California Surveyors Forums

In 2003, my form typed legal descriptions of portions of a clients property at the request of the land owners agent.
Portions were described as being certain lands in one section and a certain roadway lying adjacent and west.

Agents and Land Owners used the legal descriptions to create an access easement and an area of benefit.

Now 12 years later, I am being harassed by new owner attorneys as to the specific use or restriction of said easement. I had never seen the easement document nor did I ever create verbage regarding its use maintenance restrictions etc.

After review, the legal description does indeed describe a roadway and also correctly describes lands benefited by said road way. Nothing wrong there . . .My burning question, How do these lawyers have the right to haul me into court and interrogate me for answers for which i do not know ?
Are they allowed to waist my time (and theirs) Is this a possible scenario for everything ever done from the beginning of (my) time ? Interrogate the Surveyor over actions borne by real estate agents / land owners other attorneys etc ?

How may I collect for my time ?

Any clues ? Thank you

The limitation on causes of action related to surveying issues generally begins from the date of discovery, not from the date of creation.
If an action has commenced, and has not been dismissed, all parties named as defendants will need to answer to summons.

I presume that this is in the discovery phase, and that you will be responding to interrogatories. Answer appropriately - not outside your surveying realm of expertise - and let the chips fall where they may.

You can always invoice for your time, but that is going to be a function of a signed contract, isn't it?

As a respondent, you are compelled to comply. As a percipient witness, you would have a given rate to charge a subpoenaing party, and as an expert witness, a higher rate yet.

Gentlemen. If you will indulge me you are absolutely entitled to compensation for your testimony. You have to put them on notice. goodgps, you need to invoke your rights. You are entitled to expert witness compensation. If you have note done this before, charge them, at a minimum $350.00 an hour:

Demand a check up front as they have to give that to you before the deposition.

As I mentioned, send them a letter invoking this code section:

CALIFORNIA CODE OF CIVIL PROCEDURE

RELATING TO EXPERT WITNESSES

SECTION 2034.410-2034.470

2034.410. On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list. The procedures for taking oral and written depositions set forth in Chapters 9 (commencing with Section 2025.010), 10 (commencing with Section 2026.010), and 11 (commencing with Section 2028.010) apply to a deposition of a listed trial expert witness except as provided in this article.

2034.420. The deposition of any expert described in subdivision (b) of Section 2034.210 shall be taken at a place that is within 75 miles of the courthouse where the action is pending. On motion for a protective order by the party designating an expert witness, and on a showing of exceptional hardship, the court may order that the deposition be taken at a more distant place from the courthouse.

2034.430. (a) Except as provided in subdivision (f), this section applies to an expert witness, other than a party or an employee of a party, who is any of the following:

(1) An expert described in subdivision (b) of Section 2034.210.

(2) A treating physician and surgeon or other treating health care practitioner who is to be asked during the deposition to express opinion testimony, including opinion or factual testimony regarding the past or present diagnosis or prognosis made by the practitioner or the reasons for a particular treatment decision made by the practitioner, but not including testimony requiring only the reading of words and symbols contained in the relevant medical record or, if those words and symbols are not legible to the deponent, the approximation by the deponent of what those words or symbols are.

(3) An architect, professional engineer, or licensed land surveyor who was involved with the original project design or survey for which that person is asked to express an opinion within the person's expertise and relevant to the action or proceeding.

(b) A party desiring to depose an expert witness described in subdivision (a) shall pay the expert's reasonable and customary hourly or daily fee for any time spent at the deposition from the time noticed in the deposition subpoena, or from the time of the arrival of the expert witness should that time be later than the time noticed in the deposition subpoena, until the time the expert witness is dismissed from the deposition, regardless of whether the expert is actually deposed by any party attending the deposition.

(c) If any counsel representing the expert or a nonnoticing party is late to the deposition, the expert's reasonable and customary hourly or daily fee for the time period determined from the time noticed in the deposition subpoena until the counsel's late arrival, shall be paid by that tardy counsel.

(d) Notwithstanding subdivision (c), the hourly or daily fee charged to the tardy counsel shall not exceed the fee charged to the party who retained the expert, except where the expert donated services to a charitable or other nonprofit organization.

