I examined a disputed boundary but did not survey it. I examined some of the physical evidence and wrote a preliminary report on it. Report was clearly marked "Preliminary." Client did not pay the bill. Now I have received a subpoena to appear as their witness in court in the middle of my family vacation during Thanksgiving week. I wonder if I have any rights regarding this.
> I examined a disputed boundary but did not survey it. I examined some of the physical evidence and wrote a preliminary report on it. Report was clearly marked "Preliminary." Client did not pay the bill. Now I have received a subpoena to appear as their witness in court in the middle of my family vacation during Thanksgiving week. I wonder if I have any rights regarding this.
All the subpoena's I have seen require a period of advance notice. If you were not given the appropriate amount of advance notice, you can move to have the subpoena quashed.
Larry P
File a Motion to Quash. Call the attorney that represents said client and inform him that you will not be in court that day unless you receive a check in the amount of (past due plus your court fee) beforehand.
above except...- you will not be in court until after your vacation....
and you have cashed a check for the amt of the previous invoice +plus interest
and they hand you a check on the day you appear for 1 days expert witness testimony.
They can't force you to testify as an expert which just hurts them.
Hijack
I found out the other day that a Dr. Frank Willis is going to be giving a seminar at the TAPS spring convention. Are you familiar with him?
OK, I have been through this.
Tell the atty that:
1.) Scheduling is bad. Schedule it AFTER these dates______.
2.) IF they insist on a subpoena, well, then you are a FACT or MATERIAL witness. You will NOT show up with a professional opinion.
3.) IF they want a professional opinion, that will be__________. The Bill is broken down as follows_________ past due, + intrest. + 1/2 day to review all your notes, and the material given to you, so you are properly prepared for the EXPERT WITNESS testimony, the next day.
+ all of that next day.
If they cannot respect you enough to pay your bill, then they cannot really need your testimony.
Nate
Hijack
Tommy,
Frank is Dr. Willis. My advice is go to that class with open ears and open mind. Frank is a sharp dude with important things to say.
Larry P
Hijack
:good:
You nailed it Nate. Fact/material witness vs expert witness. Big difference, this sounds like expert.
Also wonder if the client is the plaintiff or defendant. I would inform all parties that since the project is still on going (having not yet closed the file due to lack of payment), it would not be prudent to disclose anything to anybody except the client.
Regardless, seems kind of bold to subpoena an expert that you know you owe money to. Unless of course you're sueing them.
The attorneys aren't playing by their own rules. They (and the expert) are governed by the Rules of Civil Procedure. You shouldn't even receive a subpoena when testifying as an expert as they cannot compel an expert to give testimony. Being as you haven't done the survey, you can hardly be called as a fact witness, either. The expert's job is to formulate their expert opinions upon facts determined from the evidence in the case. The evidence and the facts don't necessarily have to be gathered by the expert.
I'd be reading up on the Rules to make certain what proper steps are necessary. Check out CCP 1354-1357 regarding subpoenas, and the discovery process outlined in CCP 1400's with particular attention to the Expert Reports section in 1425(B). Hopefully, your preliminary report contained copies of your CV and your rate sheet.
JBS
Not taking anything away from you expertise and professional standing and that you drew your conclusions from experience.
Your being there would appear to be helping the opposition more than your client.
I would think that the fact that you have not actually surveyed the property would allow the opposing attorney to easily rip a gaping hole in anything you have to say.
In your situation, it would be favorable that you contact everyone involved, especially the person that sent you the subpoena, and inform them that you do not intend to be there due to the fact that you cannot provide any support to the client's claims or any information at all due to the fact that you have not made a survey of the property.
I would also think that you could squash the use of your report because it was obtained without payment for services.
When the client sees that you will only harm his case, he will probably be glad to release you from the subpoena.
John, I was told once that I was supeoned because if for some reason I couldn't make the trial, they could get it postponed. Any truth to that?
Go talk to the Judge.
The Judge's Clerk will sort things out faster than anybody else.
> I would think that the fact that you have not actually surveyed the property would allow the opposing attorney to easily rip a gaping hole in anything you have to say.
Not true when talking about expert testimony. The expert is a disinterested third party who bases their opinion on evidence presented at or before the hearing. The surveyor, testifying in a case, can easily appear to be "defending" their own survey. As an expert, I typically don't have a survey prepared as there are usually already too many surveys that have been done. It's a question of which survey is correct. They don't need another one thrown into the mix (unless the other five they have are all "wrong" according to expert testimony).
