What is an Expert Witness?

[mpallamary]

Happy New Year everyone, I hope this note finds everyone well. I have recently written an article for The American Surveyor Magazine and I am soliciting feedback. If you have a second, I'd love to hear your thoughts.

http://www.amerisurv.com/PDF/TheAmerica ... an2014.pdf

[LS_8750]

Every expert had to start somewhere. Just because somebody holds phds, prestigious faculty positions, professional credentials, and expert knowledge on subjects "similar to the facts associated with a given case" does not necessarily make him/her an expert on the exact matters of "that given case."

The title of this thread would have better suited the article's title than that chosen. I question the premise given with your first statement; you could have left it out. Personally, because I hold professional credentials does not elevate me to the level of expert. The more I learn the more I realize how much I do not know, or understand.

Speaking of Mr. Smeaton, accumulation of knowledge, and the late 1700s case concerning Wells Harbor, I ran across the subject while reading Tal Golan's "Laws of Men and Laws of Nature." Mr. Smeaton's elaborate theory concerning the silting of Wells Harbor was not convincing to me. I think it was DaVinci in the early 1500s that observed the flow of rivers was a function of the cross sectional area times the velocity of the flow, or Q=AV. Energy losses were not even contemplated until the mid 1850s, and the science of sediment transport was yet to be a child of the twentieth century. Mr. Smeaton meticulously accumulated copious evidence (though unrelated to the facts) and spun an elaborate story based on visions in his head, and incomplete science, or engineering mechanics. Newton's laws were still only little babies, still waiting to be confirmed in most areas of physics. (Mr. Smeaton's theory would not have passed today's Daubert test.) There was an agricultural revolution going on, and Mr. Smeaton's client was one of the leading industrialists of the time. His client was reclaiming marshland right up to the edge of the harbor for farming, thousands of acres of this marshland had been reclaimed.

The harbor silted up not because of Mr. Smeaton's natural forces, but because of the fact that natural drainage courses feeding the harbor had been diverted due to land reclamation, those same lands had been repeatedly and experimentally tilled yearly for decades which led to accelerated erosion. That sediment made its way into the watercourses that had been following the same courses since the last ice age, or thousands of years. The harbor silted up as the result.

Looking back Wells Harbor appears as a case of artificial accretion most likely, but in the late 1700s neither science nor the law had any precedence to work from.

I am reminded of the Delta Meadows case summarized in Bruce Flushman's "Water Boundaries." The expert rationale for that case was fine, sounds good in theory. But to believe in order to determine the 1850 mean high water mark the State's team of experts actually correctly quantified the amount of material displaced by hydraulic and other types of mining techniques during the gold rush and then accurately distributed that material throughout the delta and all the way into the Bay, without the aid of any realistic evidence, such as pre-existing accurate topographic maps at least, and then brought the 1850 mean high water mark all the way from Yerba Buena up into the Delta? That to me is Hocus Pocus. Show me the money. The sciences of hydrology and climatology and sediment transport and geomorphology are still evolving. The defendant didn't care enough about the land to call BS on the State's theory. It would have been a fun one to work on though.

Sometimes the Expert and the Charlatan are one and the same.

[mpallamary]

Thanks Clark! Well said and well pointed. I like your analysis of the cases.

I agree with you 100% as to becoming an expert, particularly given the Board Rules about practices. I am licensed to use GPS but I would never offer myself as an expert on that topic. I would retain a GPS expert. Unfortunately, too many people are deemed an expert (technical expert, etc.) because they have a license. These people would never survive and actual voire dire. In essence, folks like these have tainted the surveyor's gene pool as it were.

As always, your comments are salient and right on.

[desert turtoise]

MP
your article is conceptually conceived well. Please kindly accept some minor constructive criticism regarding composition from a former English major.

I have read a number of your articles. Besides having good subject material, they consistently have excellent beginnings and middle sections.

