Standards of Care - Standards of Practice

[LS_8750]

In light of all the recent UFO sightings and discussions on the mainstream media broadcasts, the satanic rituals depicted in Olympic opening ceremonies, Grammy Awards shows, Superbowl halftime shows, etc., it just seems that now is a good time to bring up the subject of Standards of Care and Standards of Practice..... This is a true story.

For context of what I am about to get into, please visit link below to Standards of Proof Episode 27 of the 10 Minute Surveyor... https://www.youtube.com/watch?v=NEReajK ... ny&index=5

Backstory as follows:

Little old lady her father built the house in the 1920s versus new next door owner.

Exhibit to Mediation Brief, 32 page report titled Uncertainty Analysis, in its executive summary reads, ..."it is impossible to re-establish this line to overcome the threshold of "beyond a reasonable doubt."

Then, a year later, same land surveyor on his/her Record of Survey states:

"All found monuments are either of unknown origin or were set by reference to monuments of unknown origin." and,
"Careful analysis of the map and improvements concluded that the line is uncertain and the most likely location of the line is the best-fit of all found monuments. Since the houses are the oldest evidence on the block, this resolution harmonized building setbacks and minimizes encroachments."

Let that sink in. Quite a bit to unpack, but here is for starters - land surveyor declares boundary line uncertain by criminal standard of proof and then files Record of Survey (at the request of his attorney) re-establishing line location (what happened to uncertain?) based on "best-fit" methodology (what is best-fit methodology?), thus calling every monument in the neighborhood off but still regarding them as "monuments".

There is so much more to the story.

I've been living in the Twilight Zone with this job for three years.

I'd like to see us pack up our clown shoes, put away our minibikes, and think for a minute about what it means to be a professional, and an expert in the legal world.

Does anybody out there have similar stories to share?

Do we have any Standards of Care, Standards of Practice?

[David Kendall]

Self-Regulation: The actions members of a profession take to govern their own behavior. This includes defining a code of ethical behavior and determining a system to enforce this code of ethics.

One time I asked the local professional practices committee if the evidence shown on a survey met the regional standard of care, in their opinion.

The response was "we are not aware of any standard of care [for this area]". It took about 9 months for them to develop this response.

This particular PPC is made up of some of the most experienced land surveyors in the area.

The term Standard of Care appears to me to be a game of smoke and mirrors in California.

Choose your own adventure

or

Try to catch me ridin dirty

[Warren Smith]

There is a Code of Conduct contained at the end of the Board Rules (section 476) but, of course, it doesn't directly address a standard of care.
In the absence of an adopted standard, it becomes a matter of review for a trier of fact. At trial (and pre trial motions), both parties advocate their respective positions. Preponderance of evidence is the standard for determining a successful outcome. If a practitioner utilizes the "Try to catch me ridin dirty" as David relates, and damages occur, that outcome is unlikely to be favorable.

Some states have adopted standards of care - much along the lines of what must be shown on an ALTA/NSPS survey for example. As Jeff Lucas points out, there are disadvantages to a mere listing of minimum requirements. As I understand it, Standard of Care is the result of what a reasonable and prudent land surveyor would do under similar circumstances - a necessarily broad overview, and liable to subjective application.

YMMV

[CBarrett]

In court of law, in a civil case, in order to have a judgement, preponderance of evidence is (typically) needed.

If you are running least squares adjustment, you quantify your error ellipses at the 95% confidence level.
If you are running closures, you should be 1:20,000 or better.
A regular traverse, maybe 1:10,000
If your party chief only has preponderance of evidence that se set on the right point, meaning, three points (on the east end) checked in, and two others on the west side did not check in, and he said, that's good enough, you'd probably fire him for walking away before getting to the bottom of it.
We are dealing with different levels of confidence regarding details of what we do.

Surveyor can be called upon to be expert witness in court (expert witness with regards to surveying) without being an expert in legal elements of boundary disputes. It doesn't necessarily mean that they have a higher than average expertise in what they do or that they are an expert in expert witnessing.

An expert witness is a person with extensive experience or knowledge in a specific field or discipline beyond that expected from a layperson. The expert witness's duty is to apply their expertise to give a professional opinion to the tribunal or court on particular matters in dispute.

Clark on surveying boundaries book has a few nice paragraphs about any joe surveyor role as an expert witness, and up to extending to the staff under their supervision.

