Ideas: ask independent atty for his thoughts.
Ask opposing atty for advice....
Tell your clients atty, that you are thinking of getting advice fromvthe other sides atty, on getting paid, as that seems to be a problem.
Tell them "i was requested not to bring my professional opinion on that point".
More later
Here's my version.
What is your education background?
I attended FCHS 1988 PU BSLSE 1996 PU BSCE 1996
Are you a Licensed Surveyor in Indiana?
YES, since 1996
Estimate as to how many plats/surveys have you completed?
1,558+
Did you prepare this XYZ Subdivision Plat recorded June XX, 2010?
I have not reviewed my files, but to the best of my recollection I did submit a plat related to this property. This piece of paper appears to have my stamp/seal on it, and that appears to be my signature but I cannot say for certain that this is a true copy of my original plan.
Does the plat show the ABC property line and boundary of Lot 1 of Adjoining Subdivision?
I cannot say for certain, as I am not sure that this is a true copy of any plan that I may have prepared.
What is shown within the 25Ûª D&UE that runs from the main road (fence)?
This plan indicates a fence.
Do you remember what the fence look like?
To the best of my recollection there was a white plastic fence on the site.
According to the survey/plat, is the fence located on your clientÛªs property?
According to this plan it is, but I cannot certify that this is a true copy of any plat that I created.
How far is the fence from your clientÛªs eastern property line?
There is no dimension for the fence shown on this plan.
Did you notice any septic tank or septic system next to Lot 1 of the adjoining plat when you prepared the XYZ Subdivision Plat?
There is no septic tank or system shown on this plan.
What is drawn on Lot 1?
This plan appears to show the edge of a building.
What do you know about the septic tank location?
I cannot recall, it has been over 6 years since I have been to that site or reviewed the file.
Did you have any conversations with your client about the location of any septic tank? If so, when and please explain?
ÛÏyes, only about one month ago when he first called me about this."
Have the neighbors or anyone else contact you about the septic tank issue?
ÛÏnoÛ
FL/GA PLS., post: 390615, member: 379 wrote: 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.
🙂
LOL. I would really like to see any emails from said attorney replied with "go pound sand" that would be pretty funny.
I had a professor in college who advised us to use trigger words that allows the opposing attorney to object to the line of questioning. His favorite word was speculate, as in, I don't exactly recall but I could speculate to what I did six years ago if you would like? Any good defense attorney would object as speculation would not be a matter of fact.
No money. No opinion. Plain and simple. A whole stack of "I'm not sure". My memory only clears up when I'm being paid to do so. I would ask over and over, "Why am I here today?"
I've been subpoenaed several times thru the years and have only shown up once, without being paid.
That was when I was a crew chief in the early 70s and the boss told me to report cause he was not going.
Appearing in front of the Grand Jury I was asked a bunch of technical stuff about what I had done a few days before during the staking of the center line of an access easement from the group of non surveyors that really did not understand that simply staking a line did not include remembering the exact details of how far and where everything was located without preparing all the proper papers, plats and reports.
They were very disappointed and said so and tried to put me down until my response of "you get what you pay for".
That infuriated several that thought because I was not licensed they could bypass the surveyor and strike at me until I reminded them that "I am acting as a deputy to the licensed surveyor I work for".
They huffed and ask me to leave the building...........
All the other times, I called the person responsible and simply ask their reason for needing me in court and what they were going to ask me about.
After mentioning the fee for my services, they were not willing to pay anything.
When I assured them that I would not have anything to say that would help their cause, they immediately released me from appearing.
:manhole:
Had similar happen to me a few years ago. With the first question that went beyond the purely factual "Did you do this? did you draw that?" kind of question and got into the interpretive or opinion "And did you or do you believe that iron pipe that you found marks the property line?", I stopped and looked at the attorney quizzically for a moment. The judge asked "Do you understand the question Mr. Page?", to which I responded "Well that depends." and to the attorney "Are you asking for my professional opinion as to whether that pipe marks the boundary?"
