They are employing you to arrive at a conclusion on a specific challenging matter. Your conclusion may end up being exactly the opposite of what they were hoping. They then learn that they may be "urinating up a woven-sisal construction" because the other side may have already found an expert whose conclusion matches yours. They owe you for your service. They most definitely will not plan to have you testify.
> "What ethical constraints, if any, restrict a surveyor's ability to serve both clients,"
>
> None
>
> Have a great weekend!
The entity who hired me has never had a single bit of influence on my professional opinion, the truth is the truth no matter who hires you.
If you feel that someone wants you to withold the truth or some of the truth and you decide that you want to cater to them then that is strictly your business. However, I feel it is unethical to provide expert technical professional testimony without providing sufficient context. Misguidence through skillfully placed omissions may be legal but not ethical.
> I'm pretty sure that all those ethical canons for realtors have been revised. The new rules are:
>
> - The agent will deal with the buyer and the seller impartially unless it will hold up the closing.
> - The agent will have a duty of disclosure to both the buyer and the seller of any matter that will potentially hold up the closing, but only if it doesn't.
> - The agent will not disclose that the buyer is willing to pay a price or agree to terms other than those contained in the offer, unless it will expedite closing the sale.
> - The agent will not disclose the motivation of the buyer or the seller to sell unless it will be helpful in closing the sale.
> - The agent will not disclose personal information about either the buyer or the seller unless they are difficult people who are holding out on closing the sale.
> - The agent will disclose to the buyer the defects about the physical condition of the property known to the agent, aside from those that my seriously delay or kill the sale.
Nice one, Kent. LOL. So true...
If a conflict arises then you have the choice of telling one or both clients that you will have to step aside. This is employment, not a marriage.
The Conflict of Interest
> What in effect J.B. is evidently claiming ...
Stick with relaying your own opinions, Kent. They certainly differ from mine. I'm perfectly capable of stating my own.
What I stated was a direct quotation from the law on expert witnesses (see Rule 702). The "reality" is that there are many unscrupulous "so-called experts" out there who are, in fact, "hired guns" who give the real expert witnesses a bad rap. Yes, Kent, reality is that those types exist. That doesn't make it right.
Differences in opinions are expected and are no indication of right/wrong or good/bad. Differences of opinion are precisely why we have odd numbers of appellate level judges. A 4-3 decision doesn't mean that four are right and three are wrong. Opinions aren't black/white.
JBS
> If a conflict arises then you have the choice of telling one or both clients that you will have to step aside. This is employment, not a marriage.
Actually, many litigated matters deal with obscure subjects that, amazingly enough, depend upon how thorough an investigation is made and how the results are presented. In my experience, the way things typically go is a surveyor makes an initial assessment of the case and arrives at a reasonable conclusion that he or she then proceeds to assemble a preponderance of evidence to support. The search for evidence is not some open-ended thing, but is structured by likelihoods of relevance. Otherwise, you'll be out mapping power poles to try to prove where some surveyor ran a line in the 1840's, which is ridiculous on its face.
There are many situations where competing surveying theories are possible, plausible arguments may be made for each, and supporting evidence mustered. This is where conflicts of interest are quite possible when serving two parties with interests that no longer are congruent.
The Conflict of Interest
> Stick with relaying your own opinions, Kent. They certainly differ from mine. I'm perfectly capable of stating my own.
Well, what J.B. posted was this:
>When you are hired as an expert witness, you are presumed to be a "disinterested third party." Your duty is to "assist the trier of fact" (the judge) "understand the evidence or to determine a fact in issue." As such, it's pretty hard to have a "conflict of interest." Being an expert is all about reviewing the evidence, determining the pertinent facts based upon the evidence, applying the principles of law or standard practice, and formulating your opinion.
That is obviously nonsense because it completely ignores the role of the surveyor expert as assembler of evidence and it ignores how surveying actually is done. It isn't as if some godlike third party has put together every iota of evidence that exists in the known universe and the surveyor is presented with it in a nice package to form an opinion from. In the real world, the surveyor develops a reasonable theory and then goes about finding facts to support it or to test it against, to form a substantial body of evidence.
I heartily agree Kent.
It sometimes feels like stepping into yet another episode of Mission Impossible.
But, that is the fun part, choosing how to approach a project... and sometimes there is no clean end to pick it up with.
If you can't determine whether you are an "advocate" or a "disinterested third party" you probably don't have a clue what professional ethics are. The real world might be full of dishonesty but that doesn't you need to be that way. Yes keep your guard up and radar on but don't go over to the bad side.
They are both defendants on the same side of the issue. But here in CA, we must notify clients if we have an interest (or conflicting interest) between or with clients.
