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<Wayne Cahilly>
posted
I'd like to hear your thoughts on this one:

I was hired as an expert by an attorney who in my opinion, was in over his head and floundering. He had two weeks to remaining before oral arguments and no idea how to establish damages in his case, or how he was going to argue on behalf of his client. The situation involved a number of trees removed from the wrong property, there were photos, of course there was the site as it existed after the cutting, however, there were no stumps because they had be dug out or buried during regrading work that occured as well.

I was given wide latitude to develop valuation for the missing trees, duplicating photos, rephotographing the site from the same positions that had been taken during the trespass, created a site map to scale for use in court, etc., and spent considerable time reviewing each item with my client/attorney. Basiclly I did my job.

Here's the rub. I testified in court for 2.5 hours, did just fine in retaining a logical sequence of evidence under cross ex and recross, only to discover that my attorney/client had failed to research case law to support the position we had agreed was appropriate. I could have provided him with cases if he had requested.

At what point when in a situation like this do you belive the line is crossed from impartial expert to advocate? I could tell early on the attorney was lost, I could have done his research for him, I chose not to because my assignment was valuation, however, in the end, my valuation testimony was disallowed based on lack of case law.

Wayne
 
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<Scott Cullen>
posted
Reply to post by Wayne Cahilly, on September 21, 1999 at 09:02:38:

Well Wayne, when you and I discussed this during Hurricane Floyd, last week, Steve and Russ must have been listening! So here's your forum.

One issue, as you query, is just how much the impartial, testifying expert can or
 
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<Scott Cullen>
posted
Reply to post by Wayne Cahilly, on September 21, 1999 at 09:02:38:

Well Wayne, when you and I discussed this during Hurricane Floyd, last week, Steve and Russ must have been listening! So here's your forum.

One issue, as you query, is just how much the impartial, testifying expert can or should help the attorney/advocate prep the case.

Another is, will the expert get paid for it. It seems like attorneys often want a quick, inexpensive opinion. Often the potential award doesn't justify a lot of expert expense, so that's ethical for both attorney and expert. But as you point out, what use is the exercise at all if the attorney cannot have it accepted by the court? So do we routinely offer to provide supporting background. Do we have written materials we give them for free? What if they don't want discoverable written materials. Seems like a lot of overlap of ethics and practice management.
 
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<Paul M Davis>
posted
Reply to post by Wayne Cahilly, on September 21, 1999 at 09:02:38:

>>>I could tell early on the attorney was lost, I could have done his research for him, I chose not to because my assignment was valuation, however, in the end, my valuation testimony was disallowed based on lack of case law.<<<

One approach is to look at other professions and see how they handle similar situations. For example, if a patient visits a doctor and tells him that he needs a certain type of operation...however the doctor recognizes from his own observations based upon his education and experience that the patient is actually in need of another type of treatment than specifically requested.

Wouldn't the doctor have an ethical and professional obligation to inform the patient of his opinion, even if contrary to what what the patient specifically requested? Doesn't the doctor have an obligation to inform a patient of side effects of prescription medication, even though the patient might could just as well read the precautions in the box?

Attorneys are fallible humans, with limitations just like the rest of us. Sometimes no smarter either. If he is working in an area where he doesn't have previous expertise, it seems to me that we might be able to (being judicious and sensitive to the political issues) assist him in advocating for his client by recommending theory, case citations, expert's past relevant experiences, etc. for his use (or not, as he chooses). This could be done in consultation, rather than in open court, to avoid any impropriety or appearance that you are the one practicing law, of course. Most of them appreciate it, I suspect.
 
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<Scott>
posted
Reply to post by Paul M Davis, on September 21, 1999 at 09:02:38:

All good observations Paul. What I've never been entirely clear on is the propriety of acting first as a litigation consultant -- helping the advocate position the case to prevail -- and then testifying as an impartial and independent expert. I've heard it said that the consuling role MAY preceed the testifying role but that once testimony begins the expert must stop the consulting role and may not go back to it. I do not know if this is true generally or if it varies by jurisdiction. Anxious for any informed input.

The propriety issue would of course be a threshhold for offering the additional service of attorney prep in addition to simply estimating value (or trying to explain tree failure or whatever).
 
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<Wayne>
posted
Reply to post by Scott Cullen, on September 21, 1999 at 09:02:38:

Scott,

You hit the nail on the head on something I hadn't mentioned. The attorney did not want quantities of written material or a written report because opposing councel had been mercyless in discovery earlier in the case. This was a case of extensive conversations, reviews, challenges on figures, methods, etc, but no notes. During the two week period prior to oral arguments, we spent 20 hours in review of material that took and additional 20 hours to generate (site plan, relocation from photos of the trees, methods of establishing tree dimensions from photographs, valuation figures and TFM, review of homeowner photos, blowups, and rephotos of the site.)

