My Day in Court: Arboriculture Gone Bad
Monday, April 2, 2012 at 11:08AM
Howard Gaffin

Originally published in The Arboricultural Consultant

“Howard, I don’t think we are going to call you to testify.” Those were the words spoken to me over lunch near the courthouse by the attorney that hired me. What!! I had written a report. I had spent numerous hours mulling over pho- tographs and going over the particulars of the case with lawyers. I had just spent two days listening to watching-paint-dry testimony. I was well prepared and eager to display my chops. I even bought shoes.

This story is just another small tragedy brought on by the two Misses: communication and information. It starts with a well-intentioned offer by the pool owners’ father-in-law to have some trees pruned back from the pool. The trees were growing on the neighboring property and some of the limbs were growing over the boundary line toward the pool. One property owner testified that he had contracted an individual to prune back the trees to the property line, but had instructed him to not do anything beyond that without permission from the tree owners. From here, it all goes bad. The contractor that was hired for the job had no education or training in arbori- culture, but had been “doing this for over 30 years.” Judging from his appearance in court, he is now a painter. The tree owners were never contacted to discuss the work beforehand. They discovered that the limbs had been removed a few days later. It was clear that cuts had been made on their side of the property line.

The next player in this sad tale was a “certified arborist with over 20 years of experience.” He provided a two-sentence statement to the tree owners condemning the trees as unsafe and un-repairable. He also provided an estimate for removal of the two trees and planting two new ones.

Enter the lawyers. Two years later, based on the information provided by the arborist, the tree owners decided to sue for damages to their trees. The defendants’ insurance companies (two defendants were involved) decided they weren’t going to settle. I was hired as an expert witness for the defense. My assignment:

My first impression upon viewing the trees on site was that their combined appraised value would not equal the cost of a lawsuit. The species, condition, and location ratings would all conspire to produce a low value. While the cuts made on the trees were ill advised, it would be folly to declare that they would have a major negative effect. One of the trees exhibited serious root and trunk issues, and had clearly been in decline for some time. The other tree was in slightly better shape, and neither posed any serious threats to the property.

Research on the individual responsible for providing the plaintiff with the ammunition for a lawsuit revealed that he was indeed listed as a Massachusetts Certified Arborist. The problem is that he was listed as an employee for a company he has not worked for in over five years. No mention of his current busi- ness could be found on the MAA, ISA or TCIA websites. Statements made by this individual in court caused me to question the validity of his certification, and the extent of his knowledge.

This was a great experience for me. I went through the entire process leading up to testifying. I learned a lot, and got paid well. It was also rather depressing. The plaintiffs’ lawyer seemed ill prepared, and her witnesses’ testimony weak and contradictory. Their expert was the same individual who had provided the estimate. He talked of how the trees were now “unbalanced.” He declared all Norway maples to be dangerous trees. He referenced a tree maintenance textbook last published in 1988.

The side I was on had three attorneys and the backing of insurance representatives. We had poster sized prints and a thick book of 8" by 10" photo glossies with circles and arrows. The case was essentially won when the court finally tracked down the individual who did the cutting. He admitted that he had been instructed not to cut beyond the property line without permission from the tree owners. When asked if he had breached the property line to make the cuts, he replied that he had not, but the pole-saw he was holding did.

My lawyers’ decision not to call on me was a strategic one. It was clear the case was very weak, and the bored-to-death jury had seen enough. No need to drag this on and risk irritating any jurors. It also took the plaintiff’s lawyer by surprise, eliminating any possibility that my testimony could be used to her advantage.
The case was decided for the defendants in 25 minutes. Upon reflection, I cannot help but feel badly for the tree owners. This could have all been avoided if a competent certified arborist had been hired by the pool owners in the first place, or a competent Consulting Arborist had been hired by the tree owners before bringing on a lawsuit. The thousands wasted on lawyers’ fees could have been spent on remedial treatments for the trees, or new trees that would provide far better benefits. I am left with the closing remarks made by the plaintiff. When asked “How do you feel when you look out toward your trees now?” she replied in a tired voice “Mostly, I just feel sad.”

While I normally try to mind my own business, I did feel compelled to contact the arborist I encountered at the trial. I believe his trusted opinion led these tree owners down a costly path to nowhere.
I sent him an e-mail, in which I tried to diplomatically express my disappointment in his testimony, along with links to ISA, TCIA, and ASCA. I also invited him to talk over a cup of coffee, and await a reply.

Howard Gaffin, RCA #458



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