Ring Ring

If your survey is good, and it agrees with the previous survey of the neighbours property then what are they going to be arguing about?

Just be confident and answer truthfully. If you don't know the answer to a question, say so, don't try to bluff. Is this going to be a jury trial? If so, remember that technical terms may not be understood, so make it as simple as possible while still conveying the facts.

Another Andy

The adjoiner perhaps think they have ripened possession. I'll leave that to the court to decided.

Right now it's just a hearing. I don't think anybody has any doubt where the boundary is. Not sure why they need me.

I sat on a jury (not survey related) and the predominant approach of both attorneys was aimed more at casting doubt on the witnesses, plaintiff and defendant than actually presenting the case. The attorneys would ask them something from their sworn testimony, and if they didn't answer with the same response, the attorney would make a point to read their sworn testimony out loud. Be ready for questions that may appear to place you in an awkward position. "Does your survey have any error in it? Are you paid to be here? Have you been surveying long? etc, etc.

Make an invoice and get a retainer.

They will think of all sorts of hooey to question.

I have one that has been going on for 5 years and me and the other surveyor agree on the boundary. The lawsuit is over damage over the boundary but the defendant has deep pockets and their law firm doesn't mind generating billables generating reams of interrogatories. It is ridiculous.

On smaller time lawsuits the lack of wealthy litigants seems to contain a lot of the silliness.

They need you to testify under oath to where you think the boundary and why. Your map is not good enough; you have to testify.

Try to keep your answers simple. If you need a few seconds to think about your answer, repeat what you understand the question to be back to the one who asked it. Or ask him to repeat the question. It's no big deal, and it can really help you speak with more certainity in your answer, even if it the same answer you could have provided in 2.5 seconds.

Answer only that which was specifically asked, nothing more. In some cases, yes or no is your initial answer. Challenge the asker to clarify exactly what he intended to ask rather than attempting to put your own interpretation to it.

Lawyers truly dislike questioning intelligent, well-prepared people unless they are sure they are going to help their case.

> This will be my first appearance in court as an expert witness.

Robert Ellis is right that the first thing to do is to get a service agreement signed and collect a retainer. Be sure to be paid for every hour of prep time and it isn't unreasonable to bill appearances in court with a half-day minimum charge. It's not as if you can expect to just pop in for a couple hours and proceed to carry on with something else for the rest of the day.

You say that this is a suit in trespass to try title, but you don't say whether it is merely a boundary dispute or whether the plaintiffs are asserting title by limitation. In Texas, both are ordinarily brought as suits in trespass to try title. It's important to know which it is going in so that you can prepare accordingly. I'd ask for a copy of the pleadings so that you aren't surprised. If it's a boundary dispute, you'll want to review the abstracts of both parties to refamiliarize yourself with them.

When it comes to charging for your work on this project, consider this.

Your value to the client has nothing to do with time. You have value because of your knowledge. Whether you spend 5 days or 5 minutes preparing for trail is irrelevant to the client so long as you are prepared.

This is an excellent opportunity to break the mold and forget about charging for your time. Instead, charge a fee to prepare and charge a fee for any day or any part thereof in court. You might wish to also throw in a fee per hour for consulting with the attorney so they don't catch you in a set fee situation and decide to take advantage of that fact.

FYI, I find $1,000 per day for any day or any part thereof spent in court or on call is not an unreasonable fee. You do as you wish.

Larry P

> When it comes to charging for your work on this project, consider this.
>
> Your value to the client has nothing to do with time. You have value because of your knowledge. Whether you spend 5 days or 5 minutes preparing for trail is irrelevant to the client so long as you are prepared.

That's one view, but I think if one wants to get geared up to do actual property litigation of all stripes, he'll be much better served to adopt an hourly or daily rate. I've probably worked as an expert witness on about thirty cases and the idea of working for a flat rate doesn't compute. The process of litigation simply doesn't admit it. Everyone else associated with the litigation is most likely billing their services hourly, so a surveyor who testifies that his fee is $XXX looks like a hired gun, not a professional.

You should charge a daily rate, first day payable in advance, as you will be working on the case in advance whether it goes to trial or is settled on the courthouse steps.

I would ask for payment of the one day fee to be received no less than 48 hours before the court date. Any day you have to schedule an expert witness appearance is going to take up a whole day, in one way or another.

Most judges can be very sensitive to courtroom decorum around here. Wear a coat and tie. If a jury trial, it's even more important.

Be prepared for a lot of irrelevant questions which just reveal the ignorance of the opposing attorney about surveying. It's all just standard stuff for them. Don't ever get upset, just stick to the facts and your professional opinion. At the conclusion of the irrelevant questions, be prepared for something like this, from my actual memory but paraphrased:

Opposing attorney:

"So to sum this testimony up, you are just stating that what you have testified to is nothing more than your opinion?

Surveyor:

"I appear to be the only one in this room who has the legal and professional qualifications to hold such an opinion."

Judge:

Cracks up laughing.

And no, I wasn't the surveyor, but I know who was.

> You should charge a daily rate, first day payable in advance, as you will be working on the case in advance whether it goes to trial or is settled on the courthouse steps.

