I first wrote a similar article a few years ago but the link to the article was lost during website changes. In this blog, I wanted to revisit and update the topic of expert witness impartiality and measures I take to ensure I end up working for the right client!
When I began offering certified arborist, landscape, horticulture, and site development expert witness consulting services in San Diego, California, a business associate asked which “side” I worked for, the defendant or plaintiff. He did not want to refer the incorrect potential client to me. I was taken aback, my lack of experience had not prepared me for this question. How could an expert work for only one side or the other without appearing as an advocate? My answer to him was simple, I use the case facts and evidence to determine the standard of care issue in deciding to work for either a defendant or plaintiff attorney.
Of course, impartial cuts both ways, and if discovery information leads me to an impartial opinion not in the best interest of the client, professional integrity requires I inform the client why my opinion does NOT support their position. When this occurs (and fortunately very infrequently), you can still benefit the client by instructing council on why their case is not supported by the scientific, technical or forensic evidence. This information may assist council in deciding to not pursue a case, or pursue settlement discussions. I minimize this situation through careful and extensive telephone screening of incoming requests.
It is challenging to maintain a neutral position during a telephone discussion with a potential client. Naturally, we all want to build our practice, so when a potential business contact occurs over the phone, careful listening, screening and asking pertinent questions is extremely important to ascertain whether the information provided by the potential client is a position I will arrive at independently on an impartial basis. Regardless of the information and position propounded by the attorney, maintaining neutrality during a telephone conversation is essential to protect my integrity as an impartial expert who arrives at his opinion based on fact and discovery, not being bought or convinced by a client’s presentation.
Whether a defendant or plaintiff client, the common thread is determining satisfaction or failure to meet industry or professional standard of care. Ascertaining this information during initial discussions is an essential tool I use in screening potential clients. If a defendant call, the information provided during questioning should establish a reasonable degree of certainty the client satisfied the professional or industry standard of care, conversely a plaintiff contact should provide convincing and truthful information detailing why the defendant failed to satisfy the standard of care.
For this reason, I provide expert witness services for both defendant and plaintiff cases because determining the standard of care from a technical perspective should be an objective, impartial process. Through the telephone screening process, I am able to ascertain whether an attorney is knowledgeable about the technical aspects of the case or if they might be creating their own theories. Fortunately, most of the attorney’s I have worked with had a thorough, detailed understanding of their client’s position that simplified the screening process. They provided sufficient information and facts that instilled confidence I would be able to reach an impartial expert opinion in their favor if discovery supported their information, which has consistently turned out to be case.
I provide plaintiff and defendant clients with expert opinions in the field of landscape, arboriculture, horticulture and land development. My opinions are qualified and supported by decades experience as a land development professional, certified arborist, certified tree risk assessor, professional horticulturist and licensed C-27 California landscape contractor. Cases involve a variety of tree, plant, landscape and development issues. Most common are trip and fall cases caused by incorrect sprinkler type or other landscape and irrigation appurtenances. Numerous tree cases involving tree limbs encroaching property lines, potentially unsafe trees and tree risk assessment. Improperly selected or poorly maintained plant material has resulted vehicular accidents and fatalities. A fraudulent final map and land sale resulted in a plaintiff lawsuit when they were unable to develop the parcel in a timely manner.
The common thread is determining the industry or professional standard of care. Decades of experience and education taught me the skills to efficiently distill facts and evidence from story and fiction. When due diligence is complete and my opinion formed, it is very important to communicate the technical reasons that support my opinion in simple to understand yet convincing narrative to the client.
Arborist, landscape, tree and plant, horticulture, and land development issues comprise a relatively small niche in the legal industry. However, trees, plants, landscape and irrigation systems are a part of the urban environment. As construction and development activities increase, accidents resulting in personal injury and property damage occur. Landscape construction defects may go undetected for years before manifesting into a serious situation. Tree limbs and roots grow over property lines, damaging property and causing serious injury. Unlicensed or unknowledgeable contractors abound, many using illegal, outdated contracts, or worse, no written contract, inexperienced or overly aggressive general contractors and subcontractors create project conflicts through unknowledgeable supervision, missing written change orders and documentation.
Forensic determination of the cause of an accident due to landscape or trees is a regular part of my consulting practice. In landscape construction, forensic analysis is extremely challenging due to the living and changing nature of the plant material, soils, segregating and determining design flaws versus construction contracting or maintenance practices, all are intertwined into a potentially difficult knot to unravel. You have to have the knowledge and experience to know how and where to drill down and find the facts, evidence and documentation needed to support an expert opinion.
Landscape, arboriculture and horticulture are actually separate fields of study leading to different careers. Ornamental horticulture focuses on trees and plants used for non-food crop, such as landscape, nursery and floriculture. Arborists have in depth knowledge of tree while landscape contractors install and maintain landscape. Tree, plant and landscape cases often overlap, when that occurs, having a knowledgeable landscape expert versed in all related fields can make all the difference, regardless if a defendant or plaintiff case.
Rappoport Development Consulting Services LLC is an independent certified arborist, certified tree risk assessor, landscape, horticulture, land development consulting firm. The company offers landscape expert witness services, for attorneys and insurers and professional consulting services for certified arborist, tree risk assessment, landscape and horticulture and land development.
Why use just an arborist or a landscape contractor when you can have a professional consultant experienced in landscape , arboriculture, horticulture and land development!