any witnesses and rested his case.
Lenny’s attorney made a similarly brief statement and called me to the stand. He asked me about my experience. I provided a brief resume. He thanked me and sat down. That’s when the trouble began.
The plan of attack was soon apparent. The attorney intended to show I was one of those engineers who swoop up the survey license as a CV enhancement but actually know very little about survey practice. (You know who you are out there.) The attorney must have figured that showing I was an engineer pretending to be a surveyor was his best shot.
The Boards attorney rose and asked,
“Mr. Jones, you are currently a project manager in an engineering firm — is that correct?”
“Yes sir.”
“How much of your time involves the practice of land surveying as opposed to engineering or simply management?”
“Well, that’s difficult to break down precisely. I suppose most of what I do involves more engineering but, you know, the survey work is all part of it.”
“I KNOW? No, Mr. Jones, I assure you — I DO NOT KNOW. That’s why I’m asking. Would you like the Court to believe that you spend 100% of your time in the practice of surveying?”
“Well, no, of course not. It just that it’s difficult to distinguish where surveying leaves off and the engineering begins on a day-to-day basis, not exactly.”
“NOT EXACTLY?” incredulously, “NOT EXACTLY?” he paused, leaning on his fists on the table as though I was trying his patience.
I should explain here that in my mind surveying is not a separate discipline from civil engineering. Civil engineering is a broad field which includes many disciplines such as structures, geotechnical, hydrology/hydraulics and traffic flow. For me, land surveying is one of those disciplines. In my practice, I am always a surveyor who is a civil engineer.
The attorney began again enunciating slowly as you would to a six-year-old,
“Alright Mr. Jones, are you able to tell the court EXACTLY what it is that you ACTUALLY DO?”
This guy was good. My every response was met with derision, sarcasm, and another challenging question. Lenny’s attorney object a time or two but the judge routinely “allowed the question.”
This was a new experience for me. Now, I have experienced a good chewing out in the past from party chiefs, clients, and my wife. This was different. This was more like a fist fight I got into in junior high behind the gym. Except of course this time there was no hitting. As this war raged on I discovered I was, oddly, enjoying it. (I mean the questioning not the fist fight. That didn’t turn out as well as I had hoped.)
Here I was not behind the gym but in a dignified setting, sitting in a witness box just below a black-robed judge surrounded by flags, polished wood furnishings, decked out in my best suit, wearing my lucky tie and responding to a series of challenges. This man was questioning my professional integrity in public. I desperately wanted to win. This was personal.
But as the questions continued, my sense was things weren’t going well. My lucky tie wasn’t up to this. The attack went on for what seemed an age (it was probably about 15 minutes) when finally, the weary judge interrupted and said, “Mr. X, you clearly do not believe Mr. Jones qualifies to offer an opinion. But I would like to hear what he has to say. So, let’s just get on with his testimony.”
And so just like that — it was over. I was an expert.
Things moved quickly. Lenny’s attorney asked my opinion. I testified that Lenny’s actions leading to the complaint were entirely appropriate professional behavior. He thanked me and sat down. The Board’s attorney had another go. He presented me with one of Lenny’s plats and asked if it met the standard of care. I testified that it did not, but that fact was not relevant to the charge. He didn’t go on much after that. I could see that his heart was no longer in it.
Both sides summed up, rested and the judge immediately rendered the verdict that revocation was not warranted. Success! Lenny has won back his suspended license.
So, who is an expert? On that day, in that court — I was. The judge said so.
Respect for the rule of law is essential to professional practice. In Lenny’s case, the judge might have formed the opinion that the charge was a technicality, and the revocation was justified based solely on Lenny’s blatantly incompetent work products. The Board of registration had come to that conclusion. Should a judge contradict a professional board? But that’s not what happened.
Instead, the judge shared my opinion that the black letter of the law must be respected in every case. Sailing away from that safe harbor leads to the treacherous waters where the Rule of Law is replaced by the Rule of Man. Lenny prevailed because the judge and I held the same opinion. The judge may have wanted a surveyor’s opinion before ruling against a Board. That is unknowable.
In our judicial system there are only two opinions that matter — the judge’s and the expert’s. The judge’s opinion is dispositive. The expert’s opinion is informative and often plays an important role in shaping the judge’s opinion.
For the expert witness, the question is whether the judge agrees with the expert’s opinion or not. That has to do with the persuasiveness of the testimony and that in turn is based on the witness’ credibility.
As for Lenny, I heard from his attorney a few months later that he had returned to the board, court judgement in hand and for a reversal. They declined. They ignored the court and upheld the revocation. I asked the attorney if they could do that and he replied, “Apparently.” I think as a practical matter, Lenny had run out of options. So, it goes. That explained why the Board decided to proceed despite my deposition.
Now for the lessons learned.
First, don’t feel sorry for Lenny. He will likely go on eking out a living as a hunting and fishing guide in his beloved mountains and will probably be happier not sweating over those awful drawings.
Second, the Board. The Board is appointed but is essentially a part of that vast, unaccountable bureaucracy that seems to increasingly govern our lives. They licensed unqualified man and revoked his license on a fabricated misconduct charge. There’s not much integrity in any of that.
Along the continuum between the Rule of Law and the Rule of Man, this Board did a swan dive into the treacherous waters of the Rule of Man and splashed about like college freshmen on spring break. Or piranha feasting on a cow that’s fallen into the Amazon. Choose your metaphor.
A more just decision would have been to reinstate Lenny’s suspension and initiate a disciplinary hearing of the County surveyor who approved Lenny’s plats for recordation. No one asked for that opinion.
Third, survey practice. Surveying is a profession to the extent it benefits the public. Credibility is the key which is based on a tripod of knowledge, communication, and personal integrity. It’s incumbent on each of us to base our practice on that tripod. When we do that, the profession prospers no matter which side prevails.
Success is always up to us.
James Jones is a licensed surveyor and engineer who lives in Washington. He previously wrote for the magazine here: https://bit.ly/4jn9oK8. He earned his PS in Colorado in 1982, and his PE, also in Colorado, in 1997.