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Expert Witness Professional Services Agreement
Posted by Deano on March 30, 2017 at 5:42 pmI completed a survey in early 2015 for a client in a dispute with his neighbor. The client wanted the survey to show the relationship of an ancient fence relative to aliquot part lines described in the record deeds. Basically a survey showing what they’ve used and farmed over the past several decades that is different than where record lines would be located on the ground. It appears the case is going to court and their attorney has given me a head’s up that they will probably be calling me as expert witness.
I’ve never been called as an expert witness and don’t have an idea as to what form an agreement should be. Would anyone have any type of agreement they would be willing to share or advice to give on what you would put in an agreement for being an expert witness?
eapls2708 replied 7 years, 3 months ago 22 Members · 25 Replies -
25 Replies
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Look at the court appearance as and extension of your agreement to survey the land.
As a licensed surveyor you have a duty to your client and to the public and it would probably be best that you are not under contract with you client and show that you are present to recall your survey and to back your decisions with facts and the law.
As an expert witness you are representing your client much the same way the attorney is and should charge accordingly.
Be prepared to answer to any form of criticism thrown at you by the opposing attorney and tell the truth and remember your answers as you will be tested to your limit and be calm as possible and do not let the situation get to you.
At best you will cause the opposing attorney to become flustered because he can not break you down and cause you to contradict yourself.
good luck
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Always pause and think, before every answer.
Never answer 2 part questions, where one part is true, and the other part is less true.
Take your time, when on the stand. A frustrated atty. Is a lovely thing! -
I got one crying one time.
“So, you are saying that this line is the true line?”
“No”
“What are you saying?”
Xx line is RECORD TITLE
“And Dd line is apparent occupation”….
Ad nausium… -
Deano, post: 421106, member: 6369 wrote: I completed a survey in early 2015 for a client in a dispute with his neighbor. The client wanted the survey to show the relationship of an ancient fence relative to aliquot part lines described in the record deeds. Basically a survey showing what they’ve used and farmed over the past several decades that is different than where record lines would be located on the ground. It appears the case is going to court and their attorney has given me a head’s up that they will probably be calling me as expert witness.
I’ve never been called as an expert witness and don’t have an idea as to what form an agreement should be. Would anyone have any type of agreement they would be willing to share or advice to give on what you would put in an agreement for being an expert witness?
Agreement should contain a fee for court preparation time, then another for court time (usually double prep time rate). Court time should include a clause of minimum of half day, whether on call or actually called. Also a good idea to require pre-payment.
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Run away, that’s also good advice. hehehe.
But, as said, I think one of the most important things to remember is that the attorney for the opposing party will work very hard to fluster you, lead you into ambiguous statements, and attack your character/process/experience in order to degrade your professional opinion. I’ve been on the stand for one survey and it was a bit nerve-wracking, but I was pretty happy that I got the other attorney flustered when I continued to calmly state that he was misinterpreting an email I had sent.
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It sounds like you will serve 2 functions. Keep them separate.
First, you will be a fact witness. This relates to the facts at hand. On these questions i often refer to my file on conplex answers.
Second is as an expert. This relates to you and your knowledge base. Be ready to explain the foundations of pertinent law with citations.
You’ve gotten good tips on the agreement. I would have my own attorney weigh in on how to avoid getting yourself entangled liability wise.. -
x2 on the double-time rate for deposition and testimony time. It’s a painful experience so be compensated accordingly.
I worked on an expert team for some post Hurricane Katrina litigation. One of our key expert engineers was charging $500/hr. He billed over 2,000 hours on the project. I’ll let you guys do that math…
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Before answering any question, give the other attorney a moment to object, so you don’t get cut off mid sentence. Also don’t be afraid to ask them to repeat the question, especially if they spent several minutes arguing over an objection before you are finally allowed to answer.
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Nate The Surveyor, post: 421112, member: 291 wrote: Always pause and think, before every answer.
Never answer 2 part questions, where one part is true, and the other part is less true.
Take your time, when on the stand. A frustrated atty. Is a lovely thing!Always pause.
Always.
I often close my eyes when answering a complicated question to ensure I am not distracted by a pesky attorney.
Don’t interrupt the judge.
Do not be anything but impartial.
Do not be afraid to state you do not know something, unless it is something you should know. (I was qualified as an expert in title during an appearance. When the question came up about the strength of warrantee vs quit claim and the previous witnesses had been all over the map with their opinions, I simply stated that it was outside of my expertise in the subject. The judge commended me in his decision.)
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I’ve been called three times as an expert. Twice, I visited with the opposing attorneys moments before trial began & they tried to have their clients settle before court. Neither did and subsequently lost their cases (nor did they have their own expert witness).
Third case involved a double proportioned section corner that could have been re-established through records (albeit a diligent search). Opposing attorney whipped out the BLM manual & I explained why it wasn’t applicable. Case closed. Bottom line is BE PREPARED, alot of attorneys don’t know what we know (or should know).
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In my state, an expert witness has a specific definition – something more than being licensed. I’ve been qualified as an expert in 12 lawsuits, and each process of the judge “accepting” me as an exert was slightly different. If you are not an expert, you are officially referred to as a professional, or a specialized witness, or a witness, but, not an expert witness. The first time I was accepted I probably didn’t deserve it because my CV only said that I had passed a lot of C.E classes, but my lawyer was good and the other side wasn’t paying attention (we won the case).