Attorney: "Uh, yes."
Judge (a bit annoyed that the witness was asking a question rather than answering one): "What are you getting at Mr. Page?"
Me: "Well, your Honor, I was subpoenaed here as a percipient witness, not as an expert, although I'm listed in the list of witnesses as an expert."
Judge (to my client's atty): "You listed Mr. Page as an expert, so I assume you won't object to my declaring him to be an expert." (a statement rather than a question)
Judge (to opposing party's attorney, who was doing the questioning): "Have you had an opportunity to depose Mr. Page as an expert?"
Atty: "Yes."
Judge: "Any objections?" (again, more statement than question)
Atty: "No, Your Honor."
Judge: "Mr. Page, your an expert. Go ahead and answer the question."
After another moment's hesitation on my part...
Judge (again seeming a bit irritated with me): "Is there another problem Mr. Page."
Me: "It's just that I've had a good deal of difficulty getting paid to prepare for my testimony at deposition and for this hearing."
At that point, the Judge's irritation grew considerably but was turned completely from me and toward the attorneys.
Judge: "Mr. Dewey, Mr. Cheatham, Mr. Page is here as an expert. See that he is properly compensated for his time as statute requires!"
My memory and ability to articulate professional opinion greatly improved at that point.
eapls2708, post: 390859, member: 589 wrote: See that he is properly compensated for his time as statute requires!"
To which, the attorney in my hypothetical will respond, "he was, $5.38 as the statute requires."
I really very much appreciate everyone's excellent advice. I plan to utilize much of it. But I also know that I am a person who avoids confrontation (often to my own detriment). My main motivator in this case will likely be to get this over with and to put it in my past asap. We shall see how I feel about that the morning of trial, if it ever even gets that far.
More power to you Brad.
You don't need to say anything that is not true (such as I have not reviewed the file), and I would advise against that.
But, you sure don't need to do any additional prep, and you don't need to bring any files with you.
Every deposition and every appearance is unique. Most attorneys understand the pitfalls of not having their witnesses prepared, but this one does not. Just go with the flow... and be humble. "sorry I can't be more clear, I have been out all night drinking with my buds, I did not think this was very important for them or they would have retained me as an Expert."
Peter Ehlert, post: 390955, member: 60 wrote: be humble
and honest.
This will be my mantra.
One option would be to turn to the judge and ask, "Since your are an attorney like these two friggin' idiots does that mean your a friggin' idiot, too?" Let him know right off the bat that you, as a layperson, think all attorneys are idiots. If the judge takes the bait and asks you why you think all attorneys are idiots then you have your chance to tell him/her that you were subpoenaed to be here like any other layperson but at least one of the attorneys is going to expect you to provide expert testimony as you are a licensed land surveyor and set foot on the property six years ago. Find a way to get the judge to ask you a question directly. That opens the door to explaining the predicament.
Better yet. Ask the judge how his grandchild, your baby, is doing these days as you haven't seen his daughter since she called to tell you she was pregnant.
I had them try that stuff on me, (Original Post) I called a few other surveyors. They recommended me to tell the ATTY for the project that IF they subpoenaed me, that I'd come as a fact witness, and leave my professional opinion at home.
Since I highly value my opinion, and absolutely hate to get any mud on my face, in court, I normally read my notes, and prepare few days ahead of time, for the event. I am very interested in being a truly prepared, and professional Expert Witness.
The difference is in how much preparation I do.
So, my fee for this relates in FACT to 3 days of work. Day one to read through it. Day 2 to think it all through, and re read it.
Day 3 in court, as a prepared professional.
So, that is why my fee is xxxxxx.
If all you want is a fact witness, (ie, I saw him pull up the garden plant) then subpoena me.
If you want an expert, pay my fee.
Now, having said all that, I enjoy going to court. I usually only charge 500-800 for it.
Now, another comment. IF you EVER go to court, never answer when your blood pressure is above 2.
