FORENSIC SURVEYING Part 1 for New York 2017 - c.ymcdn.com · Forensic Engineering Forensic...

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FORENSIC SURVEYING

BERNARD M. TELATOVICH, P.E., ESQ., M.Eng.

JANUARY 2017

FORENSIC SURVEYING

BERNARD M. TELATOVICH, P.E., ESQ.

CONSULTING SERVICES & INVESTIGATIONS, LLCBENCHMARK CIVIL ENGINEERING SERVICES

NYSAPLS January 2017

What is Forensic Surveying?

FORENSICS+

SURVEYING

FORENSIC SURVEYING

Forensic + SurveyingDefinitions

• Forensics - the application of a broad spectrum of sciences to answer questions of interest to the legal system.

Forensics

What thoughts come to your mind?

Forensic Fields• Forensic Accounting• Aircraft Failure• Forensic Anthropology• Forensic Animation• Forensic Archeologist• Forensic Art• Forensic Ballistics • Forensic Biology• Forensic Botany• Biomechanical Engineering• Canine Forensics• Forensic Chemistry• Conspicuity• Coroner • Computer Forensics• Crime Scene Forensics• Forensic Dentistry• Forensic Dermatology• Document Authenticator• Food Scientist• Forensic DNA • Forensic Emergency Med

Forensic EngineeringForensic EntomologyForensic EvidenceExplosivesForestry Fire InvestigationForensic GeneologyGeneticsForensic GeologyHandwriting HermiticityHistoryHuman FactorsForensic HydologyForensic HypnosisForensic LinguistLatent Print IdentificationMalpracticeMaterialsMedical TranscriptionMoldForensic NursingForensic OdontologyForensic OthomologyPathologyForensic PalynologyForensic Pharmacist

Forensic PhotographyForensic Psychiatry Forensic PsychologyForensic Reconstruction/A-RForensic Social WorkForensic Science-Hair & Fibers Forensic Science – FirearmsSafety EngineeringForensic SculpturesSoil ScienceForensic Serology-Bloodstains/PatternStructural FailureForensic Surveying Forensic TaphonomyForensic Technology ToxicologyVisual AcuityDendroecology

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Forensic + SurveyingDefinitions

• Surveying – the science or scientific method of making surveys of land.

Forensic Surveying

• Forensic Surveying – the application of (principles of) surveying to answer questions of interest to the legal system.

• So who can practice as a forensic surveying expert?

What is a Forensic Surveyor/Expert Witness?

An expert (according to Blacks Law Dictionary) is an individual who is knowledgeable in specialized field, that knowledge being obtained from either education or personal experience.

Eight Pillars of Trust

TRUST ----The word speaks for itself- can’t be overemphasized in all sectors


Clarity (distrust for ambiguity)

Compassion – The power of caring

Character – Do what needs to be done-Do the right thing

Competence – Stay fresh – stay on top of it!


Commitment – never a lying apologizer

Connections – Repelling? Magnetic? Dynamic?

Contribution- Deliver Results – give 100%

Consistency – builds trust, builds your brand, builds reputation, builds leadership

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What is a Forensic Surveyor/Expert Witness?

Possessing a professional license is NOT(typically) needed to be considered and qualified as an expert, but it goes towards the credibility of the witness.

Laws that regulate the licensed practice of surveying exist in every state, but do not prohibit the court from considering the surveyor an expert. (Exception may be New Mexico)

Forensic Surveyor/Expert Witness

A licensed surveyor can clarify and add credibility to a court case about aspects of:

1. An industrial accident,

2. an automobile accident,

3. property line dispute, 4. criminal matters,

5. professional malpractice matters, and

6. many other types of cases that arise.

Examples from the audience?


NEED:

Surveyors who build reputations in the forensics field and serve as expert witnesses are in high demand. In addition, the pay is typically pretty good too. It is rare that practicing as an expert will be a surveyors sole area of practice.


Required Knowledge:

1. Expertise in the area of practice.2. Knowledge about many legal principles.3. Communication Skills.4. Information gathering skills.5. Sleuth (in some matters.)


Use of Data:

The data this specialist collects, analyzes, and maps is typically included as evidence at a trial, hearing, or lawsuit. As in all court cases, all parties carefully scrutinize evidence, especially opposing counsel. Opposing council often hires their own forensic surveyor to contradict the surveying evidence.


Critical Skills:

It takes a great deal of precision to do forensic surveying. In addition, professionals who want to specialize in forensic surveying or serve as expert witnesses must be good communicators. They have to convey technical information in a way that people who do not have a background in surveying can easily understand in order to make decisions.