CA Board Rules 476 b 1 states:
If a licensee provides professional services for two or more clients on a project or related projects, the licensee shall disclose in writing to those clients and property owners or their authorized representatives his or her relationship to those clients.
> If you can't determine whether you are an "advocate" or a "disinterested third party" you probably don't have a clue what professional ethics are.
Actually, the ethical question I raised has very little to do with either. Apparently, you've never really considered the full subject of professional ethics in all its permutations in the real world in which actual clients retain actual surveyors to provide actual services.
> They are both defendants on the same side of the issue. But here in CA, we must notify clients if we have an interest (or conflicting interest) between or with clients.
Yes, in the situation I described, the inherent ethical problem is addressed by obtaining the informed consent of both parties. I think that I'd probably go further to designate one or the other as the primary client and, as a condition of the contract, narrow the scope of services to the secondary client to matters upon which the interest of both are acknowledged to be congruent, with the understanding that in the event that their interests are determined to be no longer congruent upon those specific issues, that the surveyor will be obliged to inform the primary client and will have the option of terminating the agreement under which services had been provided to the secondary client.
> Actually, many litigated matters deal with obscure subjects that, amazingly enough, depend upon how thorough an investigation is made and how the results are presented. In my experience, the way things typically go is a surveyor makes an initial assessment of the case and arrives at a reasonable conclusion that he or she then proceeds to assemble a preponderance of evidence to support.
If in assembling the evidence you discover that your initial assessment is not supported by the preponderance of evidence do you then change your assessment or the way you present your results?
Peter Lazio
Your probably right Kent, I'm not an actual surveyor nor is the earth real.
> Your probably right Kent, I'm not an actual surveyor ...
If you say so. I won't try to change your mind.
In the real world, the surveyor becomes an advocate for his opinion and the facts that support it. You've argued yourself blue in the face over how much you dislike placing boundaries in locations that don't follow fences. If that was anything other than advocacy, I'd like to know what it was claimed to be. It certainly wasn't disinterested.
I met with an attorney on Thursday about a case I've been a designated expert on for over two years. The court has combined two separate cases into one trial and there have been substitutions of counsel in both of the cases. It's hard to tell who has retained me as an expert at this point. The lawyer I met with on Thursday told me that whatever time I spend on either case to send her the bill and she will hash it out with the other parties. She's been good so far.
My first and only specific assignment was to map features in relation to un-disputed property lines and recorded easements, etc. Some parties want to talk about the validity of the easements. I wasn't asked by any of the parties to investigate that so I didn't. Some parties now wish I would testify to the validity of the easements but through the whole discovery and deposition process I have not come to or expressed any opinions about the easements' validity. At this point, I'm better off not to know or investigate more than what I've been asked to do. If I came into court spouting off about the easement validity, lawyers would be doing handstands to object.
If these things were cut and dried, it wouldn't get this far. If there was clear-cut statute or case law that blew one side out of the water, there'd be a settlement or a summary judgment by now.
> > Actually, many litigated matters deal with obscure subjects that, amazingly enough, depend upon how thorough an investigation is made and how the results are presented. In my experience, the way things typically go is a surveyor makes an initial assessment of the case and arrives at a reasonable conclusion that he or she then proceeds to assemble a preponderance of evidence to support.
>
> If in assembling the evidence you discover that your initial assessment is not supported by the preponderance of evidence do you then change your assessment or the way you present your results?
I've never had that happen that I can recall. If it were ever to, my first obligation would be to notify my client that significant evidence has been discovered that would tend to support an alternate theory other than the one I had advanced.
Having discovered that evidence, naturally, one could not disclaim all knowledge of it under oath. That fact would probably guide a client's counsel in deciding what further use the surveyor might be in the matter being litigated.
Once you take on that sort of advocacy you loose sight of the truth. Kent, is there any bigger of an advocate online than you? You'll go to no end to put down any opinion not inline with yours.
I haven't argued for fences, I argued about what's the law. Surveyor’s that don't know the law aren't much good to society. Those that blatantly disregard it because they don't agree with it, where do they belong?
And as usual, it's a total waste of time to get down in the slop with you. So carry on with your congregation.
> Once you take on that sort of advocacy you loose sight of the truth.
Uh, no. Being an advocate for the facts and an opinion based upon them is advocating for the truth.
> If these things were cut and dried, it wouldn't get this far. If there was clear-cut statute or case law that blew one side out of the water, there'd be a settlement or a summary judgment by now.
Yes. Litigation sometimes is like a play with a constantly changing cast of characters - and that's before the appeal is filed.