Expert Witnesses, Are You Prepared for When an Attorney Calls?

Posted on March 26, 2013 by landscapeexpert

When first opened, I had envisioned Rappoport Development Consulting Services LLC providing commercial consulting services to the home building industry. For decades, I worked for private and public homebuilders and master community developers as a land development specialist. I opened RDCS LLC when the recession closed down the homebuilding industry in 2008. At that time, the marketing plan was to attract developer and homebuilder clientele, assuming they had fired most of their employees.

That strategy proved ineffective as the recession was far more severe than anticipated. When an attorney from a previous employer suggested my experience and education qualified me as an expert witness, I considered adding litigation support and expert witness consulting services within my areas of expertise. I spent a great deal of time learning about what qualifies one to become an expert witness, joined FEWA (Forensic Expert Witness Association), attended workshops, spoke with several attorneys about my fields of expertise and expended thousands of dollars retooling the company website to display litigation support and expert witness consulting services along with commercial consulting services.

I was somewhat taken aback when the first attorney called! With all the time I spent analyzing, marketing and preparing myself to provide expert services, I had failed to consider a process for screening potential attorney clients when they called to discuss their case on the telephone. As I listened to the attorney’s theory about how the accident occurred, I needed a format to sift out the facts from the opinions espoused by the attorney. I was uncertain if the attorney was telling me factual information or his version of the facts.

We all know the importance of making a good first impression, especially with an attorney who is listening to every nuance and bit of information you mention over the telephone. Not wanting to loose a potential client due to lack of preparedness, I developed a verbal interview script employed during the initial conversation with an attorney. The purpose of the script is to organize my thought process, conduct a thorough interview and uncover enough relevant facts to form a preliminary expert opinion and whether that opinion will assist the attorney.

I find it necessary to form an expert opinion during the very first conversation. The opinion formed may or may not support the position of the attorney. We strive to avoid accepting a case that discovery later uncovers facts that do not support the attorney you work for, that is why the initial attorney conversation must be in depth, comprehensive and factual. Attorney opinions are not facts for an expert to base their impartial opinion on.

Like many FEWA members, I have found the monthly dinners, guest speakers, and workshops very relevant and highly educational. Networking with other members provided helpful information that answered many questions on how to provide professional expert services. By incorporating member suggestions combined with the specific and technical aspects of my area of expertise, I developed a verbal script to use during initial attorney contact.

Early on, I learned the importance of active listening and allowing the attorney to fully describe the case and history without interruption. Questions developed while the attorney spoke were written down and returned to after the attorney was finished speaking. I discovered allowing the attorney to speak uninterrupted sometimes provided insight to the strength of the case and the attorney’s belief or understanding of the facts.

Once the attorney completes their presentation, I begin my questioning, establishing the basic facts and time frame of the accident and case. Many of my cases involve trip and fall accidents due to landscape, tree, plant, line of sight, irrigation or construction hazards. Therefore, gaining factual information about the accident during the telephone discussion is essential to form an opinion.

Basic questions include the date of the accident, time of day, weather and climatic conditions, site conditions, visibility and obstructions. What was the condition of the site, the paved surfaces, was the irrigation operating, was there standing water? Similarly, every expert witness in their field of expertise will have their own industry related questions to seek out answers to form an opinion.

The telephone conversation should clarify fact from opinion. When the facts are not always clear, attorneys may form their own hypothesis or opinion on how an accident happened. I accepted a case because the defendant attorney sold me on his theory about why a plaintiff tripped over a steel tree grate located in a busy pedestrian sidewalk. The tree had been removed, the hole filled in with dirt, the tree grate placed over the dirt. Three weeks later, a pedestrian caught their foot inside of circular opening in the grate where a tree should have been. The plaintiff went flying, landed and suffered severe injuries, resulting in a lawsuit against the tree company that removed the tree and the management company that hired the contractor and directed the work.

