Rules of the Game: A Boundary Arbitration
Professional Surveyor Magazine - May 2011
Knud Hermansen, LS, PhD, PE, Esq.
Read Part 1
Part one of this series (PSM March 2011) describes a boundary arbitration from the point of view of the arbitrator, with emphasis on lay testimony. This final part continues with more testimony examples and describes the conclusion of the example arbitration. Names and certain facts have been changed to protect privacy.
As the arbitrator at a boundary arbitration, I like to give the attorneys the option of putting on their experts first. This courtesy keeps the cost down because their clients won’t have to pay to have the experts wait for their turn to testify.
That courtesy backfired in the main arbitration I am recounting in this article because the surveyors wanted to hear the testimony of Gloria, one of the lay witnesses. Gloria was called to testify after the surveyors had completed their testimony. She had spent most of her life living and working out of a rented mobile home. It stood on a lot that had a common corner location that was being disputed. Gloria had seen the inside of a courtroom a time or two; she was clearly what is known in litigation as a “hostile witness.” I suppose the landlord made her an offer she couldn’t refuse in order to testify on his behalf.
Gloria’s testimony is a wonderful illustration that there is a difference between “opinion” and “opinionated.” It also provides a good reason why the courts have rules of civil procedure and rules of evidence (and bailiffs in the room).
Gloria dresses in a manner that makes some wonder what her occupation must have been as a younger and considerably slimmer woman. I am happy that the attorney questioning her is satisfied when she states that her occupation is “self-employed and really none of his damned business.”
While decorum may prevent others from voicing their opinion on Gloria’s chosen profession, Gloria is not so constrained about her opinion on other professions. Surveyors are “frustrated college kids with substitute toys” and members of the bar are “pimps with suits.” This description omits many of her adjectives that go with the nouns. The adjectives would make a Marine blush.
Gloria has a remarkably selective memory. She can remember all the details surrounding the position of a corner pin that disappeared 15 years ago (said among tears and sniffles as if the departed corner monument were a deceased pet) but can not remember a single detail that occurred seven years ago when she held off a survey crew with a shotgun (denied by Gloria with a cold, spiteful stare). Even the sheriff’s report can not jog her memory about that event with the shotgun. The surveyors leave after Gloria is done with her testimony, so I can only assume she provided enough entertainment on the witness stand to compensate for the extra time they remain in the courtroom after completing their testimony.
With the brief recount I have given about Gloria, it probably would not surprise readers to learn that one witness later testifies that it was Gloria who removed the pin 15 years ago. Apparently, according to this testimony, Gloria had been thrown out of her home by one of her “15-minute boyfriends.” The pin was not solidly in the ground and provided Gloria with a ready club within reach.
Of course, this testimony was based on what this witness heard in a bar, from another person, who knew the “boyfriend.” It would be classified as hearsay in court (remote at that) and not allowed. However, I notice no one is objecting, which seems to be the case any time some titillating piece of information is offered that includes Gloria as a participant.
Before leaving this brief discussion of Gloria, I should emphatically state that Gloria did not prejudice the case by the manner of her testimony and extent of her selective memory. It is worth reflecting that more than 20 years of legal practice have taught me that sometimes the eternal fire shining as a beacon for truth and justice will be attended by one or two damn liars who feel it is necessary to put wood on an eternal flame.
Immediately after Gloria leaves the building, everyone else leaves under the pretense of a late lunch. After lunch we return to wrap up the testimony.
Aside: Hostile Attorney
All the remaining lay witnesses are nervous and demure, very typical for lay witnesses. I’ve come to appreciate the nervousness of a witness. It has been my experience that if the witness is not nervous, he or she is probably belligerent and argumentative (e.g. Gloria). Given the choice, nervous is much preferred. For the record, I am nervous for the first 10 minutes or so when I testify as an expert, so all witnesses have my sympathy.
On the topic of stress and nervousness while testifying, I’ve come to understand that nervousness is not always solely related to speaking in public within a formal setting. I remember an arbitration where the attorney for a client was obviously not familiar with hunting laws and his client’s taste for venison. It could even be possible this attorney didn’t believe his client deserved the protection afforded by the Fifth Amendment to the Constitution and his client’s right not to incriminate himself.
From what I can remember, the attorney’s client was claiming title by adverse possession and had a reasonable case based on the septic field the client placed on the neighbor’s property 22 years ago. For some reason, the client’s attorney thought it would be helpful to his client’s case to get his client to admit that he also maintained an apple pile for several years on the neighbor’s land over the location of the septic field. When questioned by his own attorney, the witness did reluctantly admit to maintaining an extensive apple pile.
Much to his client’s obvious discomfort, this client’s attorney pressed on with the questioning by eliciting more details about the apple pile. He asked his client if he could see the apple pile from his bedroom window.
His client mumbled, “Yes.”
Next, the attorney asked if the client had also installed an infrared light on the neighbor’s land that would shine on the apple pile. This question drew a copious amount of perspiration, shifting eyes, and finally a very hesitant affirmative nod of the client’s head in reply to his attorney’s question.
At this point the attorney for the other side (who was a hunter and knew that baiting deer was illegal) decided it was important to interject in the questioning to remind the witness that he was under oath and the record required the witness to clearly say “yes” or “no.”