Now if I ran into a surveyor who claims to specialize in forensic surveying, and that particular surveyor confused what levels of standard of proof are needed in a case, I would question their forensic expertise and familiarity with court proceedings.

Back to standard of care, what standard are we trying to establish? Legal Minimum? Medium ethical? Best Practices? How to stand out in the crowd? How to stay out of court? How to win in court? How to do minimum and keep your license? How to do minimum and retire with only minor disciplinary slaps? How to fulfil your contractual obligation and? Care that our students should aspire to?
All these can be a bit different.

What do we want to accomplish?

[DWoolley]

In court of law, in a civil case, in order to have a judgement, preponderance of evidence is (typically) needed.

...
Surveyor can be called upon to be expert witness in court (expert witness with regards to surveying) without being an expert in legal elements of boundary disputes. It doesn't necessarily mean that they have a higher than average expertise in what they do or that they are an expert in expert witnessing.

An expert witness is a person with extensive experience or knowledge in a specific field or discipline beyond that expected from a layperson. The expert witness's duty is to apply their expertise to give a professional opinion to the tribunal or court on particular matters in dispute.
...

A federal judge may see it differently in following Rule 26.

Rule 26, Federal Rules of Civil Procedure: A Disclosure Guide for Expert Witnesses

"In Rule 26(a)(2), the Federal Rules of Civil Procedure provide rules for disclosing expert witnesses. Subsection (A) creates a duty to disclose “the identity of any witness [a party] may use at trial to present evidence under Federal Rule of Evidence 702, 703 or 705.”

Because 26(a)(2) specifies “any witness [a party] may use at trial,” it may not apply to every expert. For example, an attorney may consult with an expert for the attorney’s education or information. Under this rule, this may not be an expert the FRCP requires attorneys to disclose.

Rule 26(a)(2)(B) requires that expert witnesses who attorneys disclose must also provide a written report with the disclosure “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” The Rule requires this expert report to contain certain information, including:

A complete statement of all opinions the witness will express and the basis and reasons for them.

The facts or data considered by the witness in forming them.

Any exhibits the expert will use to summarize or support opinions and/or facts.

The witness’s qualifications, including a list of all publications authored in the previous 10 years.

A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.

A statement outlining the compensation the expert will receive for consultations and testimony rendered during the course of the case.

The court may determine a written report is not necessary. Nevertheless, the disclosure must include a description of the subject matter on which the expert will testify. The disclosure must also include a summary of the expected facts and opinions the expert will address in their testimony."

Although not as strict, state courts have their own voir dire examination to qualify experts.

The federal process is hard to game due to the requirements shown i.e. publications, prior testimony, written reports, etc. In my experinece, the voir dire examination in state court will let some riffraff in on occasion. In practicality, the so-called experts are usually exited after a deposition. See also, Daubert standard/challenge.

A license does not mean the licensee is an expert. An expert is not an expert in all areas of practice.

Clark, interesting thread. I have some thoughts to share when time permits. I agree a land surveyor referencing a criminal standard in a report is inexcusable. So inexcusable, I made a video on topic. I believe it is a Dunning-Kruger thing.

David Kendall, when the local practice is dirty it does not make the poor practice the standard of care. It is explained here: https://youtu.be/R935IcDMtkI

Anyone that wants to serve as an expert needs a break and a mentor. One route is to have an experienced expert select a case and work with the professional through the process.

Certain types of cases are not overly complicated i.e. locate the right of way line relative to the sidewalk (trip and fall case) or a professional negligence case involving a two monument tango, record boundary in connection with a field survey or failure to sign and seal work product, fish in a barrel/donk busting. More complicated professional negligence cases that requires establishing a standard of care or a confused boundary and especially, easements requires more experience.

DWoolley

[CBarrett]

I am happy to see that courts differentiate between an average professional who may be called upon to testify on their own work, and that who specializes in offering expert court testimony on other professional's work. While there is a lot of overlap, the latter requires additional skills.

[Warren Smith]

In large part, this is because a qualified expert can opine on the ultimate issue(s), and not just salient facts to which percipient witnesses are limited.

[DWoolley]

...
Does anybody out there have similar stories to share?

Do we have any Standards of Care, Standards of Practice?

In the last 18 months I have been immersed in the everyday technical aspects of land surveying. I had been away from it for a long minute.

