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.

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 1

2. Introduction/Background of Presenters Christopher P. Benvenuto, Gunster (WPB) Shareholder/Attorney 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 ASLA, AICP, LEED AP B.A. in Landscape Architecture, Cornell University; M.A. in Urban and Regional Planning, Florida Atlantic University 2

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 3

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 4

5. Overview of the Land Development Process from Application to Litigation Application 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 Depositions Trial 5

6. Litigation Overview of Litigation Process Preparation of Expert Reports Written discovery Depositions Trial 6

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 7

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. 8

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. 9

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. 10

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 11

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 12

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. 13

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 14

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 15

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. 16

17. Questions? 17