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Forensic Expert Skills

Technical competency along with superior communication skills are essential for the successful practice of Forensic Surveying.

- TECHNICAL SKILLS- REPORT WRITING- TESTIMONY

What might be of “interest” to the Legal System

• DEP wants my property!• Where is my property line?

.Do you remember me?Skippy is run over by the undercover police

car.

Do you think there will be a lawsuit?

What information would the attorney need?

What can you do as a surveyor to assist?

The Lawsuit

Venue – Court -Jurisdiction

Plaintiff Vs. Defendant

The Lawsuit



• The filing of a lawsuit

COMPLAINT

• Responding to the Complaint

ANSWER

DEFENSES

NEW MATTER

The Lawsuit• PLEADINGS and MOTIONS

• Complaint and Answer

• Counterclaim

• Cross Claim

• Joinder

• Interpleader

• Impleader

• Intervenor

The Lawsuit•MOTIONS

• Motion to Amend Pleadings

• Motion in Limine

• Motion for Summary Judgment

• Motion to Strike

• Motion for a Curative Instruction

• Motion for a Directed Verdict

• Motion to Dismiss

• Motion for Leave to Reopen a Case

• Motion for a Misttrial

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The Lawsuit• Jury Trial

• Recuse a Judge

• Disqualify Counsel

• Jury Selection Examination

• Strike Juror for Cause

• Sequester Witnesses

• Adjournment

• Limit Witness Testimony

• Exclude Testimony

• Exclude Exhibits

• Receive Testimony• Receive Exhibits• Judicial Notice• Instruct Jury• Sequester Jury• Discharge Jury• Poll Jury• Stop making any more motions• Judgment Notwithstanding the Verdict (J.N.O.V.)• New Trial• Amended findings of Fact• Enforce Judgment• Attorney’s Fees

MOT IONS

The Lawsuit• DISCOVERY –

PRE TRIAL PROCEDURES

• Depositions

• Interrogatories

• Request for Admissions

The Lawsuit• TYPICALLY MOST CASES DO NOT PROCEED PAST THE POINT OF DISCOVERY AND PRE TRIAL PROCEDURES.

•95% OR MORE OF THE CASES ARE EITHER THROWN OUT AT THIS POINT OR SETTLED.

•

The Lawsuit



TRIAL PHASE

The Law and LawsuitVenue – Court -Jurisdiction


Motions

Evidentiary Objections

Jury Selection

Opening Statements

PLAINTIFF”S CASE in CHIEF Direct examination

Cross ExaminationDefendant

TRIAL PHASEDEFENDANT”S CASE in CHIEF – Direct examination Cross Examination Plaintiff

Summation - Closing

Verdict

Appeal – Appeals- More Appeals

Where does the Surveyor fit in?

• Plaintiff

• Defendant

• Fact Witness

• Expert Witness

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• Expert Witness

https://www.youtube.com/watch?v=Wl92bHtrOvA


• Expert Witness

Surveying in the Legal Forum!Forensic SurveyorExpert Surveyor

• What would qualify me as an Expert?

State Rules of Evidence (New Mexico)MOST JURISDICTIONS ARE SIMILAR

A person holding themselves out as a Forensic Surveyor (a/k/a an expert) must have the requisite training, experience and/or expertise in order to qualify an expert in a court of law. Rule 11-702 of the New Mexico Judicial Volume 11, Article 7, outlines “Opinions and Expert.”

Alabama Rule 702

• Testimony by experts.

• If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

NEW YORK

• Admissibility of expert testimony in New York is governed by N.Y. C.P.L.R § 4515. It provides: – Unless the court orders otherwise, questions

calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based. Upon cross-examination, he may be required to specify the data and other criteria supporting the opinion.

NEW YORK

The Purpose of Expert Testimony --aid the fact finder in those circumstances when the expert’s testimony “would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.”

De Long v. County of Erie, 60 N.Y.2d 296, 307 (1983); see also Price v. New York City Housing Auth., 92 N.Y.2d 553 (1998); Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784 (1996); Selkowitz v. County of Nassau, 45 N.Y.2d 97 (1978

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NEW YORK

When would Expert Testimony not be necessary?

--Expert testimony is unnecessary unless it aids the jury in examining an issue which requires professional or technical knowledge.

Kambat v. St. Francis Hosp., 89 N.Y.2d 489 (1997); Galasso v. 400 Exec. Blvd., LLC, 101 A.D.3d 677 (2d Dep’t 2012)

NEW YORKWhat Qualifies one as an expert? -- must have the appropriate education, background, and/or experience in the field upon which he or she will opine. “The expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.”