In the last three weeks I have found:

Four instances, in four jurisdictions, of land surveyors subverting the Subdivision Map Act by attempting to file lot line adjustments on lot line adjustments. For those unfamiliar, they do this to avoid the conditioning of a tentative map and/or DRE review and/or improvement bonds and/or some other shady nonsense. It is a lowbrow version of 4x4s.

Found a recently filed parcel map with feet (over 2' in 1320) that clearly was measured with some scale factor in their GPS RTN system. I know record in this area to be within 0.1-0.2 in 1320', even chained 50 years ago. Flat as a board. Surveyor mapped it and filed it without so much as raising an eyebrow. Turns out to be an unlicensed practice that subcontracted with unlicensed field surveyor. Of course, it was initially suggested by the unlicensed "surveyor" to file an Amended Map, another illegal practice in this instance.

Checking a B map. B maps are the subdivision of a large lot within a recent larger subdivision i.e. an A map. This is how large phased subdivisions are built. I begin to passively examine the A map in the context of the B map. The A map was filed less than 6 months ago, it is a mess as to the exterior boundary establishment. There are feet floating around due to the improper establishment of the underlying deeds and senior grants. Every B map that has a line common to the boundary of the A map has a problem. I encountered a similar situation in 2008 that was on property that is less than 10% of the value. The surveyors ended up buying an adjoining property, filed several corrective documents and were out of pocket about $900k after the lawsuit was filed.

It has been a heck of a last three weeks. I have more stories from the last 6 months than I have time to write about. These problems are in five jurisdictions in 4 separate counties having more than 500 miles between the extreme counties. Hoping for better next month.

These are the most exceptional cases this month. This does not include a map in which I told the surveyor he had an issue in the block. He argued he had done everything right and complete. I asked him if he had searched for any original monuments from the 1920s, he scoffed and said he had looked. I sent out a crew and they recovered three original monuments - that fixed the problem. I am certain there were more monuments. Sure, we had to saw cut out a portion of sidewalk, but it was scheduled for demo and dig down 18" through two layers of asphalt (which we anticipated because the 1919 field notes stated they incorrectly graded the street, but forgot to mention they put down base on the first incorrect layer of street. I took the time to measure and give him the field notes). Remarkable? Not in the least. That is exactly the issue. I am one person in a handful of jurisdictions. Image what is going on in the other 54 counties and 475 cities.

This doesn't include the daily, weekly and monthly problems not worth writing about. Like the guy that was explaining to me today how he "scaled to ground"(?) on a job he uses RTK to measure. Wait, what? I didn't bother asking.

DWoolley

[William Magee]

I have been searching for a public forum by and for doctors or attorneys where self proclaimed experts bash hard on other licensees for all the public to see. Is anyone familiar with one or is that unique to surveyors.

Not to be deja vu all over again, but it seems to be a very unprofessional display.

Please don’t sue.

[Ric7308]

(Please read below as if your clients were all meeting in a roundtable discussion to audit your professional services)

The bad thing about the land surveying profession not having some framework of standards published and agreed to by a significant broad-based portion of the profession is having to rely upon the inconsistent and conflicting professional advice and the resulting impact on the people needing that advice.

Everyone thinks their own "standard of care" is the most widely accepted...without truly understanding how little or wide spread that "standard" is. It is my observation that no one thinks it needs to be established, written, published, and agreed to on a regular basis because they tend to focus only on the impact affecting themselves without truly considering that its not about the land surveyor. Its about the client's or public's need.

Prior to working for the Board, I was one of those "everyone" above. I truly felt what I believed to be the standard of care was consistent with most everyone else. Was that because I discussed this at length in this context with my fellow professionals? No. What did I have to support my belief? Basically nothing (and no, just citing 1-2 popular published books is not sufficient). Sure, we all shared horror stories (like many of us typically do when getting together or online) in an effort to indirectly validate or confirm what we did (or did not do) but is that the most appropriate manner in which to discuss this? Very likely not.

Since I've been at the Board and especially now in my current role, having to rely on advice from professionals in terms of standard of care (or practice - really doesn't matter) is very important to successfully achieving the Board's mission towards protecting the public. The fact that the land surveying profession cannot establish even the most basic framework of a demonstrated, broad-based standard of care is problematic to say the least.