Its good to know this because the other side will have a surveyor and you can help your lawyer find out whether or not THAT surveyor should be qualified as an expert.
I would charge an hourly rate that pays for preparation, depositions, and all time you spend at court that your lawyer asks you to be there (some days you won’t be called or needed).
Also bear in mind that court is the domain of the lawyers. Tell your lawyer everything you know in HIS office. in court, answer the lawyer’s questions as briefly and clearly as possible. Your job is not to advocate surveying. your job is to help your lawyer with HIS case. Good luck
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Onto the more important matter:
You will want a retainer. You will charge for all the time you will take to prepare for the trial, Hourly Rate, Professional Rate. You will charge for all time in the courtroom during the trial. You can per diem this or hourly this but you will charge as if you were attending a night meeting (double normal). You will take notes and provide your attorney with fodder to sling at the other side.
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warren ward PLS CO OK, post: 421193, member: 12536 wrote:
Also bear in mind that court is the domain of the lawyers. Tell your lawyer everything you know in HIS office. in court, answer the lawyer’s questions as briefly and clearly as possible. Your job is not to advocate surveying. your job is to help your lawyer with HIS case. Good luckWell Said!
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The past 2 times I have been called, my client was the attorney (attorney A). I had no idea which side of the surveyed line was his client until court. This really helps to being impartial in testifying. When the opposing attorney (attorney B) claimed I was biased because I was the surveyor for attorney A’s client, attorney A asked me under the redirect if I had ever met his client (no) and if I knew which side of the surveyed line his client owned (no). I liked the way he handled that part.
The funny part was after I testified, during a break, while the attorneys went through some photos they wanted to enter as evidence. I have known the judge for many years since our children grew up and went to school together. I’ve used my middle name my entire life except here at work. When I stated my first name he gave me the usual ” I thought your name is XXXX look” and I was hoping he didn’t say it out loud in court. He did meet me in the hall and ask so he could clear up who I really was.I parrot some of the comments above: Inform the client/attorney you can’t provide them with an estimate because of the court prep and you don’t know how long everything will take in court so you bill by the hour. I you don’t remember, state so. If the question is something outside your expertise, state so. If you are asked about something you didn’t do or calculate and you were not specifically asked by the attorney to do that work, state you weren’t asked to perform that work. Don’t guess, and don’t speculate on anything unless you have first hand knowledge of it. Don’t say anything bad about the other side’s surveyor in a disrespectful way to our profession, even if he is known to always have blunders on his recorded surveys, and that is the reason you are sitting on the stand.
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[USER=6369]@Deano[/USER]
All of the above is great advice, especially about the opposing counsel trying to piss you off. Stay cool.
Please make sure you dress properly for the court appearance. (Suit and tie) 😎 -
Deano, post: 421106, member: 6369 wrote: I completed a survey in early 2015 for a client in a dispute with his neighbor. The client wanted the survey to show the relationship of an ancient fence relative to aliquot part lines described in the record deeds. Basically a survey showing what they’ve used and farmed over the past several decades that is different than where record lines would be located on the ground. It appears the case is going to court and their attorney has given me a head’s up that they will probably be calling me as expert witness.
I’ve never been called as an expert witness and don’t have an idea as to what form an agreement should be. Would anyone have any type of agreement they would be willing to share or advice to give on what you would put in an agreement for being an expert witness?
First, any time you spend in court is time you can’t be spending out in the field or in the office.
Figure your hourly rate, add in overhead and fee multipliers.
Then state a minimum number of hours, as you will kill at least half, if not a whole day when you first show up (no one goes to court for 30 minutes).
Then figure that they are going to set a trial date, the it gets postponed, then they are going to set your date to testify, and that will also will get postponed.
I knew one surveyor who was asked to be ready on four separate days in succession, and eventually never got called, as they settled before his testimony was heard.So there has to be a provision in the event of multiple days.
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Thanks for all the good insight and advice on this.
Found out a couple of days ago the the parties have come to an agreement and the trial has been cancelled.
Now, I get to meet the clients and attorneys on site next week to survey the agreed line, prepare new descriptions, and prepare a new record of survey.What could possibly go wrong?
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Duane Frymire, post: 421115, member: 110 wrote: Agreement should contain a fee for court preparation time, then another for court time (usually double prep time rate). Court time should include a clause of minimum of half day, whether on call or actually called. Also a good idea to require pre-payment.
For what it’s worth, I bill it all out at the same rate per hour, with a half-day minimum for appearances in court and at depositions. The most important part is to bill all of the hours necessary to prepare for either court or depositions, which may possibly include site visits and whatever else seems appropriate.
You have to review the file and make whatever notes will facilitate your testimony as to your findings and opinions. That preparation time is possibly the most important part of the whole service. A witness who can’t recall exactly what he or she did or why it was done is not really serving the need.
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spledeus, post: 421180, member: 3579 wrote: I often close my eyes when answering a complicated question to ensure I am not distracted by a pesky attorney.
I think that the better practice is to always turn and look toward the jury when answering a question, and to address them in a conversational voice. Your testimony is for their benefit, not that of counsel who asked the question. If the trial is before a judge, I see no problem turning toward him or her unless the body language from the bench suggests otherwise.
This serves two objectives. It removes the witness from some interplay with opposing counsel and it keeps the jurors interested. You are, after all, telling them something that you think is relevant to the matter before them. Opposing counsel should already be aware of what your opinions are.
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