Matott v. Ward, 48 N.Y.2d 455 (1979)

NEW YORKWhat determines whether the testimony of an

expert is admissible?

-- within the discretion of the trial judge whether to permit the proposed expert to give his or her opinion as to an issue in the action.

Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 398; Guzman ex rel. Jones v. 4030 Bronx Blvd. Associates L.L.C., 54 A.D.3d 42 (1 Dep’t 2008).

NEW YORKWhat can an expert rely upon when making

an opinion in court?

-- (1) facts which are in the record or may be fairly inferred from the record, and (2) facts that are personally known to the expert.

Hambsch v. New York City Transit Auth., 63 N.Y.2d 723 (1984); Stringile v. Rothman, 142 A.D.2d 637 (1988). In general, an expert may not rely upon hearsay in rendering an opinion.

South Carolina Rule 702

Testimony by experts.

Is Identical to the Federal Rule of Evidence?


• What would qualify me as an Expert?

• Lets look at other states:Rule 11-702. Testimony by Experts

“If scientific, technical, or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence and determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an

opinion or otherwise.”

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TWO TERMS:

Frye

Daubert


• Basis of opinions by Experts:

• Rule 703 Basis of Opinion Testimony by Experts:

• Identical to language in FRE 703 in 2000.

• Balance between – need for an expert and the attempt to bring in inadmissible evidence.


• Rule 703 Basis of opinion Testimony by Experts:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.


• Rule 11-703 Basis of opinion Testimony by Experts:The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Motion to Preclude an Experts Testimony

A motion in limine may be put forth by the opposing attorney in an effort to preclude the expert from testifying about any or all of the opinions in his report or as he will purportedly testify about. This is not a motion regarding qualifications, but about the “Opinions.”

Fyre/DaubertChicken or Comedy?

“ I have heard a lot about Frye and Dauber hearings. What do they mean to me? Should I be concerned? How do I avoid this unpleasant hearing?”

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New Mexico and Tennessee (Most states and the Federal system)

follow Daubert?Dating back to 1923, the “Frye Test” has been considered the “general acceptance ” test for admissibility of scientific evidence. However, in New Mexico and Tennessee state courts follow “Daubert” which is the standard established by the United States Supreme Court in 1993. The Daubert case allows the judge to act as “gatekeeper” in determining admissibility of the opinions and testimony of an expert.

Do New Jersey, Maryland and Pennsylvania follow Daubert?

These states, along with some others, are in the minority and still utilize the “Frye Test” or the “general acceptance ” test for admissibility of scientific evidence.

(LETS READ FRYE)

NO

What about New York? Alternate Dispute Resolution

• ADRProcedures for settling disputes by means

other than litigation; e.g., by Arbitration, mediation, or minitrials.

Advantages of ADRs:� less costly than trials and litigation, and � more expeditious than litigation.

BINDING or NON-BINDING

Why ADR? ADR GOAL- RESOLVE

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WHAT WOULD LINCOLN SAY? Why ADR?

ALTERNATE DISPUTE RESOLUTION

• ARBITRATION?

What is Arbitration?

The submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award—a decision to be issued after a hearing at which both parties have an opportunity to be heard.

ADR Process

ALTERNATE DISPUTE RESOLUTION

• MEDIATION

What is Meditation?

A settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their disagreement

MEDIATION

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MEDIATION

THE TEN COMMANDMENTS

OF

MEDIATION

MEDIATION

NOT JEFF LUCAS’ TEN COMMANDMENTS

SOURCE: Louis C. Schmidt, Jr, THE PENNSYLVANIA LAWYER, The 10 Commandments of Mediation, May/June 2015s

1st COMMANDMENT

THOU SHALT REMEMBER THAT MEDIATION IS NOT AN ADVERSIAL PROCESS!

Attacking the other side gets you no where.

Boasting about how correct or strong your position is gets you no where.

Show respect to everyone’s job, position, and circumstances.

2nd COMMANDMENT

THOU SHALT HAVE AN OPENING STATEMENT!

Attorney and party’s opportunity to talk to the mediator AND the opposing side.

Experts participate in preparing the statement and providing technical advice to the attorney.

This is the chance to make a first impression. All involved, including the parties, may want to make an opening statement. Expert should work with attorney on his/her part.

3rd COMMANDMENT

THOU SHALT SHOW RESPECT!

Respect the process.

Treat everyone involved with respect.

Be polite! Be courteous! Be helpful.

4th COMMANDMENT

THOU SHALT BE FORTHRIGHT!

Everyone must be able to rely on what you say.

Don’t Play cards!

If you are at the bottom line—you better be.

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5th COMMANDMENT

THOU SHALT BE A LISTENER!