During our initial telephone conversation, the defendant attorney (my future client) told me when the tree was removed it was not replaced, instead the hole was filled in, the dirt was compacted up to the grade of the grate, but over time the grade somehow settled resulting in a gap that caused the accident. His theory was winter rains had caused the soil to erode away, resulting in the uneven grade, therefore his clients were not responsible and it was an act of God. He claimed to have NOAA (National Oceanographic and Atmospheric Administration) data supporting his theory of heavy rains. At the time, it sounded like a reasonable theory, rather than ask for pictures of the site, I allowed myself to agree with his theory and accepted the case.

Photographs later depicted moist soil with numerous footprints through the hole in the grate. It was obvious pedestrian foot traffic compacted the soil, not winter storms. I had to advise the attorney his theory was incorrect and he should seek a settlement, as my expert opinion would not support his theory, but rather negligence on the part of one or both of his clients. Fortunately, the case was settled without further incident.

That experience taught me the importance to separate fact from opinion or theory. I learned to question attorneys during telephone calls and play the role of devils advocate. They usually appreciate hearing technical information that might impact their case, whether positive or not. In certain instances, you might be doing the attorney a favor by warning them off of a case.

If I’m still uncertain about the facts of a case, I’ll ask for pictures or important documents be emailed to review in order to form an opinion before accepting a case. I found this very helpful and it has made an enormous difference in understanding the dynamics of a case and developing an impartial opinion. You might also find an attorney will pay you as a consultant to review the information prior to determining your opinion. I had an attorney call; he wanted to know whether a tree branch could droop down during a rainstorm. His client encountered a tree limb blocking an exterior stairway, while trying to avoid the branch, the person fell down the stairs. He wanted to send me pictures and pay my time to review and offer an opinion because he was unsure about the validity of the case and whether his client claims made sense. We did just that, I charged him for an hour or two of consulting time and was able to render an opinion that turned into a case that eventually settled in mediation.

Landscape, arboriculture, horticulture and land development are fields many attorneys are unfamiliar with. During our initial conversation, their lack of technical knowledge becomes evident. It is incumbent for me to provide the technical context to enable them to understand the facts, yet at the same time, not expose to much information to an attorney who is simply on a “fishing expedition”. This is a great opportunity for an expert to highlight their technical proficiency and showcase how their abilities may benefit the attorney. Provide enough information to impress, not too much where you give away your services for free.

In conclusion, preparation is paramount to success. You only have one first time opportunity to impress a potential client with your knowledge and professionalism. Make the most of it, be prepared!

Tree Risk and Premise Liability: Property Owners Beware!

Posted on March 2, 2013 by landscapeexpert

Trees, Premise Liability and Risk Management

My appreciation for trees dates well back to my childhood days spent at summer camp and camping trips with my family. I still remember the distinct fragrance of the California Sycamore trees that provided shade during the summer camp months and wonderful Coast Live Oak trees encountered throughout California hillsides and campgrounds.

As a certified arborist, professional horticulturist, licensed landscape contractor and land development professional, my perspective on tree aesthetics and utility is now tempered by the business reality of liability and the risk trees create. An old specimen tree viewed from a liability perspective is a completely different experience than enjoying the historical or horticultural wonders the tree may present. In fact, when viewed from a risk management perspective, the same wonderful historical or landmark tree could pose a potentially serious safety threat or legal liability. Imagine the beautiful Coast Live Oak above in an urban setting with some of those branches hanging over a vehicle!

Premise Liability and the Property Owner

It is a property owner’s legal duty to maintain their premise in a safe, hazard free condition and that responsibility also applies to the trees on their property. Whether a homeowner, business, or homeowner association, an integrated inspection and maintenance program can reduce an owner’s exposure to expensive negligence lawsuits while improving the aesthetics and health of the overall landscape. Minimizing the potential harm or loss from a tree related accident is a proactive form of tree risk management.