> In your situation, it would be favorable that you contact everyone involved, especially the person that sent you the subpoena, and inform them that you do not intend to be there due to the fact that you cannot provide any support to the client's claims or any information at all due to the fact that you have not made a survey of the property.
You can't "contact everyone involved." As an expert, you are retained by one side (typically) and must follow the court rules with regard to contacting anyone. You can completely disqualify yourself if you cross the communication lines and could possibly end up with a contempt of court charge if you were to cause a mistrial. You're playing by court rules, not surveyor etiquette.
> I would also think that you could squash the use of your report because it was obtained without payment for services.
"Quashing" the report would only serve to destroy your work product, disqualify your testimony, and remove you from the expert witness list. Then you not only won't get paid for your previous work (which you've made worthless), you won't get paid for your testimony, either. Filing a motion to quash the subpoena will point out the lack of payment issues as well as the lack of final preparation. Are these attorney's even ready to go to trial?
> When the client sees that you will only harm his case, he will probably be glad to release you from the subpoena.
You aren't the one "harming his case." The attorney is. Inadequate trial preparation (on both sides) could end up harming the case more than any expert testimony. Your client also needs to know, going in, that your testimony has nothing to do with "his case." The expert's testimony is given for the purpose of benefiting the judge and jury, not either of the parties (even though one of the parties will like your testimony better than the other party).
> John, I was told once that I was subpoenaed because if for some reason I couldn't make the trial, they could get it postponed. Any truth to that?
I suppose it could be done that way, but I usually receive a phone call from the attorney when they are setting the scheduling conference to confirm the dates that I'm available for trial. Lay-witnesses, they're not as concerned with as they can be compelled to testify with the subpoena. I suppose its just a matter of common courtesy, but the lines of communication between the attorney and the expert are crucial to the trial success. If there's good communication, there's no need for the subpoena. The expert is just as much a part of the "team" as the attorney.
JBS
Gee, JB, you should substitute yourself and go in Frank's place seeing that you appear to think it ok to be an expert witness and not be paid for your services.
Yes, it is true that as an expert, one can testify and offer their opinion. An opinion has no weight except by reputation. The reason they appear to be in court is because of expert opinions that differ.
It is bad judgement to pick what parts of someone's survey is right or wrong without having followed their footsteps.
It is true the property was visited and seen thru an expert's eyes. Is that enough for one to base testimony. The work of another, especially one that you don't agree with.
An actual survey would provide separate evidence to base an opinion.
Frank has not been retained, he is being hijacked into court and is looking for an out.
This guy is trying to parade experts with opinions thru court for free.
The client and his attorney are playing dirty and I don't think that running their case into the ground is out of the question.
Actually, Frank does not have a client. Clients are those that pay us for our services. He can contact anyone he wants, it is their responsibility to act accordingly an respond accordingly.
This is my opinion. I don't like being railroaded into such a situation like Frank is in. As an expert, I don't think he is responsible for saying anything in court about his opinion for services that he has not been paid for.
Frank does have his right to speak to the DA and the guy and his attorney without any problem of recourse to be released from the subpoena.
I have seen it all now> A Harris
Why would frank want to talk with the DA? I assume it's a civil matter and not criminal charges. If it's a criminal issue then maybe frank has fact testimony to offer...but from my reading it isn't and the DA isn't involved.
Have you been involved in court cases A Harris?
I have seen it all now> A Harris
Yes, I've been in court and believe me, if you do not have anything to offer, the court does not want you to waste court time.
I would call the DA because their opinions are the best and most reliable information you will receive. They will pass you on to the actual person to talk to in any situation.
The District Clerk is the one that handles court schedules and they are probably the actual person to notify and they will quickly pass you on to the person that sent you the subpoena.
Talking to that person and explaining the facts that you need to get paid for services rendered and to be paid in advance for court time or you will not have any opinion to offer. If they refuse then it would be best that they release you from the subpoena or they will be wasting court time for bringing you into court and will now owe you for your appearance.
You must get the word out among the people that run the court that you are not willing to be an expert with an opinion without being compensated for your time. These people get the big bucks of the government payroll, you should expect no less.
> Actually, Frank does not have a client. Clients are those that pay us for our services. He can contact anyone he wants, it is their responsibility to act accordingly an respond accordingly.
I believe the courts disagree with you on whether or not Frank has a client. One does not cross some magical threshold just by handing the surveyor a check.
Remember, we aren't talking right and wrong here, we are talking about the legal process. Those things are often very much unrelated.
Larry P