And the average survey surveyor begins with presumption that the attorneys have never read boundary law.?ÿ
@jim-frame we had an experience like that a few years ago. I bungled an answer rather badly. Our attorney didn't follow up on it. 30 minutes later opposing counsel asked the same question phrased slightly different and I skewered him. I wanted to send him a thank you note but my boss wouldn't let me...
One of the most consistent mistakes I've made is caving to lawyers who want me to remove "unnecessary" information. I call it "necessary and professionally required". I told one lawyer "I'm willing to put my name on THIS document and you can retype it any way you want". Most of the times ive caved I would later regret. But so far I've not been asked to remove a case law cite. In fact I posted one of my postcards about how the attorneys and planner could not fathom why I would accept monuments that don't "match" the plat and I often wonder if I should add that case law answer in a standard note?
This answer may not be the one I would have once given. Time changes things. We may want be careful about making case citations. A citation certainly can be useful to keep in your back pocket when working with council. But let them decide how to use it.?ÿ
Pointing to a specific case in a narrative is not wise. State the facts that support your location based on the law but not a case that supports the law. Just about any lawyer could argue against the application of the cite to your survey but not the facts. It may be the cite you make may not be the best one out there or there are other things in it that don't particularly apply to your situation.?ÿ You may be painting yourself into a corner.?ÿ
@norm?ÿ
That's why we are professionals, we need to understand when and how to cite case law. A boundary survey that does not explain and justify your decisions is just a series of measurements. That is technicians work.?ÿ
Often we can do this without citing cases, but we should know more than all but the most specialized attorneys how to cite boundary cases.?ÿ
@dougie I've seen the same attorney argue both sides of the same circumstance for different clients. It's about winning, not about truth
@jim-frame "Maybe it was just a knee-jerk territorial reaction on his part ("I'm the lawyer, you're the surveyor"), but I followed his advice and left that section off of my ROS."
Probably that or what Bill said.
I've cited published rulings (that is appellate or supreme) to show well settled law as it was applicable to my survey.?ÿ I write my narratives with the goals of making it easy for subsequent surveyors to agree with my conclusions and very difficult for them to disagree.?ÿ With that in mind, I would be hesitant to omit anything that would detract from that goal.?ÿ If an attorney suggested I remove any portion of my narrative, I would want them to explain their logic behind that request before I agreed to do so.
On the other side, Half Bubble said he cited to a Superior Court case.?ÿ Unless the parcel I was working on was directly subject to the cited case, I would not include a cite to a Superior Court case.?ÿ They are highly fact dependent and are not precedential.?ÿ Even if the facts found during your survey are very similar to those of another case in the same jurisdiction, the only thing citing to a previous judgment of that court does is remind them of what a particular judge decided in a similar case.?ÿ There is no binding element of that case on any other judge or even on the same judge of the court.?ÿ That is really only the attorney's role (if it does go to court) if he or she thinks there is value in it.?ÿ It might be that the attorney is quite familiar with the judge and knows that judge would take offense at someone reminding him/her what they decided in seemingly similar circumstances.
IMO, there is nothing wrong with citing case law as it pertains to your survey but you need to be very certain of a few things if you intend to do it:
1. Make sure the case is a published decision (Federal or State Appellate or Supreme Court) of a court that has jurisdiction over the area where your survey is located.
2. Make sure the facts underpinning the decision have similarity in the nature that the opinion indicates was the important factor(s) as you found during your survey.
3. Make sure the issue for which you are citing the case isn't one where the case could have turned on some fact which you have no way of knowing may or may not exist.?ÿ For example, you are using the result of a case to justify having used a fence as the best evidence of an otherwise lost corner.?ÿ Among the facts you discovered is that a 60 year old neighbor and lifelong resident stated, maybe even under oath that the fence had been there as long as he can remember.?ÿ But...
Another surveyor comes along a few months later and happens to be made aware of a 90 year old lifelong resident that you weren't made aware of, and she recalls that when she was a little girl, her dad had helped a neighbor build a new fence parallel but a few feet distant from an even older one and the reason they did that was to keep the neighbor's horses from reaching over and eating all the ears off the nearest row of corn.
Once it's on your filed map, it's too late to say, "If I had only known about that fact, it would have changed my opinion."
4. Make sure that you are citing to bring in very settled law applicable to a principle for which the finding of some previously undiscovered fact will not change the outcome of your survey or affect the applicability of the principle you are citing the case for.?ÿ For example: "Although the Swift River at the location of this survey had been affected by artificial influences of extensive earthwork and mining upstream for the site of this survey, at one time fixing the location of the subject parcel's waterward boundary at the last natural location of the low water mark, those activities had occurred several miles upstream and several decades prior to the date of this survey.?ÿ It is my opinion that the Swift River has once again taken on the character of a stream in a natural condition and therefore the waterward boundary of the subject parcel is once again ambulatory [State v. Superior Court (Lovelace), 11 Cal 4th 50(1995)]."
In an instance like that, you are relying on an obvious fact that would be difficult to disprove (the river has taken on the character of natural condition) and have verified that there are no other facts that would disprove your interpretation of the fact (a dam had been built after the earthwork and mining just upstream from where that activity had taken place, or the presence of some other obvious artificial influence having a lasting effect at the site of your survey), the primary principle identified by the court is applicable to that fact, and there has been no subsequent case law or enacted statutory law which has negated the principle you are applying.