This is what mediation is about.

Listening enhances realization of the true interest of the involved parties.

Be a reflective listener when needed.

6th COMMANDMENT

THOU SHALT BE PREPARED!

This makes you the expert!

Know the parties positions and reasons they are taking the positions. Know where you/they would like to settle and where settlement would likely occur.

Failing to prepare as an expert is preparing to fail!

7th COMMANDMENT

THOU SHALT HAVE SETTLEMENT AUTHORITY!

This allows for settlement to occur.

This is an ABSOLUTE MUST.

As an expert, do not be afraid to render your opinion on settlement, but do not become emotionally attached to you position.

8th COMMANDMENTTHOU SHALT DEMAND A MEMORANDUM

OF UNDERSTANDING!

This puts things in writing, at least the essential terms!

This avoids altered memory and buyer’s remorse.

Experts should assist in his/her role as expert, unbiased party, a third set of eyes, and to recommend as needed.

9th COMMANDMENTTHOU SHALT SUBMIT A

MEDIATION MEMORANDUM !

This puts things in writing, AGAIN, but prior to the mediation to assist the mediator.

An expert’s role is imperative in participating in the preparation of the memorandum.

This saves time--- ENOUGH SAID!

10th COMMANDMENTTHOU SHALT RESPECT CONFIDENTIALITY!

Know what must be kept confidential.

Know your code of ethics!

Know when not to say anything, even if it is not “confidential” but learned during the ADR process.

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11th COMMANDMENT

DOES ONE EXIST!

An apology and sincerity go a long way!

RULES TO FOLLOW in MEDIATION

PREPARATION – (ALL PROFESSIONALS)

A COST-BENEFIT is useful!

USE YOUR SKILLS

SPEND TIME WITH ATTORNEY-CLIENTTHE PROCESS TAKES TIME

A GOOD MEDIATOR IS A MUST

RULES TO FOLLOW in MEDIATION

CLIENT’s INTEREST are #1

LISTENING IS CRITICAL

FLEXIBILITY (not soft) PARTAKE IN ESTABLISHING CREATIVE SILUTIONS

FAILED MEDIATION may lead to SUCCESSFUL NEGOTIATIONS

PUT THE AGREEMENT IN WRITING

What kind of cases might an expert surveyor become involved?

• THE CLASSIC INVOLVING EXPERT SURVEYOR’S

• OTHER CASES

Classic Boundary Line Disputes

The Fairfax Line – 1649 Land Grant – 5,000,000 ac.

Northern Neck in Virginia

(See article by David Lee Ingram)

Mason/Dixon Line- 1632 grant – division of South

and north – PA and MD

Four Corners -- AZ, NM, CO, UT

1860s – still disputed

Nevada/Cali. Line – 600 miles of dispute

Casinos in NV or CA- legal?


St. George and-- disputed line for 250 years

Shelburne, VT 2007 building permit issue raised

the dispute again.

Ian Flemming (5’)- where did he pen “James Bond”

property damages 10,000 pounds

legal fees >120,000 pounds.

African wars - Danfur, Sierra Leone, Rwanda,

Nigeria

Telatovich/Mac - 20 strip behind the properties

adverse possession.

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Classic Boundary Line Disputes-States

Tennessee/NC-- disputed line for 250 years

Tennessee/GA -- 35th parallel (2008)

.�Where the missing Camak Stone stood�Tennessee Georgia Alabama Border

Bryson/Humphrey – Criminal Murder case (2009)

Classic Boundary Line Disputes-States

Georgia/South Carolina – 497 U.S. 376 (1990)

South Carolina Coastal/Lucas – 505 U.S. 1003 (1992) This case is a landmark United States Supreme Court Case involving the property line along the ocean. It involves whether there is a taking.

.

<- Savannah River ->


523 U.S. 767

NEW YORK v. New Jersey

Legal Principles in Boundary

Line Disputes

Letters Patent

Adverse Possession

Equity- Equitable

Riparian Rights

Navigation RightsWater Rights

PrescriptionAcquiescenceLachesCommerce ClauseEminent DomainCondemnationEasement RightsMedium Filum Acquae

Legal Principles in Boundary

Line Disputes

Non-recorded TransfersIntrafamily transfersInternational LawMaritime LawLand Grants

Survey Principles in Boundary

Line Disputes

Adverse Possession Right Angle Principles

Equity- Equitable Acreation

Riparian Rights Island RuleRatification Family Conveyances

Flood Stage Headwater-Headwater

Ordinary Water lines Principle

Emerging Islands Medium Filum Acquae

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Survey Principles in Boundary

