About Amerisurv| Contact    
Magazine | Newsletter    
Flickr Photos | Advertise    
HomeNewsNewsletterAmerisurv DirectoryJobsStoreAuthorsHistoryArchivesBlogVideosEvents

Sponsored By

Software Reviews
Continuing Series
An RTN expert provides everything you need to know about network-corrected real-time GNSS observations.
Click Here to begin the series,
or view the Article PDF's Here
76-PageFlip Compilation
of the entire series
Test Yourself

Got Answers?
Test your knowledge with NCEES-level questions.
  Start HERE
Meet the Authors
Check out our fine lineup of writers. Each an expert in his or her field.
Wow Factor
Sponsored By

Product Reviews
Partner Sites







Spatial Media LLC properties




Home arrow Archives   The American Surveyor     

Angle Points: Having a License Doesn't Make You an Expert Print E-mail
Written by Michael J. Pallamary, PS   
Saturday, 04 January 2014

A 262Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

There is a common misconception by many licensees that being authorized to practice land surveying makes one an instant expert. Regrettably, this is not true. Recognition as an expert is bestowed by those practitioners who have been subjected to the rigors of a hostile evaluation and the associated procedures that go along with earning the title of expert; it is not earned by self appellation or by the filling out of a form--it is the product of proven expertise demonstrated by competency and challenge. A license to practice is simply that, merely a license, one awarded after the applicant demonstrates that he/she has the minimum qualifications to practice land surveying.

Not everyone is capable of being an expert. The earliest known recognition of the use of an engineering expert arose in 1782, when the noted civil engineer John Smeaton testified as to why Wells Harbor in Norfolk, England was silting up. Smeaton's testimony, convincing and acknowledged, laid the foundation for the modern rules on expert evidence. Smeaton is recognized as the father of civil engineering, a practice he developed to distinguish it from military engineering.

In the United States, there are various rules that govern the recognition of an expert beginning with the admissibility of expert testimony. Federal Rule of Evidence 702, captioned Testimony by Expert Witnesses states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(A) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(B) the testimony is based on sufficient facts or data;

(C) the testimony is the product of reliable principles and methods; and

(D) the expert has reliably applied the principles and methods to the facts of the case.

Under Section 720 of California's Evidence Code, "(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." Section 721 (a) states in part:

A witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.

Rules such as these are intended to validate the qualifications of an expert by verifying he/she is qualified to offer opinions. Mere appointment without validation is insufficient. This vetting procedure is known as voir dire, from the French meaning "to speak the truth." It is the process by which potential experts are questioned about their backgrounds and qualifications before being allowed to offer their opinions as mere licensure is not enough.

Before an expert is permitted to offer an opinion, the moving party must establish the expert's competency and knowledge in the profession and not simply based upon experience, education, length of time of possessing a license, or the expert's credentials. The opposing attorney is allowed to voir dire the witness to bring out matters that might prevent his/her qualification as an expert. A witness is not deemed an expert until qualified as such by the court.

Within California, a corollary is found in Section 415 of the California Code of Regulations ("CCR"), Practice Within Area of Competence:

A professional engineer or land surveyor licensed under the Code shall practice and perform engineering or land surveying work only in the field or fields in which he/ she is by education and/or experience fully competent and proficient.

What this means is even though one has a license to practice, he/she is not inherently permitted to practice in a certain area unless he/she is fully competent and proficient. Mere licensing hardly satisfies this legal requirement; proficiency at this level can only be attained after considerable effort and focused training and practice. In addition, an expert must possess unique knowledge about the topic in hand and the material must be of a technical or scientific nature and as a rule, simple licensing does not test for these areas. The scientific knowledge offered by an expert must assist the trier of fact in understanding the evidence or determining a fact in issue in the case as well as assisting a jury or a judge or some other tribunal as to the relationship between the technical matters and the issues at hand, all of which must be considered in the context of the rules of evidence. The testimony must adhere to the rules relating to introduction and challenge. Indeed, anyone can offer an opinion but is it an expert opinion?

Under American jurisprudence, the rules provide that the judge make the threshold determination regarding whether certain scientific knowledge would indeed assist the trier of fact in the manner contemplated by Rule 702. This necessitates a preliminary assessment of whether the reasoning or methodology underlying the testimony is technically valid if that reasoning or methodology can be applied to the facts in issue. Was proration appropriate especially when it is a rule of last resort?

With regards to the role of a Technical Expert or an Expert Consultant, absent a proven and tested record of competency and submission to the rigors of voir dire and qualification challenges, it is a misnomer to call an individual like this an expert. At best, their activities constitute what is more properly known as a peer review, a process that focuses on the performance of professionals, with a view to improving quality, upholding standards, or providing certification. It is most commonly found in the health care profession and it is a valid process for providing guidance in medical treatment. In situations like this, the review is performed by a number of people and not one individual.

In furtherance of the importance of an expert and the absence of qualified testimony, a test, known as The Daubert Test, applying the "Daubert Trilogy," an analysis based upon the direction provided by three important cases: Daubert v. Merrell Dow Pharmaceuticals Inc., General Electric v. Joiner, and Kumho Tire Co., Ltd. v. Carmichael. The lead case, Daubert, established the standard for evaluating whether scientific evidence is based on scientific theory that can be and has been tested; whether the scientific theory has been subjected to peer review and publication; the known or potential rate of error of the scientific technique and, whether the theory has received general acceptance in the scientific community. In evaluating the relevance of the theory, trial courts must consider whether the particular reasoning or methodology offered can be properly applied to the facts in issue, as determined by "fit." There must be a valid scientific connection and basis to the pertinent inquiry. In land surveying, owing to the unique procedures of survey employed in different neighborhoods and communities, the prevailing standard of care and familiarity with local surveyors and the value of such things as unrecorded survey records, all must be considered.