5. Make sure that you are not mistaking facts or principles discussed as dicta.?ÿ That is, the principle you are gleaning from the case or fact set you are comparing is one that played a direct role in the final conclusions and ruling of the case.?ÿ Fairly often, the published ruling may include discussion as background or for some other informational reason, but the facts or principles mentioned do not play a role in the outcome.?ÿ As you are reading the ruling, dicta can often be identified as discussion of facts which are not necessarily present in the case being considered by the court, or mention of some conclusion by an earlier court without including discussion of how those facts or conclusions tie in with the reasoning of the conclusions for the case at hand.
6. Make very, very certain that you are not placing yourself in a position of arguing law.?ÿ If there are published rulings that could be used with the same set of facts to come to a contrary conclusion among the appellate courts within your State, even though the one you are considering citing is the one that supports your conclusion, then the law is probably not settled enough until the State Supreme Court settles it.
If a reasonable argument can be made that the case you are citing does not apply to the facts you've identified (even if the facts are undisputed or stipulated to), then the law is probably not settled enough for a surveyor to be citing to the case.
If the the contrary argument is that a case wouldn't apply because you misidentified or misinterpreted facts, first check the veracity of the facts (if you were not in the field and are relying on what your field crew reported - visit the site, notes in hand) and revisit your interpretation with a very open mind to differing interpretations.?ÿ If you are then still convinced that you have diligently found all the relevant facts that are reasonably available and have made the only reasonable interpretations of those facts, and have ensured you meet the criteria discussed above, go ahead and cite to the case.?ÿ However, it might be prudent to include a statement in your narrative that although you made a diligent investigation, the discovery of facts not known at this time might affect your conclusion.?ÿ You can use that as a blanket statement or apply it to a specific conclusion.?ÿ The key to using it properly is that you did indeed conduct a diligent investigation by any surveyor's standard and by the standards of whichever judge you might one day be sitting in front of.
@warrenward And for most surveyors, the attorney would likely be correct.
@jim-frame I had a similar experience in a deposition several years ago.?ÿ The attorney would point to a parcel corner or other indicated monument on the map and ask something like "What did you find here?" or "What caused you to accept 9or reject) this monument?"?ÿ or "What was your reasoning....?", and so on.
Each time, my reply began with "Well, you see this notation that says SEE NOTE #__??ÿ Let's read that."?ÿ And then I would read it verbatim to him and wait for a follow up question.?ÿ After 8 or 9 of those, he gave up attacking my survey and moved on to communication with my client to see if he could find some manner of collusion, my having been unwittingly manipulated by my client to affect my survey conclusions, or if there was something else my client might have let slip that could indicated some nefarious scheme or malfeasance.
The attorney seemed plenty competent and was just doing his job, but I gave him nothing to go with and it was OK getting paid well to spend a couple hours watching him get frustrated by my doing nothing more than showing the obvious and telling the truth.
Thanks for that, Evan.?ÿ I'm saving it as a checklist.
@norm In most instances, I agree with this advice.?ÿ For the surveyor who has little experience reading case law, doesn't know how to read it in context with other case law applicable to the same jurisdiction, doesn't know what I mean with the statement about jurisdiction, or gets in any way confused when trying to reconcile seemingly conflicting cases, I would say always follow Norm's advice.
If you have a high degree of comfort interpreting case law, have a high degree of confidence in your fact set and the experience to back up that confidence, and the principle for which you are citing the case is well settled, proceed, but do so with some amount of caution.?ÿ If at all uneasy about it, don't.?ÿ
I read and discussed in depth, much of that discussion occurring on this forum, the old POB forum, and a couple similar ones, gaining a lot of experience from those more knowledgeable than I and eventually a high degree of comfort in my reading and understanding before I ever included a cite on a map.?ÿ If you do it, you need to make very certain that you neither are arguing a position or appearing to.?ÿ?ÿ
@warrenward I'm married to an attorney.?ÿ She tells a story of one her professors asking a student how they would argue a particular case that he had laid out.?ÿ The student would proceed to build a fairly sound case using reasonable logic, then at some point the professor would interrupt and say "Oh, I forgot to tell you, you're client is the other party."
For a shyster, it may be about hiding the truth or outright misrepresenting facts for their client's benefit.?ÿ For an attorney with some semblance of a moral and ethical compass, if neither the facts nor the law support the outcome a client or potential client wants, they will advise that the client does not have a viable case and refuse it.?ÿ But their job is not to weigh all of the facts and render judgment but to highlight favorable facts and downplay the importance of other facts and cite law that would tend to support their client's desired outcome.?ÿ They aren't supposed to lie, but to tell the story through entered facts and testimony that puts their client in the best light.?ÿ It's a fine line.?ÿ some can do it well and others can't even see the line and run right past it.
@aliquot As professional surveyors, we also need to recognize when not to cite case law, or include discussion of portions of our reasoning that gets into the far ends of the overlapping areas we share with other professions.?ÿ If you have the knowledge and experience to do it with certainty and it adds weight and/or clarity to your narrative, do it.?ÿ Otherwise, keep your narrative discussion within the realm of technical expertise and judgment reserved to the surveying profession alone.
