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9/8 THUR 16:00 | Practical Tips for Effective Expert Planning Testimony
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9/8 THUR 16:00 | Practical Tips for Effective Expert Planning Testimony


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Christopher Benvenuto …

Christopher Benvenuto
Collene Walter

What can you expect when you are called upon to act as an expert witness in a matter? This session will help planners prepare for testifying as an expert at depositions, in court, and at quasijudicial
hearings. Common strategies for effective testimony on direct and cross examination, and ways to avoid potential pitfalls will be discussed among other important practical considerations
when testifying as an expert.

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  • 1. Practical Tips for Effective Expert Planner Testimony
    Presented by:
    Christopher P. Benvenuto, Esq.
    Collene W. Walter, ASLA, AICP, LEED AP
    APA Florida Conference
    The Breakers, Palm Beach
    September 8, 2011
  • 2. Introduction/Background of Presenters
    Christopher P. Benvenuto, Gunster (WPB)
    Land Use Litigation, Property Rights Litigation, and Commercial Litigation
    J.D., M.S. in Real Estate, B.S.B.A, University of Florida
    Collene W. Walter, Urban Design Kilday Studios (WPB)
    Principal Planner
    B.A. in Landscape Architecture, Cornell University; M.A. in Urban and Regional Planning, Florida Atlantic University
  • 3. Quasi Legislative vs. Quasi Judicial
    Application of Policy
    “Strict Scrutiny” Standard of Review
    Burden of Proof on Applicant
    Competent Substantial Evidence
    Rezonings, Conditional Uses
    Formulation of Policy
    “Fairly Debatable” Standard of Review
    Opinions Count, not just Facts
    Comprehensive Plan Amendments
  • 4. Quasi-Judicial Hearings
    Distinction between Planner as Agent of Applicant, and Planner as Expert Witness
    Preparation is Key to a Successful Presentation
    Presenting Competent Substantial Evidence to support Request
    Importance of Creating a Record to Setup Appeal
    Cross Examination – Rare, but be Prepared
    Practical Tips for Helpful Preparation
  • 5. Overview of the Land Development Process from Application to Litigation
    Review by administrative staff
    Public quasi-judicial hearing before local commission/board
    Appeals - administrative/circuit court challenges
    Litigation – filing of petition/complaint
    Written discovery and document requests
  • 6. Litigation
    Overview of Litigation Process
    Preparation of Expert Reports
    Written discovery
  • 7. Litigation: Preparing Expert Reports
    Practical Considerations when Preparing Expert Reports
    Be careful what you write: Your words may come back later to haunt you!
    Data and Assumptions
    Faulty assumptions in a report will likely be exposed in deposition and undermine your credibility at trial
    Be careful of not only what you relied upon, but what you may have failed to consider
    Quality Control and Proofreading
    Report should be clear and understandable to the reader – not just you
  • 8. Litigation: Discovery and Depositions
    Overview of Discovery Process
    Written Discovery/Subpoena Duces Tecum – sample request:
    “All documents (including drafts), including but not limited to computer files which have not been printed and put in your files, in your possession or control relating to the above captioned lawsuit, prepared and/or reviewed by you, including legal instructions, memoranda, ledgers, surveys, manuals, laws, ordinances, regulations, plans, reports, studies, sketches, renderings, site plans, photographs, videos, appraisals, data book(s), comparable sales data, costs estimates, documentation relating to proposed and potential cures, reports of other individuals and experts and all other documents and tangible items that you have considered or relied upon in this case.”
    What you reviewed or did not review is relevant.
  • 9. Preparing for Depositions
    Differing approaches between “fact witness” depositions and “expert witness” depositions
    What to Expect at a deposition
    What you can and can’t rely upon
    Thoroughly review any expert reports you drafted and be prepared to defend your assumptions and conclusions
    This includes what you considered, what you didn’t consider, and why you didn’t consider it
    Attorney’s Goal in Deposition: Paint you in a corner, and lock in your testimony for trial.
  • 10. Practical Tips in Preparing for Your Deposition
    Always tell the truth!
    Act like the Professional that you are
    Relax and take your time
    Remember your testimony will be transcribed – you are creating a record
    Sarcastic responses and jokes do not translate well on paper
    Don’t answer a question you don’t understand. Ask to rephrase.
    Don’t speculate. If you don’t remember, you don’t remember.
    Do not volunteer information. Make the attorney draw it out of you. If he or she doesn’t, that’s their problem.
  • 11. Preparing to Testify in Court
    Overview of examination process at trial (direct, cross, re-direct)
    Different approaches for Direct and Cross Exam
    Know your audience (Judge or Jury)
    Your role is to provide specialized expertise and educate the judge or jury
  • 12. Strategies for Effective Testimony on Direct Exam
    Preparation with attorneys
    Direct testimony should play like an informative conversation, not like a script
    Do NOT just memorize questions and answers
    It’s ok to rehearse general topics and anticipated responses ahead of time
    Remember, the goal is not just to answer the attorney’s question, but to educate the judge or jury. Make sure the lay person can understand the issue and your answer.
    Perspectives from an expert witness testifying on direct
    Perspectives from an attorney examining a witness on direct
  • 13. Strategies for Effective Testimony on Cross Exam
    Review your deposition testimony ahead of trial and know what you previously testified to.
    If you try coming up with a different answer that contradicts prior testimony, you will likely be impeached and lose credibility with a judge or jury.
    Answer only what is asked of you. If you need to supplement or further explain your answer, consider whether to do so on cross or re-direct.
    Don’t be afraid to ask opposing counsel to re-phrase a question or clarify a question if it is ambiguous, overly presumptuous, or mischaracterizes facts or your prior testimony.
    There will be an opportunity for opposing counsel to object to improperly phrased questions.
    Consider having someone do a mock cross exam of you in advance.
    Think of toughest questions possible and how you would answer and explain them.
  • 14. Strategies for Effective Testimony on Cross Exam (cont.)
    Dealing with questions where the answer may be harmful to your case
    Don’t shy away from admitting to harmful information – if opposing counsel has to slowly drag it out of you, it may look worse than if you confronted it head on (“softening the blow”)
    Can the answer be explained away?
    If so, you may wish to provide an explanation on cross, or just save for re-direct. (usually, the attorney will decide in advance)
    It’s not the end of the world to concede a point.
    If you take an irrational position just to avoid conceding a point, you will lose credibility with the judge or jury.
    Perspectives from an expert witness being cross-examined
    Perspectives from a cross-examining attorney
  • 15. Communicating with Clients and Attorneys
    What is privileged and what is not?
    Different types of communications – face to face meetings, phone calls, faxes, letters, e-mail
    BE CAREFUL of casual conversational use of e-mails. They are traditionally, the most damning form of evidence.
    Communications during the application process may later be discoverable if the matter goes to litigation, so be careful with casual writings.
    Example: Contractual provision providing right to cancel an agreement if permits are not likely to be obtained by a certain date.
    Recommended best practices
  • 16. Communicating with Government Agencies
    Public Records and Applications
    What you send to local governments is all public record
    Public record requests (typically in litigation context)
    Be careful with e-mail “conversations” with municipalities and government agencies.
  • 17. Questions?