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

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



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

    • 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
    • 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
    • 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
    • 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
    • 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
    • Litigation
      Overview of Litigation Process
      Preparation of Expert Reports
      Written discovery
    • 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
    • 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.
    • 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.
    • 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.
    • 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
    • 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
    • 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.
    • 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
    • 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
    • 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.
    • Questions?