Line Disputes

Eminent Domain – Tri-equidistantCondemnation

Acreation

Easement Lateral Seaward Boundary

Spoil Deposits/Avulsion Land Grants

Boundary Line Disputes

CASE STUDY

Classic Case StudyRapides Parish Police Jury v. Grant Parish Police Jury,

924 So.2d 357 (La.App 2006)

A dispute over the boundary line between Rapides Parish and Grant Parish in Louisiana arose in 1997. As a result, Grant Parish brought suit against Rapids Parish. While the reasons the dispute came about were not clear, the property at issue, because of the “dispute property line” involved thousands of acres. At stake would be the right to potentially millions of dollars in tax revenues (Value of case estimated at $500 Million Dollars) depending on the outcome of the case and the “location” of the dispute property line.

Case Study

CAPTION: Rapides Parish Police Jury v. Grant Parish Police Jury,

924 So.2d 357 (La.App 2006)

While, in my opinion, the holding in the case was not remarkable, what is remarkable is the time and effort the appellate court expended on the “expert surveyors,” (including an extensive amount of criticism and praise) involved in the matter.

THE CAST OF CHARACTERS!

• The Court of Appeal- Louisiana

• Opinion wrote by Chief Judge Thibodeaux

• Plaintiff-Appellant Grant Parish

• Defendant-Appellee Rapides Parish•

THE CAST OF CHARACTERS !!

Note that these are the experts mentioned in the opinion, other than surveyors. All these experts are experts hired by Rapides Parish .

•Thomas Howell Ph.D. –Historian

•Ernest Easterly -

Attorney/Geographer

•Joseph Young Ph.D. –Dendroecologist

•Lewis Peters, Ph.D. –Forester

•Paul Kemp, Ph.D. -Hydrologist

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THE CAST OF CHARACTERS II

Willis Engineering, Inc.– Frank Willis – Rapids Parish

Surveyor– Alexandria, La.

• WWW.WILLISANDCOMPANY.NET

Pan American Engineers, Inc.

- Several Surveyors (3)

- Grant Parish Surveyor (municipal)

-Alexandria, La

-WWW.PAEALEX.COM

THE CASE

PLEASE REFER TO THE CASE PROVIDED

IN THE HANDOUT MATERIALS.

However, C.J. Thibedeau was not messing around!!!!

Criticism of Pan American

1. Excluded their land survey!

2. Improperly failed to designate specific subject matter in survey for which he was responsible.

3. Failed to review certain field notes or perform closure calculations.

4. Had unexplained ambiguities and credibility problems.

5. Anomalies in survey went unexplained.

6. Expert testimony indicated that survey was not what it purported to be!

However, C.J. Thibedeau was not messing around!!!!

•• Praise of Willis

Mr. Willis is a registered professional engineer, registered professional environmental engineer, and registered land surveyor who has taught courses at LSU…his knowledge of the Red River went beyond his professional credentials…provided extensive testimony at trial and via his eighty page survey report regarding his search for legislative intent..

(Now the letdown)THE HOLDING

The court in a 41 page decision affirmed the trail court’s decision in favor of Rapids Parish. The appellate court held that the trial court properly established the boundary based upon the “LINE OF ACCEPTANCE.”

The trial court properly granted the motion in limine (Daubert hearing) to exclude the original PAE survey and accompanying testimony and exhibits, arguing improper methodology and failure to meet minimum standards….

My Opinion

The holding in this case for the Appellate Court was easy and predictable. It wasted 41 pages to affirm the findings of the trial court regarding the “Line of Acceptance.” However, the lessons learned from the forensic practitioner’s standpoint can not be forgotten. But, one should remember that the answers to the many “whys” that arise from the actions of Pan Am…are lost in the facts, not revealed, and unknown.

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My Opinion-Lessons

A forensic surveyor reviewing this matter should take away many lessons including the importance of proper methodology for surveying, retracement surveying and legal description as to the “points” relevant to identify the boundary. The problem with identifying the point described by :

“Commencing at a point on the Red river where the Daro empties into said river, and thence returning east to the point where Little river empties into Catahoula Lake;…thence down the Red River to the point of starting, the mouth of the Daro”

shows that what appears to be a simple description of a point on a Parish Boundary, turns out to be the primary issue related to the dispute over thousands of acres and millions in revenues.

Lastly, the Forensic Surveyor is exposed to the harsh realities of litigation, Daubert hearings, criticism and possibly a public assault on the credibility of a professional.

The Willis Report

• Forensic Surveyor for Rapides Parish• Report was 86 pages long.• Judge gave “kudos” to Mr. Willis.• Mr. Willis initially did not want the matter.