The final paragraph was an excellent example to support your contentions. But it belonged earlier in the article.

Place a little more focus on creating endings for your articles that provide a summary of your salient points.

And keep it up !

[mpallamary]

Thanks for your comments! I gladly welcome them! We are going through a transition with the magazine and instead of hitting them at 1500 words we are going down to 800 words - one page. It will be more of a challenge.

Your suggestion is right on and it is valued feedback! Thanks. I will be conscious of your comments.

Thanks for taking the time to note. It is good advice!

[E_Page]

Read it the other day. Great points. Timely. I hope you follow up with related articles.

[mpallamary]

I will be following up with this topic. As an aside, on Thursday I was in what amounted to an 11 hour deposition wherein I was intensively grilled by three attorneys in a tag team match for more that six hours. I have also gone through a lot of intense voire dire in other cases. It makes one wonder at the standards used to evaluate designated experts as opposed to real experts. A designated expert is one who fills out a form declaring his/her competency, unproven before a legal tribunal. In any event, I digress.

I hope your new year is going well!

[LS_8750]

Mr. Pallamary,
I take exception to your basic premise.
Your extensive journey through the voire dire may, or may not be, at the suggestion of somebody who has never testified before. There exists an industry within the industry that asks the miedre de pollo question. Who is telling the truth. Experts answer questions. They answer truthfully. But it is law that manipulates those questions to suit relavance to the whims of their arguments.

So let us distinguish experts from practitioners. And God forbid you exclude yourself to one side against the other.

[LS_8750]

Sometimes after 11 hours of testimony, it just does not matter to the outcome of the case. It never did. It was just a game. Your testimony was never important to begin with.

[LS_8750]

Usually somebody who knows nothing. And the expounds in great detail all that they do know...

[E_Page]

Have a recent frustrating court experience Clark?

[Stephen Johnson]

Have a recent frustrating court experience Clark?

:) :)

[desert turtoise]

Mr. Stoner hits it right on the mark with the above title for one of his earlier comments a few weeks ago and current his comments about an "industry within an industry."

There are "experts" in the industry whose main purpose is to advocate that which supports the owner's attorney. This includes competence assassination of the opposing surveyor by way of narratives in recorded maps, along with any testimony needed to support said attorney's efforts.

So regardless of the knowledge or experience level of that "expert", the 'voire dire' process is limited as to truth: it does not allow placing a lie detector on that "expert."

In the perfect world, we could have the court appointed "lie detector analyst" strap on that device and ask the expert: "Are you an advocate for your client and your client's attorney" ?

Then the "voire dire" process would be truly effective. A recently licensed land surveyor who is not an advocate and who tells the truth would get the nod of the judge as opposed to a 30 or 40 year "expert advocate".

[mpallamary]

Excellent points all! Thank you. As many of you know, my underlying objectives with nearly everything I do is to generate discussion. My goal is also to educate others about this facet of the business as there are a lot of misunderstandings, some of which are evident herein. I have testified or been deposed approximately 100 times and I have learned a lot. Mostly, it is to tell the truth and NOT to be an advocate. Personally, there are a lot of surveyors I feel would make excellent experts. The problem is they don't know how to get there or they are intimidated by the legal process. I get contacted by a lot of surveyors about this topic and I do my best to instill confidence in them and encourage them. Perhaps, if there is an interest, CLSA could sponsor a program on this subject. One thing is certain - we need to keep the conversation going! Thanks all again.

[dmi]

I attended a seminar for attorneys. The title for the seminar was something to the effect of how to attack an expert witness. one of the slides was a red background with large letters and it read "Help me Screw you".

[mpallamary]

I forgot to ask what this means? I did a translation and I came up with:

Chicken miedre

"miedre de pollo" from Spanish

Thanks

[mpallamary]

This might be an eye opener for anyone interested. I was involved in a case a few years ago where a civil engineer did a boundary survey and set hub and nails at the lot corners and we got into litigation over his work, also unfiled. At trial, the court permitted him to testify as an "expert" over our objections. Fortunately we prevailed as his survey was in error. When I brought this situation to the attention of the state board and produced a transcript of his trial testimony, they told me there was nothing they could do about it as it was at the discretion of the court to determine if he was an expert. That was troubling.