Ignoring the pleading eyes of his client, the client’s own attorney instructed his client to answer with a “yes” or “no.”
A weak “Yes” croaked from the attorney’s client in a response to the light on the apple pile. At this point, I could only hope the attorney was trying to impress me with how courageous his client was rather than intending to provide his client with a claim against the attorney for legal malpractice.
Since the “bee hive had been kicked,” you can either run away or stay and count the bees. The client’s attorney chose the latter, so to speak, pressing on by asking his client if the infrared light was rigged to a motion sensor that not only turned on the infrared light at night but also made a beeping noise in his client’s bedroom.
At this point the witness was quivering from the stress of self incrimination by the aid of his own lawyer. In desperation, he set his pleading eyes on the attorney representing the other party. Obviously, the witness’ look of anguish was having no effect on his own attorney, so why not try the other attorney? No doubt the witness was hoping the other attorney would object, as he had so often done during previous testimony, as to the relevancy of the question.
Beginning with the apples, there had been no objections to the testimony from the other party’s attorney, and I knew that hell would freeze before any objection would come from him; his huge smile said it all.
He followed an ancient maxim of litigation: if the other side is digging a hole, don’t interrupt the digging. His huge smile was his undoing though. While the attorney for the witness was ignorant of his client’s body language, he clearly picked up on the other attorney’s body language and realized he must have made a mistake. Before his client could (or would) answer, he withdrew the question.
I cannot let this reminiscence end without mentioning the cross examination of this particular witness. The other attorney asked if the apple pile was for hunting.
“Yes,” croaked the witness.
“Was it to bait deer?” asked the attorney.
Three people out of the four in the room knew that it is illegal to bait deer and very illegal to shoot deer at night. Unfortunately for the witness, the one person in the room totally ignorant of this legality was his attorney, so he was not going to get any help from him. By now the witness knew he had to come up with his own defense to this question. He decided the oath to tell the truth didn’t apply to his personal life.
He opted to respond (after considerable shifting, blinking, sweating, and coughing) by replying, “No, you can’t bait deer and shoot them at night. The apples were for coyotes that I shoot at night.” (Baiting and shooting coyotes at night is legal.)
“Coyotes eat apples?” contemptuously queried the attorney during the cross examination.
A defiant response was, “Yes, in this county they learnt to eat apples!”
Following the Hearing
Let us return to the boundary arbitration in the courthouse, after the testimony wraps up. I meet with the attorneys to discuss what they want by way of paperwork to accompany my decision. For example, if the attorneys want to record my decision, they’ll need a notarized affidavit from me. In this case, the attorneys believe that since the case is under a stay in civil court, they would ask the judge to adopt my decision. They can record the court’s (my) decision to provide notice in the records. The arbitration agreement had provided for this option, so no party could really object.
The final part of this arbitration story is the week I take to write the decision and the reasons for my decision. (Obviously I did not find Gloria’s testimony compelling.) Sometimes the parties to arbitration agree that I don’t have to prepare findings of fact and law to accompany my decision; however, this agreement did require that I document my finding of facts and conclusions of law. I can usually prepare my decision in a couple of hours, but I like to review it over a week. It’s not unknown for my decisions to be appealed, and I don’t want the Supreme Court to find fault with the logic, law, and findings I made.
On the subject of appealing an arbitration decision, it is much more difficult to overturn an arbitration decision compared to a court’s decision. There are only three reasons sufficient to overturn an arbitrator’s decision: fraud, bias, and failure to follow the arbitration agreement. So far all my decisions have survived any appeal against them.
As a surveyor, I always try to make sure the boundaries will be marked and a plan prepared to complete the process. Therefore, I order that the prevailing party cause a surveyor to mark the boundary that I have fixed in my decision. Furthermore, I intone in my decision that the surveyor is to make a clear and permanent record of the boundary and have it recorded.
(I am aware of a court decision where the judge chose a hedgerow as the boundary rather than one of two possible boundaries determined by surveyors. Of course, one party had bulldozed the hedgerow and removed all trace of it five years previous to the decision. I believe the parties are still fighting over where the hedgerow once stood.)
At the end of this week, I send the attorneys my decision by email, which they can easily forward to their clients and the surveyors. I follow the electronic submission by mailing the attorneys a notarized decision.
Obviously, one side is disappointed, and that disappointment is usually shared by their surveyor. I often go to great lengths to make it clear in my decision that the surveyor acted in a competent and exemplary manner. The decision on the location of boundaries often hinges on a careful weighing of the evidence rather than a blunder by one of the surveyors. I don’t want the surveyor to be subject to unfair criticism resulting from the client’s disappointment.
This concludes one experience involving a boundary arbitration. The whole process was completed within a month for less than 5% of the entire legal cost that had already been incurred.
I close with a plea to the surveyors reading this article: Please encourage your clients to consider arbitration, unless they are like Gloria. A person like Gloria needs judges and bailiffs.
About the Author
Knud Hermansen, LS, PhD, PE, Esq.Knud is a professor in the surveying engineering technology program at the University of Maine. He provides consulting services in the areas of boundary retracement, boundary litigation, roads, easements, property title, land development, and alternative dispute resolution.
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