The principles in Daubert were expounded in Kumho Tire Co., Ltd. v. Carmichael, where the evidence in question was from a technician and not a scientist, i.e., a non-expert or a technical expert, similar to so called Technical Experts and Expert Consultants. In Kumho, a technician was going to testify that the only possible cause of a tire blowout must have been a manufacturing defect, as he could not determine any other possible cause. The Court of Appeal admitted the evidence on the assumption that Daubert did not apply to technical evidence, only scientific evidence. The Supreme Court reversed, saying that the standard in Daubert applied and the evidence and testimony of the alleged expert did not meet the standard.

Under California's Code of Civil Procedure at 2034.260. (a) All parties who have appeared in [the] action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand and it must include an expert witness declaration signed only by the attorney for the party designating the expert along with a brief narrative statement of the qualifications of each expert and the general substance of the testimony that the expert is expected to give and a representation that the expert has agreed to testify at the trial along with a representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. The expert's testimony can be challenged by impeachment. And, according to Federal Rule 26(2-b), before an expert witness can offer testimony, that person must provide a written summary opinion discussing the testimonial subject matter, substance of facts and opinion, basis for opinion, reports, a list of all publications authored by the witness in the preceding ten years, a record of all previous testimony including depositions for the last four years, disclosure statement, report signed by the expert, and disclosing attorney. The disclosure statement generally includes additional information such as qualifications; scope of engagement; information relied upon in formulating opinion; summary of opinion; and publications.

More than not, the imprimatur of a governmental agency does not automatically make either the results or witness' testimony inherently trustworthy, credible, or even reliable. A troubling example of misrepresentations and doctored reports was documented by the U.S. Department of Justice in a presentation before the House of Representatives, Subcommittee on Crime, Committee on the Judiciary in Washington, DC. There, the principle findings and recommendations of the Justice Department's report addressed "significant instances of testimonial errors, substandard analytical work, and deficient practices" including policies by the Federal Bureau of Investigation Laboratory. The proceedings can be found at tinyurl.com/lgl3y7f.

Michael Pallamary, PS, is the author of several books and numerous articles. He is a frequent lecturer at conferences and seminars and he teaches real property to attorneys and other members of the legal profession. He has been in the surveying profession since 1971.

A 262Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

< Prev   Next >

 American Surveyor Recent Articles
Thought Leader: Land is Too Important to Be Left to Land Specialists
A while back I was searching the Internet for an old treatise on land titles. A Google query yielded a book published in 1914. The author was Charles Claudius Kagey and the book was titled "Land Survey and Land Titles, a book for boys and girls, a reference volume for property owners, a text ....
Read the Article
Jason E. Foose, PS 
Decided Guidance: Wacker vs. Price - Irony in Sevenfold
This month's case takes us to Phoenix, Arizona in 1950. The Arizona Supreme Court went all guns-a-blazin' in Wacker vs. Price (216 P.2d 707 (Ariz. 1950)). Maybe it's just me, but I'm sensing plenty of irony and have taken license to point it out along the way. I like what the Court did with this case ....
Read the Article
Allen E. Cheves 
Around the Bend - A Visit to Carlson Software
The Ohio River is one of America's greatest, running near 1,000 miles between Pittsburgh and the Mighty Mississippi. Much of the coal and other products that fueled our nation's industrial expansion flowed between the shores of this maritime ....
Read the Article
Lee Lovell, PS 
Surveying & Mapping Economics Part 3 - Customers & Services
This article continues an inquiry into the economic conditions of the Surveying and Mapping industry (NAICS 541370) using data from the U.S. Census Bureau. This time we will look at customers and services. The data comes from the Economic Census conducted every 5 years on American ....
Read the Article
Jerry Penry, PS 
True Elevation: Black Elk Peak
Black Elk Peak, located in the Black Hills region of South Dakota, is the state's highest natural point. It is frequently referred to as the highest summit in the United States east of the Rocky Mountains. Two other peaks, Guadalupe Peak in Texas and ....
Read the Article
Larry Trojak 
Bringing The Goods - Mobile Scanning an Integral Component
When Jim Smith, Jerrad Burns and Charlie Patton left the Memphis division of a major construction company in 2015, they took with them the knowledge of how to get even the most complex jobs done and what equipment could best serve them in making that happen. So when they joined West ....
Read the Article
Lee Lovell, PS 
Test Yourself 41: Integers, Integers, and Integers
ABF is a 5:12:13 triangle, ACF is a 48:55:73 triangle, ADF is a 3:4:5 triangle, and AEF is a 7:24:25 triangle, all with integer sides and inscribed in a semi-circle. What are the lengths of BC, CD, and DE? ....
Read the Article
Wendy Lathrop, PS, CFM 
Vantage Point: Sunset or Sunrise?
While we often think of legislated government programs as static, they do change over time. Such evolution and opportunity for transformation are part of the dialogue in reauthorizing these programs. Every so many years there is a sunset on each government program, and this September is the ....
Read the Article


Amerisurv Exclusive Online-only Article ticker
Featured Amerisurv Events
List Your Event Here
contact Amerisurv


JAVAD Intros
Spoofer Buster

press [at] amerisurv.com
Online Internet Content


News Feeds

Subscribe to Amerisurv news & updates via RSS or get our Feedburn
xml feed

Need Help? See this RSS Tutorial

Historic Maps

post a job
Reach our audience of Professional land surveyors and Geo-Technology professionals with your GeoJobs career ad. Feel free to contact us if you need additional information.


Social Bookmarks

Amerisurv on Facebook 

Amerisurv LinkedIn Group 

Amerisurv Flickr Photos 

Amerisurv videos on YouTube 



The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
905 W 7th St #331
Frederick MD 21701
301-695-1538 - fax