Given all of that, the attorney client knew exactly where my testimony was going. He had made it clear that he didnt want documents sent to his office so having a packet of pre-selected information regarding case law would not have been helpful here.

Still not sure where the line between expert and advocate is in this.

Wayne
 
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<Julian Dunster>
posted
Reply to post by Scott, on September 21, 1999 at 15:07:12:

To jump in or not to jump in, that is the question.

All good postings and some tough issues to deal with. In my experience with lawyers (as we call them in the great white north), many of them do not know the case law and their clients are not prepared to pay theirlawyers time to research it thoroughly. Hence, the Arb and the Law In Canada book, where we did the work and can now simply pass it on to the lawyers for their attention.

It is my experience that having a good knowledge of the case law, but being careful not to presume expert knowledge about the intricacies of the legal interpretaions of the case law, is a useful tool for the consulting arborist. I see no reason why, as an expert working on either side of the case, we should not be drawing the lawyer's attention to the case law that affects the isue at hand. One way to ensure the ability to assist the lawyers is to specifiy in your contract the latitude to discuss the facts (as you see them) with the lawyer and clarify the context of these facts ion light of other case law. For example, I have undertaken several appraisals for court cases, and generally I try to weave in some reference to the generally accepted concept that restoration work cannot be priced to re-create an exact duplicate of what was lost. The Canadian case law is clear on this. Reasonable costs to restore some semblance of a stable landscape is acceptable; exact replication of the landscape at exhorbiant cost is not "Reasonable."

Ethically, I think we have an obligation to make the lawyers fully aware of the context and constraints under which we are operating. It is up to the individual to decide how far one might go with the dissemination of the information. While I agree that the role of expert and advocate have to be separated, I have often played both in any one case, firstly by discussing the facts of the case as I see them, and then suggesting where the strengths and weaknesses of a case may lie in light of the facts I have determined. I see it as our role as experts to assist the trier of fact i.e. the judge. In some cases, I have disagreed with the legal approaches adopted and have made my position clear in writing. If the lawyers choose to ignore the expert advice received then the onus for success or failure passes to them. The expert has done his / her job by determining the facts.

As tree cases become more common it is inevitable that arborists will be in court aginst each other, each claiming they have the "facts" and that the other side is wrong in one or more ways. The judge and jury then decides. This is where it becomes more tricky for the expert. We must carefully determine the facts and then be prepared to defend them.

As professionals we have an ethical obligation to maintain high standards of objectivity, but we should never forget that we are merely humans, and that subjectivity creeps into everything at some stage. When dealing with trees there are so many intangible variables, many of which can only be quantified vaguely, that we should never lose sight of the margin of leeway in our assessment of the facts.

An example. A 30% shell thickness on a decayed trunk is held up as a threshold for acceptable trunk thickness. Yet, local experience would suggest that for some species, if you only have 30% left, start running away right now! In my area, 30% left at the base of a hemlock almost always means very extensive root rot that has started to work its way up into the trunk. The shell thickness then becomes nothing more than a surrogate indicator of massive root loss ands serious stability problems.

I gave a presentation on ethics at the PNW conference last year. It was amazing to see how folks responded to the various scenarios I put up on the screen, and suggests that we have some distance to go before we reach any concencus about what is or is not ethically correct.

All good grist fir the mill. Just remember that "It is what we learn after we know it all that really counts."

Julian
 
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<Scott>
posted
Reply to post by Julian Dunster, on September 21, 1999 at 17:46:31:

"As tree cases become more common it is inevitable that arborists will be in court aginst each other, each claiming they have the "facts" and that the other side is wrong in one or more ways. The judge and jury then decides. This is where it becomes more tricky for the expert. We must carefully determine the facts and then be prepared to defend them."

Using appraisal as a particular example, there is a limit to what we as experts can say with certainty. There are some things which are physical characteristics and which we can directly measure with relative precision. "Purely" objective perhaps. There are many other things that are subjective by their very nature such as value, or which require more or less subjective judgment or interpretation. The clever lawyers will try to get the opposing expert to characterize testimony and opinions as objective... "why yes of course my investigation was objective..." and then discredit it by attacking every facet and exposing imprecision or subjectivity. "How can both of these experts be right!?" I think we as experts must not be sucked into overstating precision or mischaracterizing the facts we observe and collect. If a "fact" is at issue it's really up to the jury or court to make the final determination as to that fact. The expert's role is to help the jury or court understand the surrounding facts, the things to which expertise can be applied.

But even after all that, Julian, you're right. Facts often allow differing interpretations and conclusions and experts may differ in their opinions. When this happens I think we experts should try not to be so much concerned with "winning" as to explain our interpretation and let the chips fall where they may. Not easy.
 
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