Legal Boundaries

Several years ago, Simon Sinek gave a TED Talk on marketing—a business, services, products, even ideas and beliefs. He used several real-life examples including the success of Apple, the achievements of the Wright brothers, and the beliefs of Dr. Martin Luther King. The video, now somewhat dated, is still available on TED Talks and the principles Sinek laid out are timeless.

Although his talk was focused on business success and inspiring leaders, the message, “start with why,” is easily transferable to winning in court as an expert. Since the essence of expert witness testimony is opinion-based, it is crucial to that testimony to have the ability of explain the “why” of your opinion. As Sinek reiterated in his talk, people do not buy “what” you do or “how” you do it—they buy the “why.” This will be true in court as well. 

For ease of discussion and to eliminate repetition over the respective roles of the trial court judge and the jury in a civil lawsuit, we will assume a court without a jury. This is most likely where you will be anyway, as most boundary disputes are tried without a jury. In such a trial, the judge has the triune role of law giver, equity dispenser, and the trier of the facts (e.g., judge and jury). In essence, the judge is the purchaser of what it is you are trying to sell—your opinion. 

In a boundary dispute case, the ultimate issue is the on-the-ground location of the property line between the plaintiff and the defendant. In other words, the established boundaries. To be sure we are all on the same page, a property line is the demarcation of the limits of the respective property rights (ownership limits) of the parties to the litigation. Most other questions are also working toward that ultimate issue, or they are somewhat irrelevant.

In my experience, most surveyors in court can explain “what” they did and maybe “how” they did it, but rarely can the surveyor explain “why” they did what they did. It is this crucial question that the judge is wanting explained in terms that are reasonable and understandable. When that doesn’t happen, the surveyor loses credibility with the judge, and loss of credibility is the death-nell of the expert’s testimony.

The only way to answer the “why” question in a boundary dispute case is through correct retracement theory. Unfortunately, for the individual and the profession as a whole, correct retracement theory can only be found in case law. It has not been described in any state statute, administrative code, or our so-called standards of practice. These sources only deal with the “what” and “how” questions, and no one is interested in buying the answer to those questions, especially a judge. This sumsup the existential problem facing the future of the land surveying profession—but I digress.

Correct retracement theory starts with the common law professional standard of care, which is universal in American Jurisprudence; what the reasonably prudent practitioner would do in like or similar circumstances. With that standard in mind, the surveyor needs to understand that retracement surveying is an evidentiary exercise, not a math and stakeout problem. Too many surveyors do not grasp this concept.  

The criterion for gathering and evaluating evidence is the “best available” evidence. Of all the evidence available to the retracement surveyor, measurements are always at the bottom of the list and rarely needed to answer the “why” question. When the surveyor’s answer to the “why” question is, “the measurements made me do it,” you’re done, and your credibility is shot. 

When the best available evidence has been gathered by the reasonably prudent practitioner then, just as with the role of the jury, it must be sifted, evaluated, and weighed.

In most cases, there is a large preponderance of the evidence that leads to the truth of the matter. That truth is then rubbed up against the “appropriate boundary law principles,” to render a well-reasoned opinion on the question the judge wants answered. Because, ultimately, that is also the question the judge needs to provide the parties—“why.”

Next time around we will take a deep dive into the “appropriate boundary law principles.”      

The purpose of this column is to encourage your questions on legal issues that affect the surveying profession. You are invited to send your questions to the editor of xyHt.