Why can't a longstanding, respected organization, one which arguably represents a large portion of the licensed (and yet to be licensed) population of professionals, establish this and require their members to reaffirm this upon membership renewal each time? And have regular workshops on how best to adhere and implement? Wouldn't this help towards narrowing the consistency issues? Wouldn't this help to lessen the negative impact on reliance by the clients?

[DWoolley]

I have been searching for a public forum by and for doctors or attorneys where self proclaimed experts bash hard on other licensees for all the public to see. Is anyone familiar with one or is that unique to surveyors.

Not to be deja vu all over again, but it seems to be a very unprofessional display.

Please don’t sue.

Welcome back William Magee. Easy to offer your comments hidden behind a pseudonym - fortitude is in short supply the world over.

These are true stories from the front lines. I am merely the conduit, the storyteller.

Why would you search for an obscure forum with less than 150 regular readers to find self proclaimed experts bashing professionals, do you own a TV? If so, pick a network - 24 hours a day, 7 days a week. No TV? Pick any topic on YouTube. Or, if you're old school, buy a newspaper.

Next time put a little more thought into it. I want to believe you're better than this nonsensical post.

I remain optimistic the next three weeks will offer better work product.

DWoolley

[David Kendall]

The fact that the land surveying profession cannot establish even the most basic framework of a demonstrated, broad-based standard of care is problematic to say the least.

Why can't a longstanding, respected organization, one which arguably represents a large portion of the licensed (and yet to be licensed) population of professionals, establish this and require their members to reaffirm this upon membership renewal each time? And have regular workshops on how best to adhere and implement? Wouldn't this help towards narrowing the consistency issues? Wouldn't this help to lessen the negative impact on reliance by the clients?

Thank you for sharing this observation Ric I appreciate your perspective. You would have intimate awareness of the worst of the worst and all shades of grey

Is it the land surveying profession having the problem or is it a California phenomena?

Deja vu indeed:

viewtopic.php?p=56225#p56225

If we could simply change the name of the state and reprint this 50 year old document then we would be light years ahead of where we are now.

I find it embarrassing to have to explain to a client why the surveyor next door 20 years ago took 5 feet off of the front of his lot with no explanation of supporting evidence. And why it will be so expensive to remedy what ought to be a simple situation. Is he now supposed to trust me not do something equally goofy?

[hellsangle]

I think someone just got hooked on McGee's hyperbole . . .

(Com'on . . . the guy has a sense of humor!)

Have a nice President's Day weekend, all . . .

Crazy Phil

[Warren Smith]

NSPS Model Standards for Property Surveys.pdf

Attached are the NSPS Model Standards for Property Surveys

[CBarrett]

Ric, Thank You for being the voice of reason.

[DWoolley]

To Ric7308's point, a written standard is for the protection of the professional and ultimately, the public.

In the simplest form, negligence is a failure to meet the standard of care. If there is a written standard of care and the land surveyor met or exceeded the standard there cannot be any negligence.

If a land surveyor does not establish a standard of care for a project - and something goes wrong - someone else will set the standard for her.

There is no shortage of standards and in many instances, unfortunate land surveyors are unaware the standards exist. For example, the ALTA/ACSM Minimum Standard Detail was written by land surveyors, title insurers, and attorneys. The standard is adopted by all 50 states. Are you prepared to explain why your boundary failed to meet a nationally adopted minimum standard? The fact you weren't doing an ALTA has little to no bearing on the question - you were doing a boundary, right? A boundary survey is a boundary survey. The fact a client didn't ask you for an ALTA has little to do with it outside of the certificate and Table A items. In the eyes of a judge or attorney the fact you didn't meet a nationally adopted minimum standard for similar work is sufficient. If your defense is it was up to a layperson to dictate the standard? Pfft. I will utilize applicable sections from the minimum standards in my contracts. Frankly, I should do it for every boundary, but tend to use it for high liability work.

Do you have a copy of the Green Book?

Again, there is no shortage of standards.

When doing work, especially potentially high liability work, include a standard in your contract- even the loosest standard- and you become practically judgement proof. Presuming you didn't break any laws.

DWoolley

[CBarrett]

If a land surveyor does not establish a standard of care for a project - and something goes wrong - someone else will set the standard for her.

Them/they is a plural for a neutrally mixed group of people, or a singular for an undefined gender. Right now you are singling out women in a negative example. This is stereotyping.