• Mr. Willis (and other experts for Rapides Parish) billed slightly less than ½ Million Dollars for their services.

• Grant Parish was ordered to pay the fee.

The Willis Report(The Legal Description)

The Willis Report(The disputed lines)

The Willis Report(The disputed line)

The Willis Report(The Bringhurst Map)

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The Willis Report(Elevation 36)

The Willis Report(The three lines)

The Willis Report(The man himself)

Pan American Engineers(So What Happen to Pan Am Engineers)

(All hearsay)

Still in Business. (Been around for 60 years.)On the web.Reportedly were sued for malpractice.Reportedly may have paid a nice

settlement.Reportedly one surveyor “quit” surveying.

Reportedly one surveyor was “upset” with the entire situation and no longer surveys.

CASE STUDIES CASE STUDIES

The next section of this seminar deals with various case studies While the studies are based upon certain facts from various cases, the actual fact pattern may have been modified to protect the innocent.

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Review –Two Types of Cases

• The Classic Case – The Boundary Dispute

Rapides Parish v. Grant Parish

• Other CasesInformation Gathering - AccidentsMethodology Cases – (Daubert) Record Data Rock Slides –

Failures, Etc. (The future)

Sunday 4:07 a.m.

• You are awaken by a phone call• The caller states, “There’s been a serious

accident on Route 78, two fatalities, numerous serious injuries, six vehicles involved ----- can you go gather data for us?”

• What would you do?

The Accident Scene Looks Like this!!!

•

Accident Investigation

• The Surveyor’s Role is to Document the Scene!

• What does the scene look like?• Automobile Accident

• Bridge Collapse – Minneapolis• Penn’s Landing Pier – Philadelphia• Landslide

• The Twin Towers

Legal Issues in Automobile Crashes

• Tort• Negligence• Contributory Negligence• Liability

• A preponderance of Evidence• Rules of Civil Procedure• Rules of Evidence

Automobile Accident Case Study

The components of an Automobile Accident are:

1. The Vehicles

2. The Environment/Roadway

3. The People

The Surveyor must know what information is critical to the “Investigation ”

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Automobile Accident – Case Study #1

FACTS – Vehicle one was traveling with the right of way.

Vehicle two pulled out from a stop sign.

A collision resulted – injuries.

Vehicle two brings suit against Vehicle one.

Black box results – vehicle one was exceeding the speed limit by approximately 20 mph.

Sketch of the Accident Scene !

Post-collision vehicle

positions!

DAMAGED SUV – 1ST PHOTO

DAMAGED SUV – 2nd PHOTO DAMAGED SUV – LASER SURVEY

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DAMAGED SUV – LASER SCAN TOP VIEW

DAMAGED AUTOMOBILE -1ST

PHOTO

DAMAGED AUTOMOBILE – LASER SCAN

PLEASE NOTE THE DIRECTION OF THIS TIRE!!!

DAMAGED AUTOMOBILE – LASER SCAN

TOP VIEW

VEHICLE DAMAGE PROFILES

DAMAGE PROFILE - SUV

DAMAGE PROFILE -AUTOMOBILE

VEHICLE COLLISION-FULL IMPACT

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VEHICLE DAMAGE PROFILES

DAMAGE PROFILE - SUV

DAMAGE PROFILE -AUTOMOBILE

Lessons Learned Continued

• The damage profile provides critical information as to whether vehicle two was:

-turning left

-going straight

-or turning right.

(SEE NEXT SLIDE)

• Review all the data in the police accident report. This case, in a small township, was investigated in a thorough manner and provided great evidence to properly reconstruct this accident.

What direction was Vehicle 2 going?

Would you believe the expert that opined that Vehicle 2 was turning left at the time?

Case Study 2Accident Reconstruction Turning Vehicles

AERIAL VIEW OF INCIDENT LOCATION

PHOTO OF INCIDENT LOCATION

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PHOTO OF THE INCIDENT LOCATION

AERIAL VIEW OF INCIDENT LOCATION

How should a vehicle turn?

The Vehicle Code• § 3331. Required

position and method of turning.

(a) Right turn.--The driver of a vehicle intending to turn right shall approach the turn and make the turn as close as practicable to the right-hand curb or edge of the roadway.

AASHTO - AutoTURN

Lessons Learned !

Read the Expert Reports

Look at the Drawings/Sketches!

What “science” was used or what is the experts basis for his/her conclusions?(Frye/Daubert motion?)

Have your expert provide a supplemental report – if you think it is necessary

HOW SHOULD THE BACK WHEELS TRACK DURING THE TURN?

IS THIS HOW THE VEHCILE SHOULD SAFELY TURN INTO THE

DRIVEWAY?