See the attached.

[E_Page]

Michael,

The Board was correct as far as the court's authority to accept or reject individuals as experts, and what limitations to recognize as to that expertise.

There are professional foresters I know who are not licensed surveyors yet testify competently as to retracing and identifying evidence of original GLO surveys, but are limited in that they don't testify as to whether the GLO lines and monuments are property boundaries. The court may take the expert testimony of a licensed surveyor to assist them in deciding if the lines of the GLO survey are the boundaries, or the court may make the decision without further expert input.

If a licensee is accepted by a court to testify as an expert and then demonstrates incompetence by his testimony, the Board has the authority to investigate and act on that incompetence. The incompetence may be demonstrated by an act/role that the Board has no authority to prevent, but the incompetence is a separate matter from the expert testimony although brought to light by that testimony.

I hope that BPELSG at least reviewed the testimony you are concerned about and took appropriate action based on whether or not it demonstrated incompetence or other violations which are under their jurisdiction.

[mpallamary]

Hi Evan,

Yes! The board did take proper actions after the case settled and they fined/reprimanded the civil engineer for what he did. The ruling speaks to the foundation of my thesis; that is how the courts view an expert. Great follow up!

[desert turtoise]

"..When I brought this situation to the attention of the state board"...

See the attached.

Just a minor shift in topic but related to what MP said:

MP, since you made the above comment, would you be willing to enlighten us on why you did not first go to your local JPC regarding reporting a poor survey and/or his testimony rather than first going to the state "experts".

Some of us have found that local JPC's vary considerably in their willingness to take on anything controversial. There have been comments that maybe some of the JPC's should re-name themselves a "monument preservation committee", since that is one item most of them seem able and willing to be involved with. Some of them shy away from anything boundary-related.

Is yours another of these JPC's that is averse to getting involved with such matters as poor surveying ?

No one could blame you for by-passing a local Professional Practices committee if they are unwilling to be involved. Just my two cents.

[mpallamary]

Yes, I will gladly answer. Respectfully your assumption that I did not go is incorrect. In fact I have four outstanding complaints before the local JPPC and they refuse to look at them or do anything ostensibly for "political reasons" as best I can tell. I tried and I tried numerous times.

In a couple of them involving government employees, the JPPC steadfastly refused and the County Grand Jury took the cause up.

You might direct your questions to them.

[LS_8750]

Mr. Page, the answer is no. Cases settle. I am a practicing professional within the domain of my expertise. But of course I am not an expert. (silly concept)

Sometimes opposing council cannot find experts to challenge the findings of the practicing professional, or Mr. Pallamary's non-expert. And sometimes the expert steps in and scares everybody away.

The industry within the industry watches from the sidelines. I am not limited to the land surveying profession, I pay dear attention to what happens in the world of civil engineering as it relates to stormwater migration and flooding. As a non-expert witness I have often been asked how to analyze the experts conclusions. In other words, I have been asked how to cut the expert down.

In this world, the greatest expert in the world cannot compete with the practicing professional, that "non-expert" who wore the rain gear and witnessed the flood in action and the damages the followed.

Your "expert witness" did not witness a damn thing. Your "expert witness" spent hours finding the high water mark from photographs because your "expert witness" never showed up to examine the evidence. My "practicing professional" felt sorry for the guys taking photographs on your behalf and pointed out the evidence because your team clearly looked lost, and they flew into town from who knows where and needed to go home.

I understand the "expert witness" from a land surveying perspective. Pigeon holed. I think Mr. Pallamary is pulling a Jeff Lucas and cutting the practicing professional land surveyor off at the ankles, and assuming that we as practitioners don't know what we are doing.

