Hypothetical Expert Witness vs. Subpoenaed Witness

I applaud you giving it some thought, and I think maybe you should go watch the part of the movie "True Grit" where Rooster Cogburn is giving his testimony to the defense. It will make you feel better.

Brad Ott, post: 390603, member: 197 wrote: ...I do not think that I have the intestinal fortitude to be this snotty in court, especially this being my first time. It is just not in my nature to behave that way...

Mine neither. It's a acquired talent. But you might be surprised how good at it one can become.

The way I look at it is of someone is standing on your foot on purpose, the time to be cordial and polite has passed. Just remember, in court you can't touch them or talk about their mama...

You have been called as a lay witness to verify FACTS... offer NO opinions... NONE! It is perfectly acceptable to state " I do not recall"...

Dave Vliem, post: 390610, member: 7055 wrote: You have been called as a lay witness to verify FACTS... offer NO opinions... NONE! It is perfectly acceptable to state " I do not recall"...

Okay, so help me pick apart my example above, which ones are opinions, please?

Is "8 feet" an opinion?

Is "white plastic fence"?

According to the survey/plat, is the fence located on your client‰Ûªs property?

YES (opinion or fact?)

Brad Ott, post: 390603, member: 197 wrote: Did you notice any septic tank or septic system next to Lot 1 of the adjoining plat when you prepared the XYZ Subdivision Plat?

NO

‰ÛÏno‰Û

Subsurface encroachment(s), if any, aren't required to be located in Florida. Don't know about IN though.

As for the rest of your post, sometimes in business you have to play hardball, that being said and the fact you are not being compensated for your professional opinion I would answer every question concerning the property in question with "I have not reviewed the project file associated with this lawsuit".
And for cripes sake if an Attorney tries to intimidate you with all sorts of threats prior to trial, tell him/her to go pound sand. Been there done that.
Get tough and remain in control.
🙂

I keep having this run across my mind. After asking for reasonable fees, they then tell you no, but give you a little over $5 and a subpoena, I don't know that I'd be real helpful. It just is not sitting good with me, and I'm afraid I would have to do like you are wanting, and give the most minimum answers I could, as yes or no an answer as I could. They took you out of your day, took time out of your schedule and therefore money out of your pocket, and griped about it? And want you to help them? I do think I would limit myself to yes or no answers, or to an answer that answered exactly what was asked, no more. And seeing how you were not paid to prepare for the case, an answer of "I dont recall" is acceptable. If they ask why you don't recall, it is acceptable to tell them you are a working man, and were not hired to appear as a witness in this case.

Not a lawyer, never been in court, but I would qualify every answer. Lawyer says "fence," say "the fence that existed 6 years ago, blah, blah."

Brad,

If you are an expert witness the answer to your initial question is "You will say exactly what your clients attorney tells you to."

Brad Ott, post: 390614, member: 197 wrote: Okay, so help me pick apart my example above, which ones are opinions, please?

Is "8 feet" an opinion? YES

Is "white plastic fence"? YES

According to the survey/plat, is the fence located on your client‰Ûªs property? YES - I would use the 6 year time lapse and state that you do not specifically recall... 6 years is a long time and I would not be willing to gamble that my memory is that reliable!

YES (opinion or fact?)

As I wrote in the other thread, the first thing out of my mouth after being sworn in would be, "I am a hostile witness and I am not here of my own free will." The answers to all questions would be related to not having looked at the file in over half a decade.

Tough situation, the attorney should have known better. You would have been a much better witness if they had paid you and you had gone to the site to verify the situation.

I certainly wouldn't do any extra work for them but I would not be comfortable answering "I don't recall " if I did. I also would not be comfortable in saying " high school" . I think a survey should come with a gaurntee that I will stick up for it on court, but since the septic field was not shown by your survey what they really need goes beyond standing behind your original survey, and you obviously can't help them with that unless they agree to pay your fee.

put yourself in the judge's shoes

aliquot, post: 390633, member: 2486 wrote: Tough situation, the attorney should have known better. You would have been a much better witness if they had paid you and you had gone to the site to verify the situation.

I certainly wouldn't do any extra work for them but I would not be comfortable answering "I don't recall " if I did. I also would not be comfortable in saying " high school" . I think a survey should come with a gaurntee that I will stick up for it on court, but since the septic field was not shown by your survey what they really need goes beyond standing behind your original survey, and you obviously can't help them with that unless they agree to pay your fee.

