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September 03, 2014 Article

Learning to “Speak” Real Estate in Depositions or at Trial

Vague descriptions can render testimony less effective for preserving the record

by Susan Nettles Han and Ginny Willcox

Attorney: Mr. Smith, did you see any paint on trees marking the lines?

Mr. Smith: Oh, yes.                                                                  

Attorney: Where did you see the paint?

Mr. Smith: Well, we walked from here to here and saw paint over here.

Attorney: Did you see any other markings?

Mr. Smith: Yes. We walked over here and saw a fence that ran in that direction and was about yay high.

When a witness testifies in deposition or at trial, vague or imprecise descriptions can render the testimony less effective or useless for impeachment purposes or for preserving the record. This can be particularly true when the testimony is related to a real estate litigation issue. This article explores the ways a real estate litigator can either prompt the witness to speak real estate or just take on the role of speaking real estate for that witness as a sort of translator, and the potential ramifications when the real estate litigator does not.

Speaking Real Estate During Depositions

We hold depositions in advance of trial to learn what a witness will testify about at trial and so that we can hold the witness to that testimony at trial. If a witness changes his or her testimony at trial, we whip out the deposition transcript, remind the witness that he or she testified under oath at the deposition, and quote the impeaching testimony from the deposition. However, impeaching the witness at trial can be a challenge if the deposition transcript does not reflect what the witness was showing you during his or her testimony. For example, if the witness, Mr. Smith, while testifying during his deposition, pointed to the northern boundary line of his property on a plat and told you he had only ever walked that line, but there is nothing on the record to indicate what, in fact, he was pointing to while he talked, you will not be able to impeach him when he later testifies at trial that he only ever walked the southern boundary line.

Real estate litigation attorneys can avoid this problem by (1) prompting the witness to speak more specifically or (2) clarifying what the witness is talking about with follow-up questions or statements. An easy way to do this is as follows: After Mr. Smith states, “I only ever walked that line,” you clarify, “Mr. Smith, you are pointing to the northern line, correct?” Or you ask, “So you are saying you only ever walked the northern boundary line of your property?” For an adverse witness or a witness who has trouble articulating what he or she is demonstrating, a simple, detailed follow-up statement can provide the necessary clarification: “For the record, Mr. Smith is pointing to the northern boundary line of the Southeast Quarter of Section 5, Township 2 South, Range 3 West, Jefferson County, Alabama.”

In addition, having a witness mark demonstratives, such as maps or plats, during testimony helps clarify the record: “Mr. Smith, will you please highlight in orange on this plat, Defendant’s Exhibit 1, where you walked the boundary lines?” It is helpful to bring markers in several different colors for the witness to mark the demonstratives. When having a witness mark a demonstrative, always state what color he or she is using and how he or she is marking something on the demonstrative: “Mr. Jones, please mark with a red X where you saw the buggy axle that you believe marked the southeast corner of Section 45.”

Another key reason to clarify on the record what a witness is showing you during the deposition is the possibility that the witness later may be unavailable to testify at trial and then you will only have deposition testimony as evidentiary support at trial.

Speaking Real Estate at Trial

It is equally important to prompt the witness to speak more specifically or clarify what he or she says while testifying at trial to preserve the testimony in the record for later review by the trial court or an appellate court.

In some states, the ore tenus rule—a presumption that the judge is in the best position to evaluate the credibility and demeanor of a witness—holds particular weight in real estate matters such as boundary line disputes because of the difficulty in preserving testimony on the record:

Transcripts of the evidence concerning boundary line disputes are, as a rule, the most confusing and difficult to follow, comprehend, and understand of all customary and ordinary trials because of the common tendency of some attorneys, surveyors, parties and other witnesses to fail to clarify with particularity their questions and/or answers when discussing maps, plats, roads, courses, distances and reference points. In such cases the wisdom of, and the need for, the ore tenus rule are evident.

Wallace v. Putman, 495 So. 2d 1072, 1075–76 (Ala. 1986).

These states adopt a “clearly erroneous” standard of review for such disputes, which is a common standard of review for questions of fact in boundary line, easement, adverse possession, quiet title, and other property disputes. In the states that have adopted this standard, including Alabama, Arkansas, Connecticut, Vermont, and Wyoming, the trial court’s conclusions will not be disturbed on appeal unless plainly erroneous or manifestly unjust.

Other jurisdictions, including Idaho, Kansas, Mississippi, and Washington, have adopted a “substantial evidence” standard, wherein an appellate court may affirm the trial court’s order if it is supported by substantial evidence in the record.

Regardless of the standard of review, and despite the deference given to the trial courts in these disputes, trial court decisions in these cases are sometimes overturned based on the strength—or weakness—of the record on appeal. Thus, it is incredibly important to clarify what is being shown and stated by a witness as much as possible to preserve the record for appeal.

Another factor to consider is that after bench trials (which are common in real estate matters), judges with heavy dockets do not always make an immediate ruling. Sometimes four or five months may pass before the judge rules on the matter, and by this point, the judge’s memory may be quite foggy as to what the witnesses have stated and shown. The clearer the testimony is in the recorded transcript, the easier it will be for the judge to evaluate the evidence and reference what evidence was presented in his or her final opinion.

Preparing Your Witness to Speak Real Estate

When preparing your witness to testify at a deposition or at trial about a real estate issue, remind the witness that is helpful for him or her to speak as descriptively as possible in testifying about what he or she has seen. This is particularly important when the witness is being cross-examined by other attorneys and you cannot immediately clarify the witness’s statements on the record.

Not long before the deposition or the trial, consider having your witness visit the property to help refresh his or her memory and to help facilitate detailed descriptions. At the very least, have the witness review photographs and plats of the disputed property.

Finally, have your witness practice explaining what he or she has observed, with the aid of a survey or a map:

Attorney: Mr. Smith, did you see any paint on trees marking the boundary lines in Section 10?

Mr. Smith: Oh, yes.                                                                  

Attorney: Will you please describe for me, in detail, the color of the paint markings and where you located the paint markings in Section 10? You can use this map to facilitate your description.

Mr. Smith: Well, we walked in Section 10 from the southeast corner of the Northeast Quarter to the southwest corner of the Northeast Quarter and saw faded red paint on the trees all along that line.

Attorney: With this orange highlighter, will you please mark on this map where you saw the red paint on the trees? Thank you. Did you locate any other boundary line markings in Section 10?

Mr. Smith: Yes. We walked north to the northwest corner of the Northeast Quarter and saw a three-foot-high fence marking the boundary line that ran all the way from the southwest corner to the northwest corner.

Attorney: Using this blue highlighter, will you please mark on the map where you located this three-foot-high boundary line fence?

Descriptive testimony like the above testimony will help preserve the record for the trial court or appellate court. With some practice, you may just teach your witness to speak real estate.

Keywords: real estate litigation, witness, testimony, deposition, trial, standard of review, ore tenus rule

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