[DWoolley]

If a land surveyor does not establish a standard of care for a project - and something goes wrong - someone else will set the standard for her.

Them/they is a plural for a neutrally mixed group of people, or a singular for an undefined gender. Right now you are singling out women in a negative example. This is stereotyping.

Ok, good focus, ignore the other 500 words that may be useful.

DWoolley

[CBarrett]

If a land surveyor does not establish a standard of care for a project - and something goes wrong - someone else will set the standard for her.

Them/they is a plural for a neutrally mixed group of people, or a singular for an undefined gender. Right now you are singling out women in a negative example. This is stereotyping.

Ok, good focus, ignore the other 500 words that may be useful.

DWoolley

We agree on most of the rest, so no need to elaborate on it. It did not get ignored.
Take the feedback and move on.
Accept that you are not infallible and don't retaliate when you goof up and it is noticed.

[LS_8750]

The purpose for my post was in hopes to initiate some discussion. Thank you all.

I've waved the NSPS Model Standards for Construction Surveys in matter before with good effect. The NSPS Model Standards for Property Surveys I thought was rather weak.

This is from Item 3.D of the 2021 ALTS/NSPS Standards, "..the boundary lines........must be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and field work."

That works for me.

So, do "appropriate boundary law principles" include Santeria, Voodoo, "best-fit" practices, "two monument tangos"? What is a monument?

[CBarrett]

The purpose for my post was in hopes to initiate some discussion. Thank you all.

I've waved the NSPS Model Standards for Construction Surveys in matter before with good effect. The NSPS Model Standards for Property Surveys I thought was rather weak.

This is from Item 3.D of the 2021 ALTS/NSPS Standards, "..the boundary lines........must be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and field work."

That works for me.

So, do "appropriate boundary law principles" include Santeria, Voodoo, "best-fit" practices, "two monument tangos"? What is a monument?

If you are in the mood to contribute, which it sounds like you might be, there are several state CLSA and a few local CLSA committees which can use more people getting involved with hands on activities.

[LS_8750]

Mr. Woolley, have the ALTS/NSPS Standards been used in litigation and/or Board enforcement actions with effect?

And yes, I've been known to dig into the Green Book from time to time...

[DWoolley]

Mr. Woolley, have the ALTS/NSPS Standards been used in litigation and/or Board enforcement actions with effect?

And yes, I've been known to dig into the Green Book from time to time...

Yes, in litigation. The board experts use various citations in drafting their reports. I believe I have seen references to ALTA/NSPS. Understand the complaints to the board, with a few noted exceptions, are usually so egregious a citation to ALTA/NSPS would be overkill. Plenty of two monument tangos and record boundaries - there is little need to establish this type of standard of care.

The BPELSG enforcement is tough to gauge any "effect". Historically, the enforcement statistics indicate almost 7 out of 10 (68:100) are washed as "compliance achieved" or similar. Locally, we have dubbed this The Washing Machine, for obvious reasons. This compliance achieved usually means they require the licensee to file a record. Recently, I have noted the number drop to 6 out of 10 (58:100). Although much to meager to suit my preferences, it is a 20% increase. In fairness, I am not overly attuned to the enforcement process anymore. However, it is my understanding folks will be firing up the complaint filing apparatus before the end of March. Watch the BPELSG enforcement statistics for a influx of complaints filed. Secondarily, watch the washing machine stats to see what they do with them.

DWoolley

[DWoolley]

One thing to keep in mind, the plaintiff's allegation is damages based on professional negligence. The having met the standard of care is meant to be the defense.

The standard is not perfection. The standard of care is an objective standard. Can a professional sucessfully argue holding two random monuments, not looking at the adjoining deeds, holding map angles and distances and calling monuments off has met the standard? Nope.

DWoolley

[proud]

If a land surveyor does not establish a standard of care for a project - and something goes wrong - someone else will set the standard for her.

Them/they is a plural for a neutrally mixed group of people, or a singular for an undefined gender. Right now you are singling out women in a negative example. This is stereotyping.

Ok, good focus, ignore the other 500 words that may be useful.

DWoolley

Thank you! So happy I am almost ready to retire, I can't take this woke crap any more. I thought NASCAR was going to be the topper for me but now surveying.... I'm done. No Country for Old Men! Jp