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IS THIS THE 16’ TURNING RADIUS IN ACCORDANCE WITH AASHTO –

AUTOTURN PROGRAM?

HOW DO VEHICLES TURN? DO FRONT WHEELS TRACK

FRONT/BACK?

Were there any other errors in the sketch?

The drawing itself – the white edge line was WRONG!

The Guiderail flared ends were WRONG!

Why is that important – because the plaintiff's expert would have the plaintiff traveling on the shoulder if the white line were properly drawn! Did he measure it?(opportunity for powerful cross-examination)

EVEN THE NORTH ARROW IS OFF BY ABOUT 20⁰

Pedestrian - Automobile Accident Case Study # 3

The components of an Pedestrian -Automobile Accident are:

1. The Vehicles

2. The Environment/Roadway

3. The People

HUMAN FACTORS – PEOPLE SYSTEM RELATIONSHIP

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Pedestrian Accident

The next series of photos are of crash testing performed in Florida with a crash dummy (me?).

There were five separate scenarios photographed.

Look at the photos and determine what evidence is available and relevant.

Evidence

• Definition: any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties, and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.

• (Blacks Law Dictionary)

Evidence

• How often do you have first hand knowledge about a boundary survey?

• Where do you get that information?• Is it hearsay?• Is it reliable?

• Is it admissible?

The surveyor as investigator-boundary case

• Wooden post – rots away – stains the dirt – round at surface – to nothing below – but watch, you have just destroyed evidence to find this!

THE GOAL OF A RETRACEMENT IS TO WALK IN THE FOOT PRINTS OF THE ORIGINAL SURVEYOR AND LOCATE

EVIDENCE!

The surveyor as investigator-boundary case

• Fence wire – in trees.• Stones – easy to move – check leaves

underneath• R.O.T. Locate the evidence properly, do

not destroy it – survey-photos-etc(Spoliation Cases)

OTHER EVIDENCE TO LOOK FOR:

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The Best Evidence

• 1. Vehicle Position• 2. Point of Contact• 3. Skid marks Why are they important”? (See handout)

• 4. Yaw Marks• 5. Debris

• 6. Damage – Other property• 7. Damage – the vehicle.• 8. Off the ground?

• 9. Road Scars – scrapes – gouges.• 10. Body part location.

• 11. Splatter---(Yuck)

GATHERING DATARoadway/Environment

• Tire Marks and what they mean-

Skidmarks – tire friction marks made bya tire that is sliding without rotation on aroad or other surface. Sliding may bedue to braking, collision damage or,rarely, to other circumstances.

Other types of tire marks!

Yaw Marks – a scuffmark made on a surface by a rotating tire which is slipping more or less parallel to its axis.

1.Typically Curved2.Striations – unique3.Can be used to estimate speed.

What Qualifies you as an Expert?

Or are you just Witness?Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness’ testimonyin the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the perceptionof the witness, and (b) helpful to a clear understanding of

the witness’ testimony or the determination of a fact in issue, and(c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec.

1, 2000.)

What Qualifies you as an Expert?

SOUTH CAROLINA Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.

The Golden (Experts) Rule !

Rule 702. Testimony by ExpertsIf scientific, technical, or other specialized knowledge will assistthe trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge,skill,experience,training, or education, may testify thereto in the form of

an opinion or otherwise, if (1) the testimony is based upon sufficientfacts or data, (2) the testimony is the product of reliableprinciples and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)

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The Expert’s Opinion

Rule 703. Bases of Opinion Testimony by ExpertsThe facts or data in the particular case upon which an expert

bases an opinion or inference may be those perceived by or made

known to the expert at or before the hearing. If of a type reasonably

relied upon by experts in the particular field in forming opinions

or inferences upon the subject, the facts or data need not be

admissible in evidence in order for the opinion or inference to be

admitted. Facts or data that are otherwise inadmissible shall not

be disclosed to the jury by the proponent of the opinion or inference

unless the court determines that their probative value in assisting

the jury to evaluate the expert’s opinion substantially outweighs

their prejudicial effect.

(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec.

1, 2000.)

Are South Carolina, Alabama, Arizona and Pennsylvania Different?

Rule 702. Testimony By ExpertsIf scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Are Arizona, New York and Pennsylvania Different?

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (Sounds Like the Federal Rule)

Are South Carolina, New York and/or Pennsylvania Dauber or Frye State

( Do you really care about this?)Pa.R.E. 702 does not alter Pennsylvania's adoption of the

standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which requires scientific evidence to have

"general acceptance" in the relevant scientific community.