There are two principle forms of risk associated with trees. Whether the tree is located in a public or private setting, there is potential risk for the tree to cause physical harm or property damage. Typically, it is the public at greatest risk for experiencing harm caused by a tree failure. There is also the financial risk borne by the Owner caused by the potential failure of the tree or tree part.

While many municipalities focus on the financial risk associated with tree failure, owners should focus on the risk of physical harm as the reason and foundation for developing an effective risk management program. Unfortunately, there are no existing inspection standards for tree hazard or risk management in the United States. Jurisdictions implement their own standards, trade associations such as the International Society of Arboriculture (ISA) and American Society of Consulting Arborists (ASCA) are working toward standardization of specifications, techniques, and risk evaluation, but it is still a matter for each property owner to monitor and care for their trees, preferably before they become a legal liability.

Tree Protection Plans During Construction and Development

In San Diego County there is a community that was developed in an existing and enhanced Eucalyptus tree forest. What appeared a great idea 30 or 40 years ago to create an urban Eucalytus forest surrounding a residential suburban community now appears to be a risk management nightmare as 100’ plus tall, 24”-36” diameter Eucalyptus trees drop limbs or suffer complete structural failure falling onto adjacent homes and unfortunately, killing and injuring the public.
In the past, when land was under mass development, existing trees were paid little attention other than objects to be removed during grading. In some instances, specimen trees may have been transplanted and relocated, trees retained in the landscape were usually neglected or had minimal devices installed to protect the tree during development. When a property is under development, the focus is on grading and infrastructure, utilities and street improvements, protecting existing trees is usually overlooked or a very low priority.

With time and recognition of the value and aesthetics trees create, development and politics have combined to create new incentives to preserves trees. The public clamors for “green” improvements in sustainability and now demands trees be retained and preserved. Unfortunately, in some cases the pendulum has now swung to the opposite extreme, whereby the public or property owner is insisting on preserving a potentially risky tree without realizing the potential consequences.

That is why it is imperative to protect and preserve existing trees in a construction zone to ensure their overall health and vigor during and after the construction process and to prevent the tree from becoming a future liability due to damage caused during construction. Most people might not notice symptoms of tree decline caused by construction activities. Without proper protection, tree roots may be damaged by soil compaction or grade change. Trees are often damaged by construction equipment striking limbs or scraping the trunk. Utility trenches cutting across or through root tree root systems seriously undermine the mechanical stability of the tree while compromising the trees ability to absorb water and minerals from the soil.

In instances where historic or specimen trees were retained in and around development, those trees eventually had to be removed due to declining health conditions and the increased risk these trees possessed. Had they been better protected during the development process, there would have been increased likelihood of successful retention of these valuable assets.

Managing Tree Risk Through Policy and Action

Let’s define a policy as a line of argument used to rationalize a given course of action. From an ownership standpoint, having a documented tree risk policy is extremely important. The policy provides a clearly defined direction and course of action for managing the risks associated with tree resources or assets. If a tree failure results in a legal action, having a documented policy is the basis for a legal defense. By having a tree risk management policy, Ownership demonstrates their legal duty to maintain their trees to protect the public and the actions they took to address the risk. Obviously, having a tree risk management policy is better than having no policy at all.

While a policy and procedures are best management practices for larger businesses and homeowner associations, an individual property or homeowner can benefit from a simplified annual inspection and maintenance program without having to have a written tree risk management program. By having a certified arborist inspect the trees annually and implementing the recommendations made in the inspection report, a property owner is demonstrating their duty to protect the public and reduce the risk associated with trees on their property. In so doing, the owner is building a basis for a legal defense in the event of tree related litigation.

Whose Duty is it Anyway?

Owners who think a tree failure is considered an Act of God as a defense will find this to be untrue. Courts across the country have found property owners have the duty to inspect, maintain and correct hazardous tree conditions that inhibit line-of-sight. There has been a natural progression toward statutes that deal with premise liability and the duties owed to guests and the public regarding “foreseeable” problems from trees.