(e) A daily fee shall only be charged for a full day of attendance at a deposition or where the expert was required by the deposing party to be available for a full day and the expert necessarily had to forgo all business that the expert would otherwise have conducted that day but for the request that the expert be available all day for the scheduled deposition.

(f) In a worker's compensation case arising under Division 4 (commencing with Section 3201) or Division 4.5 (commencing with Section 6100) of the Labor Code, a party desiring to depose any expert on another party's expert witness list shall pay the fee under this section.

2034.440. The party designating an expert is responsible for any fee charged by the expert for preparing for a deposition and for traveling to the place of the deposition, as well as for any travel expenses of the expert.

2034.450. (a) The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition.

(b) The expert's fee shall be delivered to the attorney for the party designating the expert.

(c) If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert's fee within five days of receipt of an itemized statement from the expert.

2034.460. (a) The service of a proper deposition notice accompanied by the tender of the expert witness fee described in Section 2034.430 is effective to require the party employing or retaining the expert to produce the expert for the deposition.

(b) If the party noticing the deposition fails to tender the expert's fee under Section 2034.430, the expert shall not be deposed at that time unless the parties stipulate otherwise.

2034.470. (a) If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert.

(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. In any attempt at an informal resolution under Section 2016.040, either the party or the expert shall provide the other with all of the following:

(1) Proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.

(2) The total number of times the presently demanded fee has ever been charged and received by that expert.

(3) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.

(c) In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court's determination as to the reasonableness of the fee shall be based on, proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.

(d) In an action filed after January 1, 1994, the expert or the party designating the expert shall also provide, and the court's determination as to the reasonableness of the fee shall also be based on, both of the following:

(1) The total number of times the presently demanded fee has ever been charged and received by that expert.

(2) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.

(e) The court may also consider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination.

(f) Upon a determination that the fee demanded by that expert is unreasonable, and based upon the evidence and factors considered, the court shall set the fee of the expert providing testimony.

(g) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to set the expert witness fee, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Mike,

Correct if, in fact, he is called as an expert by one of the parties. That role, as you well know, is vastly different with respect to proffering an opinion.

If named as a co-defendant, it is a much different matter.

More details (structural - no specifics), Dave?

At this point, it is probably like Warren said. One landowner is suing another over some issue related to a transaction that you had no direct involvement in, but since you had indirect involvement in that the descriptions you wrote were used, you get caught in the initial broad net where the attorney names everyone who may have had even remote involvement as defendants. Once they get the responses back from the first big pool of defendants, they determine who they may actually be able to show has some culpability for whatever the offense was.

Do like Mike says. Some who have long relationships with attorneys or have become sought after as an expert are able to charge their expert rate for prep and standby as well. For the rest of us, normal rate for prep and standby and 2 to 3 times your normal rate for testimony in deposition or court is closer to the standard. Many also state a minimum charge for those days they are summoned to appear, with that charge being anywhere from 4 hours of standby time up to roughly 8 hours at the expert testimony rate.

Send the attorney a letter along with your terms as an expert, including your rate sheet showing your expert witness and other rates. You could also explain in that letter that you were asked to write the descriptions, but had no part in preparing any of the conveyance or easement documents and had no knowledge of any terms of those documents. Perhaps once the lawyer realizes that 1) you had nothing to do with determining or identifying the permitted uses of the easement, 2) that calling on you to testify to the fact that you had nothing to do with anything that the lawsuit is about will be expensive, and 3) that you don't have enough money to make it worthwhile to try to sue you anyway, they will drop you from the suit.

Good luck.

I think we have the same issue here. Been reading a lot about the legality of my case and thanks guys, you've been all very helpful.

Thank you very much

As stated above, the attorney goes after anyone even remotely involved and they short it out later.
This happens a lot when someone gets hurt, esp a civilian, on a construction site. The plaintiffs atty hauls in EVERY sub contractor that has anything to do with the job.
There is a clause in the CLSA contract that protects us with regard to legal expenses when we are not at fault. I know it saved one company a few thousand dollars.

Companies love to have us hold them harmless, try and get them to hold you harmless - GFL