Slavery was outlawed by the 13th Amendment.

"What is your education background?"

That sounds like a question one would ask of an expert witness to establish his credentials. I am not here today as an expert witness.

"Did you perform, Such and Such Survey?"

I cannot recall.

"Let the record show I am asking Mr. Lopresti, to look at a copy of Such and Such Survey, did you perform this survey?"

That appears to be my signature, but without searching my professional records, I cannot give an affirmative answer to that question, or any other question pertaining to any particular survey.

Paul in PA

Paul in PA, post: 390637, member: 236 wrote: "What is your education background?"

That sounds like a question one would ask of an expert witness to establish his credentials. I am not here today as an expert witness.

That's a good reply for the situation.

My reply to the question "What is your education background?" is usually "I enjoyed it for the most part."

What is my educational background? Public school, a few drill sergeants, some formal schooling that I managed to keep from ruining my brain, and lots of mean animals that didn't know a word of human that I had to communicate with. The rest I enjoyed so much I didn't realize it was educational.

Had the same situation happen to me about 18 years ago and again 2 years ago. Same attorney both times. Client's attorney refers to me (and all surveyors) as "overpaid measurers". Both times when he started qualifying me as an expert witness and the opposing attorney stipulated that I was an expert, I spoke directly to the judge that I should not be qualified as an expert since Mr. Scumbag refused to pay my fee to review the file and for expert testimony, and the only reason I appeared was because Mr. Scumbag had me served with a subpeona. Both times (different judge) the judge asked Mr. Scumbag if this was correct. Both times Mr. Scumbag replied that the extravagant fee that I had proposed would be a financial hardship on his client. The first time, before I could say anything, the judge asked if he was appearing on behalf of his client pro bono. (Of course he wasn't, he charges $2000 for court appearance, whether it is 30 minutes or 9 hours, plus $200 per hour for all other work) The second time the judge asked me what amount I quoted them, and when I told him, I added that my fee was less than Mr. Scumbag is charging. Both times the judge recessed court (which cost the client more attorney's fees, and yes, i pointed that out to the client) for me to review my file and for the client to pay me or he was dismissing me as a witness.

For some reason Mr. Scumbag is not friendly toward me at all. I had to testify in a case 6 months ago that he was an attorney for one of the parties I had performed the survey for. He would not question me on the stand or in the deposition, had his assistant question me. He questioned everybody else.

Do not give in to anyone who is trying to use you for their benefit and not compensate you for your professional time and opinion. The worst that can happen is the judge makes you answer a few questions, but I never review the file for testimony before receiving payment, so all I can do is try to remember.

Brad Ott, post: 390603, member: 197 wrote: FCHS 1988 PU BSLSE 1996 PU BSCE 1996

I went to an FCHS also....but a different FC I'm sure.

Joe W. Byrd, post: 390642, member: 10015 wrote: Had the same situation happen to me about 18 years ago and again 2 years ago. Same attorney both times. Client's attorney refers to me (and all surveyors) as "overpaid measurers". Both times when he started qualifying me as an expert witness and the opposing attorney stipulated that I was an expert, I spoke directly to the judge that I should not be qualified as an expert since Mr. Scumbag refused to pay my fee to review the file and for expert testimony, and the only reason I appeared was because Mr. Scumbag had me served with a subpeona. Both times (different judge) the judge asked Mr. Scumbag if this was correct. Both times Mr. Scumbag replied that the extravagant fee that I had proposed would be a financial hardship on his client. The first time, before I could say anything, the judge asked if he was appearing on behalf of his client pro bono. (Of course he wasn't, he charges $2000 for court appearance, whether it is 30 minutes or 9 hours, plus $200 per hour for all other work) The second time the judge asked me what amount I quoted them, and when I told him, I added that my fee was less than Mr. Scumbag is charging. Both times the judge recessed court (which cost the client more attorney's fees, and yes, i pointed that out to the client) for me to review my file and for the client to pay me or he was dismissing me as a witness.

For some reason Mr. Scumbag is not friendly toward me at all. I had to testify in a case 6 months ago that he was an attorney for one of the parties I had performed the survey for. He would not question me on the stand or in the deposition, had his assistant question me. He questioned everybody else.

Do not give in to anyone who is trying to use you for their benefit and not compensate you for your professional time and opinion. The worst that can happen is the judge makes you answer a few questions, but I never review the file for testimony before receiving payment, so all I can do is try to remember.

Joe, thank you very much. This is very specific & very helpful.