Over time, the legal industry has worked to extend this duty or responsibility to developers, builders, property managers and other property professionals, including those who act in a property owner’s stead. If you work as an agent for an owner, you could find yourself having inadvertently taken on the “duty to inspect” and increased your exposure to a liability lawsuit.

The legal duty for property owners or those acting in their stead to protect visitors, workers, guests, pedestrians or vehicles from hazardous conditions exists in many states. Acknowledgement of this duty is witnessed in the daily maintenance activities and repairs made to fences, sidewalks, walls, gates, building edifices and more. Obstructions are cleared in sight line corridors to insure traffic flow and safety. In many states, the same duty to protect the public has been extended to trees and their appropriate maintenance requirements.

A routine annual tree inspection can in theory, be performed by anyone. However, many tree problems are difficult to detect and require a trained professional to identify hidden deficiencies. A knowledgeable arborist should perform a visual tree assessment, including tree identification, growth characteristics, size, tree biology, and site specific environmental influences. Most importantly is the risk evaluation of a specific tree branch, limb or complete tree failure and risk of harm to any surrounding potential target(s).

Managing Tree Risk

The tree above was a 10-ton Erythrina (Coral tree) that fell and crushed the car below. The tree was noted to have lost a limb earlier but was not properly inspected, nor was the risk abated. http://www.stuff.co.nz/auckland/470947

Trees pose a risk only when there is a target. A target can be a person, animal, property, vehicle; almost anything of value can be considered a potential target.
In the urban forest, trees are located in immediate proximity to people, buildings, vehicles, and countless moving and stationary targets. Sites requiring special attention due to increased risk include parks, schools and playgrounds, campuses, golf courses, athletic fields, and adjacent buildings. While the simplest means to reduce risk is to remove the target, that is not a practical reality in most urban settings. Therefore, an active risk management plan or policy will help reduce the risk of your trees causing a serious accident or injury resulting in a lawsuit.

Schedule an annual visual tree inspection and hazard evaluation by a certified arborist.
Implement the recommendations made in the inspection report.
For larger properties, consider a risk management policy and program.
For larger sites, implement a tree inventory log, noting identification, location, size, health and special characteristics of all site trees.
Work with a certified arborist trained in visual tree assessment and tree hazard evaluation.
Maintain written records, pictures and documents that support your efforts to maintain and protect the public from tree related hazardous conditions.

Conclusion

There are certain “red flags” used in visual tree assessment that you should be aware of. If you notice any of the following symptoms on your trees, contact a tree professional immediately:

Large holes, fissures and cracks in the tree trunk
Obvious areas of rot or decay including tree hollows
Presence of birds, insects, ants etc streaming into tree openings
Broken branches, dead and hanging limbs
Sucker or aberrant growth
Conks, mushrooms or fungi fruiting bodies at base of tree or on trunk
Any line of sight obstruction

Although a property owner may not want to know, thinking ignorance of a condition eliminates potential liability, our judicial system continues to find owners have a duty to inspect and maintain their properties and ignorance of a hazard is not an adequate defense.

The benefits of implementing an annual tree inspection and maintenance:

1. Increase in tree aesthetic appearance, health and vigor.
2. Increase in tree and property value.
3. Reduction in tree hazard risk.
4. Foundation for a legal defense.

An ounce of prevention is worth a pound of cure. Using a certified arborist for an annual tree inspection and monitoring program is an effective means to reduce tree hazard risk while improving the health and vigor of your investment. Just as you maintain your home, vehicles and other physical possessions, trees grown in the urban environment must receive the proper care and maintenance to keep them in a healthy, vigorous and safe condition.

Article Acknowledgments:
Mr. Mark Duntemann, Natural Path Urban Forestry, Seminar on Tree Risk Management, August, 20, 2010.
Premise Liability and Your Trees, by Petger S. Beering, Esq. and Judson R. Scott, RCA #392, American Society of Consulting Arborists, #3, 2010