A memorable one was a lady atty for the other side who asked me: "So you are saying the TRUE line is HERE (pointing) at the dark blue line?"
Pause.... Pause....
No, ma'am, I am saying that is RECORD TITLE, and that the APPARENT occupation is the fence. We did this until she was crying.
NEVER forget to pause, if there is ANY question in your mind, about what is meant.
I have even said to the atty "In the current format, your question says 2 things. One I agree with, and one I don't". We went around and around about that, until the Judge instructed the atty to rephrase the question.
It's funny the goofy antics, of attys in courtrooms, where they barely understand property law.
N
Having a local judge as a personal enemy? How cool is that!
Peter Ehlert, post: 390991, member: 60 wrote: Having a local judge as a personal enemy? How cool is that!
Might it be even more fun in Mexico?
Brad Ott, post: 390992, member: 197 wrote: Might it be even more fun in Mexico?
funny! I migrated when I was 40+... when I was smart enough to Not do that again. (this ain't Belize)
In fact, I did know the judge's daughter......................but not in that way. She was the City Clerk in a spot about 70 miles from the courtroom.
As a layperson you only know what you witnessed. As an expert you can assign your respected, professional opinion to each and every question that can be answered based on that opinion. Anything else is just like the layperson's testimony. Things like: Yes, I have been on the properties where the question exists. Yes, that was roughly six years ago but I do not recall the specific day or time or weather or who all may have been present, etc. as I have probably been involved with close to 1000 surveys since that time. Yes, in my capacity as an individual possessing a license from the State of Indiana to practice professional land surveying services I should have far more adequate information within the files back at my office but I was not hired as an expert witness for today's appearance.
It is all presented calmly and professionally and is the truth. Suggest that neither side of the case might want to know everything contained within those files. Some might benefit one side and some might benefit the other. Hard to tell without presenting it all.
Brad Ott, post: 390946, member: 197 wrote: To which, the attorney in my hypothetical will respond, "he was, $5.38 as the statute requires."
The statutes (in CA it's in the Code of Civil Procedure) most likely have some sections pertaining to the reimbursement of expert witnesses. The $5.38 check you did receive or which you will receive when you appear is the statutory amount for a percipient witness. Completely different. What you are permitted to testify to as a percipient witness vs as an expert is very different as well.
If it's made clear that the testimony you are offering is opinion evidence, it's only admissible if you are an expert, and if the judge declares that you are testifying in that capacity, then you will be entitled to whatever your customary rates are for appearing as an expert witness and will have certain protections to ensure that you are paid for having served in that role in a timely manner. It is my understanding that neither the courts nor the Bar Association has much tolerance for attorneys who do not pay experts in a timely manner.
I've gotten the impression a time or two that some attorneys, if they think that a surveyor (or some other technical/professional witness) has not appeared in court as an expert before, will purposely try to take financial advantage of that by calling them as a percipient witness, get them on the stand, ask a few straightforward fact questions and then try to subtly transition into questions that call for more opinion and perhaps some analysis. They are hoping to sneak in an expert opinion without anyone who knows better about procedure noticing that the expert was brought in as a percipient witness, and thereby save a few hundred to a few thousand dollars, leaving it in the client's coffers so that they, the attorney, can squeeze it out of them for their own services.
Although you've been subpoenaed as a percipient witness, I'll bet you are listed on the disclosure of one side or the other as an expert. If not, that is a procedural omission that the other side is not likely to miss if your testimony might hurt their case. Accordingly, it's a procedural step that the attorney calling you is not likely to have skipped if he is hoping to have you provide opinion testimony.
[USER=197]@Brad Ott[/USER]
Your perception of the position you are in and your responsibility to your profession will become apparent as you are being questioned on the stand.
Then it will be your decision to be held in such a responsible position for free or to apply your professional right for fair and ample compensation.
:clink:
California Code of Civil Procedure related to Expert Witness that specifically identifies a land surveyor as an expert.
