litigating a boundary dispute

LITIGATINGA

BOUNDARY DISPUTE

Litigating a boundary dispute

YOUR TRIP INTO THE CRAZY

UNPREDICTABLEWORLD OF LITIGATION

A PRESENTATIONTO

Taps

PRESENTED BY

WALT ROBILLARD, ESQ., RLS, FORENSIC SURVEYORATTORNEY AT LAW

NOW YESTERDAY

WhyDo

PeopleLitigate?

Some of the reasons

1. TO SOLVE ACTUAL OR PERCEIVED PROBLEMS.2. TO RIGHT A WRONG.3. TO GET EVEN.4. TO BRING AN ENEMY TO HIS/HER KNEES.5. TO GET MONEY.6. TO SOLVE A PROBLEM THRU LITIGATION.7. TO GET A FINAL “LEGAL” ANSWER.8. JUST TO BE AN OLD “S-O-B.”9. NONE OF THE ABOVE.

THE SYSTEM

Three REQUIREMENTS: (AT LEAST)

1. MUST HAVE A JUSTICIABLE ISSUE.2. COURT MUST HAVE JURISDICTION.3. MUST BE THE PROPER VENUE.4. Should have the money

FIRST MUST DETERMINE WHAT LAW IS

WHO SAID?LAW IS A PREDICTIONOF WHAT THE COURTS

WILL DO ?

OLIVER WENDELL HOLMES

WHO SAIDLAW IS A RULE OF REASON; PROMULGATED BY AUTHORITY AND SUPPORTED BY SANCTIONS?

SAINT THOMAS AQUINAS

A TRIAL IS A PROCEDURE CONDUCTED BY ESTABLISHED RULES TO DETERMINE THEFINALIZATION OF A LEGAL OR EQUITABLE PROBLEM.THE FIRST PROBLEM ONE MUST DETERMINE IS, IS IT IN LAWIN EQUITYCRIMINAL

2ND

The “TEAM” THEN MUST DETERMINE WHAT THE TOTALITY OF THE EVIDENCE WILL PROVE.

Evidence IS NOT proof. The amount of evidence recovered and then interpreted leads to the proof.

A.C. MULFORD SAID

BEFORE LEAVING THIS GENERAL SUBJECT IT WOULD PERHAPS BE WELL TO CONSIDER FOR A FEW MOMENTS THAT RELATIONSHIP BETWEEN THE SURVEYOR AND THE ONE WHO MAY PERHAPS BE

CALLED HIS CO-WORKER- THE LAWYER.

The legal system is based on the introduction of evidence by two types of witnesses.I. EXPERTII. LAYWHAT DID THE WITNESSESDOSEEHEARSMELLTASTETOUCH

FUNCTION OF THE SYSTEM

ITHE FUNCTION OF THE ADVERSARY SYSTEM

IS TO RENDER A FAIR CONCLUSIONOF DISPUTES, BY THE APPLICATION OF

EXISTING LAW TO THE FACTSESTABLISHED BY THE

EVIDENCE

THE PARTIES

The system has to have several individuals.I. Two or more parties.II. Attorneys 0-1-2-3 or more.III. The jury (maybe)IV. The judge.

The parties

An attorney is not need to sue in any court.A party may engage attorneys. or A person may represent him/her self (pro se.)

Or Attorneys may be engaged by one or all parties.

Pro se

As the American Bar Association stated:At the same time, courts almost as a

rule. Openly display a bitter and venomous hatred of pro se .. Litigants. So don’t expect courts to just roll over & give you what you demand without a battle. It doesn’t matter that you are right, it only matters that you are pro se; an inferior low life being… .

IITHE FUNCTION OF AN ATTORNEY IS TO PRESENT ANY EVIDENCE AND LAW FAVORING THE PARTY FOR WHICH HE IS THE ADVOCATE IN THE LITIGATION.IT IS THIS REPRESENTATIVE FUNCTION THAT IS SUPPOSED TO EQUALIZE THE ABILITIES OF ALL THE PARTIES.

The “Road map” of a trialAll (or most) trials are conducted in accordance with rules that are identified for the “public.”These rules may be “bent” by the courts as desired, but usually they usually remain as required by the parties, to be followed.

DETERMINE: WHERE DO I WANT TO GO?

FIRST: WHO WILL BE THE PARTIES?SECOND: THE PARTIES THRU THEIR ATTORNEYS & WITNESSES DETERMINE WHAT THEY CAN PROVE BY THE EVIDENCE.THIRD: HAVE TO DETERMINE WHO THE PARTIES ARE.FORTH: HOW EXPENSIVE IT WILL BE.

DETERMINE “HOW TO GET THERE” FROM HERE

THE TEAM PLOTS THE ROUTE THEY WANT TO GO.IS IT TROUGH “UNCHARTED” LEGAL WILDERNESS.

THEN

WHAT KIND OF ACTION ?

IN REM: Against the thing (land.)

In persona: against the person(s).

THE 3 BASIC STEPS

i. pre- trialii. Trialiii. Post trialThe surveyor should (or could) be consulted in these phases.

The Surveyor’s Involvement

i. As a party

ii. As a witness

iii. As a “amicus curiae”

Two basic questions

I. What do the facts prove?II. Am I able to finance to the final solution?III. How knowledgeable is my attorney?IV. How convincing are my witnesses?

Then

The attorney has to find and engage, eitherLay witnesses or an

Expert witness.

Each serves a specific purpose.

The witnessesThe system provides for two types of witnesses, whose function is to testify truthfully as to recalled memories of preceptions or opinions.Lay witnesses testify as to facts.Expert witnesses as to opinions. (hopefully)

YouThe surveyor can be involved

in litigation in several capacities:

i. As a partya. Plaintiff b. Defendant

ii. As a witness

BUT

As A. C. Mulford wrote in 1912:

Before leaving this general subject it would perhaps be well to consider for a few moments

Let’s Assumeyou are not a party

As a witness you should have some idea of what the system is and the “road map” of how we get from the initial complaint to the decision.

The following is a generic road map of a normal trial.

The system

I. What direction to take?1. Question of title?

2. Boundary issue? 3. Road map of the trial. 4. Should use imagination. 5. Tell a story.

PRE-TRIALVery first question of your client

How much justice can you afford?

The complaint

I. Who are the parties?II. What is the problem?III. What are the solutions?IV. What is the proper form of action? contract tort otherV. Should an expert be retained?

The Answer

I. How much should be revealed about your case?

II. Is a counter claim necessary? III. Is a cross-claim necessary?IV. Should the expert be involved?

Pre-trial matters

I. Can it be used in place of discovery?II. Should the attorney consider a Summary

judgment?III. Is a motion to dismiss in order?IV. Has there been a pre-trial order?

the trial

i. Opening statement.ii. What direction?iii. Avoid common errors.iv. Direct examination.v. Cross examination.vi. Closing arguements.

discovery

Discovery can commence at any point.Most widely used is depositions.Interrogatories Requests for admissionRequests to inspect propertyExpert witness requests