I'd say that it obviously depends upon the extent of pretrial preparation that is needed. For example, Andy's client's attorney wants him to produce some exhibits for trial. That's something I'd do at my hourly rates. The reason to bill testimony at a daily or half-daily rate is that even if you only have to show up for an hour, all of the associated dressing up, waiting outside the courtroom and winding down after testimony and cross-examination on the stand don't leave much room for much else. If you can switch gears easily, maybe the half-day rate works for you.

I usually don't try to nickel and dime my clients by insisting on a full-day rate. That is because typically by the time it gets to court I've spent very substantial amounts of time on the work and the few hours on the stand are just not that big a part of the effort. Clients like to feel that they've been treated fairly, so gouging doesn't make any sense to me. Likewise, charging different rates for testimony in court and at depositions as opposed to other work doesn't make sense to me because it suggests that somehow the full expertise is being delivered sometimes and withheld others.

Implying that charging a daily rate is "gouging" in expert witness situations is certainly a point of view to which you are entitled. But you always need to separate the needs of your client from the needs of your client's attorney when it comes to your obligation.

Once the attorney is involved, you are no longer working for your client. You have no ability to be an advocate for your client in the same manner as an attorney. And you need to protect yourself professionally and economically, as the protection is out of your client's hands. You can like your client all you want but his attorney will not necessarily like you back.

I also disagree that the daily rate "nickles and dimes" the client. The daily rate avoids nickleing and diming as it doesn't present an hourly itemized bill not well understood by the client or attorney. A fixed price is more acceptable in my experience.

"Likewise, charging different rates for testimony in court and at depositions as opposed to other work doesn't make sense to me because it suggests that somehow the full expertise is being delivered sometimes and withheld others."

I don't know who you were replying to in that statement in your response to me. I never suggested such a thing.

Finally, I don't know of expert witnesses in surveying or engineering (my only first hand knowledge) who don't usually charge a daily rate. In fact I learned the concept from Walt Robillard over thirty years ago. Once you are called, it's an open ended obligation in most cases. Other than depositions, I have never heard an attorney even guess an absolute time frame for court proceedings.

> Implying that charging a daily rate is "gouging" in expert witness situations is certainly a point of view to which you are entitled. But you always need to separate the needs of your client from the needs of your client's attorney when it comes to your obligation.

The obvious question is how a *client* will perceive getting a bill for a day's worth of work for half an hour on the witness stand, particularly in the context of having paid ten or twenty grand in surveying/consulting fees to get to the point where half an hour in court = a full day's worth of services. I wouldn't recommend it as a business practice, but that may just be me.

>
> Once the attorney is involved, you are no longer working for your client.

Well, that's an interesting point of view, of course, but if one has a contract to provide a service to a client, who else is he "working for" if not that client?

The trial is similar to

marking an allotment's 4 boundary corners.

The client may be at his home to see you take less than an hour to mark or expose the existing corners. Not aware of the preliminary research and prior field work and computations that lead to the corner monuments. I always say the easy part is place the marks. No different from being an expert witness.

Hourly rate for preparation and half or day rate court days depending on anticipated court time.

RADU

The trial is similar to

> I always say the easy part is place the marks. No different from being an expert witness.

That's been my experience, Richard. If you've prepared adequately, the testimony in court is enough of a breeze that it doesn't look like work. The attorneys will notice - of course, if they're any good - and they'll let your mutual client know what a good choice of survey experts they've made. I still would rather make my fee on the preparation than gouge them on what is supposed to look like an effortless performance in court.

In that case be prepared for stuff like:

Q - did the alleged occupation appear to be in the nature of an neighborly accomodation?

A - I couldn't really tell, I leave that to the court

Q - did the alleged occupation appear to be completely depriving the one owner from any use of the area in question?

A - I couldn't really tell, I leave that to the court

Q - how do you know where the boundary is?

A - I found the original monuments

Q - How do you know?

A - they all appear of the same age and type

Q - didn't you admit that you can't really tell the nature of the physical objects at the site? Would you like me to read back your previous testimony? Isn't it true that you don't really know where the boundary is?

Yes, it's all about busting up your credibility and introducing BS in order to make the judge guess the appropriate outcome rather than listen to the expert. Lots of preparation is a must. I charge like Kent does. Hourly at normal rate for preparation and double normal rate with half day minimum for court days whether called or not.

> The obvious question is how a *client* will perceive getting a bill for a day's worth of work for half an hour on the witness stand, particularly in the context of having paid ten or twenty grand in surveying/consulting fees to get to the point where half an hour in court = a full day's worth of services. I wouldn't recommend it as a business practice, but that may just be me.
>

This is the attitude that keeps us tied to working based on time rather than working based on value.

When I testify in court for a half hour the client is not paying me for what happened in that half hour. I am being paid for my knowledge. Knowledge that has been accumulated over a lifetime. My time does not equal value. It is my knowledge that has the value.

Certainly we can, and far too many surveyors do, send the message loud and clear that what clients need to pay for is their time. So, yes, if approached in that way, a client might wonder why they are paying a man for 8 hours when he was only there for 1/2 hour. If on the other hand you make it clear to the client that your knowledge is what creates the value for them then getting paid a set fee for a half hour of testimony can seem like a real bargain.

My investment in being the expert that can create the value for that client is not 1/2 hour, it is a lifetime of learning.

Larry P