The Key concept is “general acceptance” in the relevant scientific community.

Pennsylvania and Florida are FRYE STATE!NEW MEXICO is A DAUBERT STATE!

South Carolina IS DAUBERT!

The Expert Report-FYI

• No Depositions in PA court. Depositions permitted in Federal Court, NJ, DC, FL, MD.

• A report is the basis of the testimony you are providing

• Must include methodology, basis, etc (SOUNDS LIKE DAUBERT TEST)

• Opinions to a “reasonable degree of Surveying/professional certainty”

• In NJ – “reasonable probability

PREPARATION - TESTIFYING

• “Preparation

• “Coaching”

• “Horse-shedding”

• “Wood-shedding”

• “Sandpapering”

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PREPARATION - TESTIFYING

• “Horse-shedding” – In the past there were carriage sheds near the courthouse in certain areas. James Fenimore Cooper is credited with coining the phrase “horse-shedding the witness. Attorneys would meet with witnesses in these sheds and rehearse testimony for trial.

PREPARING TO TESTIFY

• Preparation for testifying at a deposition-– Start Early

– It is your attorney’s duty to prepare you – BUT

– Remember the three Ps

– Prepare yourself – you are a professional

– Depositions are not like trial testimony

(personal feeling – they are much more difficult and not pleasant experiences)

– Clothing – always professional – depositions become less formal – unless videotaped\

PREPARING TO TESTIFYContinued

Preparation for testifying at a deposition-– Clothing – always professional – depositions become less

formal – unless videotaped\– Behavior – be yourself – no grandstanding – no acting – Looks – stares – glances – looking down – all are non-verbal

cues (good or bad-both ways)– Make sure you are projecting clear and loud enough for the

jury – stenographer to hear.– Never say – “let me be honest with you.”– Watch for the “Ummmms” “okays “ and “know what I mean?”– Once excused – leave

TESTIFYING AT TRIAL

• Direct Examination – this is home run time. Your attorney should be throwing you lob balls. (High hanging curve balls)

• Cross Examination – expect the heat. This is two on- two out bottom of the 9th

time. Expect the fast-ball and/or slider!

Direct Examination

• Review your reports – have it with you

• Review all the material you relied on.

• Rule 612 – refreshed recollection material is discoverable – as expert –my position is so what – but problems of work-product and privilege could arise.

DAUBERT – SHORT COURSE

• Case cite:

• Daubert v. Merrell Dow Pharms., Inc. 509 U..S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

• Remember Frye (1923)

• A Daubert hearing refers to a pretrial hearing where a court determines whether a proffered expert witness’s testimony is both relevant and reliable, and thus admissible as evidence pursuant to Federal Rules of Evidence 702 and Daubert

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The Daubert Rules

• Daubert – examines the reliability of all experts, regardless of field of expertise, in Federal Court (and most state courts.)

• The decision on admissibility of evidence is by the Judge – not the jury.

Restated – The judge is the GATEKEEPER

• Jury Responsibility• If an expert’s testimony is

admitted, the jury still determines how to weigh the testimony and is free to reject the expert’s testimony in its entirety.

• Kuhmo -The case rejected the distinction between “scientifc” expert testimony “ and “technical or other specialized” expert testimony.

The Daubert Rules(Continued)

• Challenge – A Challenge under Daubert may be raised in limine, on voir dire, or after cross examination. (When to raise this is a strategy move)

• An attorney can make a motion in limine to determine the admissiblity of his own experts testimony. This would likely only be done when the testimony is unusual, novel or otherwise likely subject to a Daubert Challenge.

• Court Responsibility• Like rulings on admissibility, the

court may defer ruling on a Daubert Challenge until the testimony of the expert is heard at trial, and in the context of all testimony at the trial.

• Timely Challenge -The less notice the court has of a challenge, the less likely the court will exclude the testimony - So when should an attorney raise the challenge?

GATEKEEPER

• Federal Rule of Evidence Rule 702

• Three Major Requirements:• 1. The proffered witness must be an

expert, i.e., must be qualified,• 2. the expert must testify about matters

requiring scientific, technical or specialized knowledge, (an expert’s testimony is admissible so long as the process or technique the expert used in formulating the pinion is reliable,) and

• 3. the expert’s testimony must assist the trier or fact.

Under the Federal Rules of Evidence, the Trial Judge acts as a gatekeeper to ensure that any and all expert testimony or evidence is not only relevant but also reliable.

The Rules of Evidence embody a strong preference for admitting any evidence that may assist the trier of fact.

Rule 702, which governs the admissibility of expert testimony, has a liberal policy of admissibility.

Thank you!

QUESTIONS?

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