So let us distinguish the practicing professional from the "expert witness". Go ahead, take it all. That esteemed expert is the only one qualified to do the work now. Good-bye to your so called "expert witness" practice, and hello to the mundane practice of land surveying. Be careful what you wish for. Because "measurement is dead", and you will need to justify that as well.

Mr. Pallamary, your attitude put me off on this one. Your reference to the ancient Wells Harbor case sparked my attention. History shows the frailties of the concept of "the expert." If anything, one would think that a land surveyor would endure that test, because the practice of boundary surveying has changed virtually nothing since the time before the birth of the USA. Only the instruments have improved, and of course "measurement is dead." But the "expert witness" continues to be amongst the most lucrative snake oil practices of present times. Based on proven techniques and practices? Really?

Based on funding and desired outcomes.

[mpallamary]

Interesting comments. Thanks for sharing. What concerns me is the fact that others are stepping into the shoes of the surveyor. Far too many GIS types are coming forward and we are losing ground in this area. They are becoming the cadastral experts.

The point I am trying to make, apparently awkwardly, is the fact that a void needs to be filled and we should be filling it. When unlicensed GIS technicians and civil engineers offer opinions about land boundaries and they are not challenged, that becomes a problem. We are losing ground and we are losing it fast.

We, as surveyors, should be stepping up and standing out and that is what I am advocating. As to the Wells Harbor case, I learned of it when doing research as to the origins of classical expert witness testimony. It was a reference I found and used. I respect your disagreement. Perhaps you should write an article about it to enlighten others. I, for one, would appreciate it.

As to my measurement is dead thesis, of all of the papers and article I have written over the years, that is one of the most highly requested ones from across the country. You would not believe how much interest that article generated. There is considerable interest and support in that proposition. You, it appears, are an exception and that is fine and quite welcomed.

With regards to the "snake oil" activities of experts, as you see them, as you are undoubtedly aware, it is not uncommon for a practicing land surveyor to be sued or prosecuted for a variety of things. In these instances, they need an expert to defend them. I am assuming you have done your homework and you have learned that I take on a lot of these cases "pro bono." In other words, I do not charge for these services; I do it because it is the proper thing to do. In many instances, besides being sued, complaints are filed with the state board against a surveyor for doing their job. It would thus be important to distinguish between these cases and the others you refer to. If I may, and with the utmost of respect, I believe there are a lot of facets associated with providing expert witness services and opinions that you may not be unfamiliar with. Sometimes it is to help a fellow surveyor from losing his/her home or practice or to undo a wrong. Some would suggest being an expert in these instances is a noble endeavor.

As to your other comments and concerns, it sounds like you had some bad experiences within this area. That is unfortunate. Just yesterday afternoon, some guy cut me off while driving on the highway. I still drive nonetheless as there are a lot of drivers on the road.

What I do know is, for better or worse, the courts and law end up resolving if not defining boundary disputes and we, as professionals need to understand that. I submit that as opposed to criticizing that system, we need to work within it. That is what I have learned.

Thanks again Clark for your comments! If you would like, I can make arrangements for you to share your views with a national audience. I, for one, always welcome spirited debate. It is what makes this a great country!

I saw Jeff Lucas this week. I am curious about what your reference to him means as we were on opposite ends of a disputed case. Again, more interesting.

[Dave Karoly, PLS]

The best expert witness I ever saw was a retired, white haired, grandfatherly airline pilot who totally demolished the hottest personal injury attorney in town, made the attorney, who had decades winning big cases, made that attorney look like a doddering, senile, shuffling old man. That's when I learned most Attorneys aren't all that bright, mostly they are street fighting bluffers. The case was a fatal airplane crash, the insurance company attorney and his expert didn't know they weren't supposed to win, ha.

I've done the expert thing a couple of times, haven't lost yet.

[mpallamary]

Classic Story there!