Crown Partners
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Expert Witnessing isn't for the Timid
By Don Dale
It may be the golden fleece of the arborist’s world, becoming an expert witness. That’s where the big bucks are, right? If you want to earn $250 per hour, or more, just get some experience and head for the courtroom.
Ted Stamen has a word of caution, however. Do a reality check first.
An experienced arborist, horticulturist and tree service trainer in Mission Viejo, California, he was an expert witness for 16 years. Last year he quit. It was too much for him.
“You earn those fees,” Stamen says.
His last job was in a litigation case against the State of California, where a woman was hit by a car, allegedly due to limited visibility because of trees and other factors. Stamen was hired as an expert witness for the defendant and was deposed by the opposing attorney, a deputy attorney general for the state, for about seven hours over two days in a depressing building. The case was finally settled, but being “beaten on” by the attorney was the last straw for him.
There is tremendous stress involved in those cases, Stamen says. You not only have to be a good consulting arborist and know the tree business, you also have to be able to handle the stress of high-stakes cases in which emotions run high. And you have to be able to remain calm in the face of withering cross-examination while under oath in court.
As an expert witness must be able to formulate opinions about the tree case and be able to defend them in a deposition orcourtroom months or years later. Photo courtesy of Patrick Berry.
“It takes a special personality, I think, being an expert witness,” Stamen says. Yes, he says the fees can be high – he was making $250 per hour for time spent in depositions, for example – but there is a lot of tension involved when a defendant is suing for millions of dollars and an insurance company is hiring powerful attorneys to prevent that from being successful. Most cases are, in fact, settled out of court, but the tree expert still has to prepare for the worst. It was too much for Stamen.
Joe Samnik has been in the tree industry for 40 years and has been an expert witness in more than 500 litigation cases. His business, Samnik and Associates Expert Tree Consultants in Tampa Bay, Florida, is thriving. He is a regular speaker on the subject of expert witnesses at TCIA and ISA seminars. And, invariably, he has arborists come up to him after meetings and say they want to wind down their tree careers by becoming expert witnesses. He tries to inject a word of caution.
“It’s incredible, it’s crushing,” Samnik says of being on the witness stand in a high-stakes lawsuit. You not only have to be an expert investigator, you have to be able to handle the legal pressure. “On the other side is a highly skilled attorney who is trying to disqualify you.” And if your testimony is weak or dishonest, that could be the end of your career.
But actually, that’s not what is at the cornerstone of the career of an expert witness, Samnik says. That would be “honor, integrity and character.” If you don’t have that, don’t even bother. You will be caught out and come to a bad end if you bias or doctor the evidence. The expert witnesses who are willing to fudge their testimony to help win a case will not last long.
He says the two main reasons that arborists want to become expert witnesses are the money and the “glory.” That is, they want to move up to the big time. And in some ways, an expert witness is at the peak of the tree service profession. There will be small, sneaky illegal tree cutting cases, but there can also be high-profile cases where injury or death is involved. But when emotions run this high and millions of dollars are at stake, as in wrongful deaths or cases of eminent domain, the expert must realize that he is not only playing with fire, he is also working “at the heart of the constitution.” He has attorneys speak at his seminars, and the audience always ends up being grounded in reality.
“It becomes an immediate reality lesson in polarizing fear,” Samnik notes, because they see right away that this requires skills very different than those required to prune or plant trees. Even after all these years, Samnik is likely to wake up at 2 a.m. on the day of a trial, jotting notes and trying to plan out a courtroom strategy.
“There are two things you don’t want to see in life,” Samnik says. “One is sausage being made. And the other is seeing an expert witness preparing for testimony.”
Samnik charges from $250 to $500 per hour, depending on the area of law and the difficulty of his job as a witness. But he also has to maintain an office and three employees who are essential in helping him sort out the research and create the reports that will be required in these cases. You can be a one-man band, he says, but not if you have several high-risk cases going at once. And the stress is tremendous when there are opposing forces – and very intelligent people – trying to win a case.
“Some of these guys are monsters,” he says of courtroom attorneys. They not only know how to perform courtroom dramas to woo the jury at your expense, they also will have developed a very smart strategy to “dismantle” you and the evidence you will have spent many hours collecting.
He explains that the arborist has to be “very, very good” at his consulting job in order to be a witness. But that is actually way down the list of skills required. One of the most important is to be able to work with and do battle with attorneys, who are trained to dissect your every word in a deposition or on the stand in front of a judge and jury. The first helpful skill, he insists, is the ability to say no. He has become good at questioning attorneys who want to hire him, for example, in order to find out whether they are going to be poor communicators or ask him to be dishonest. He simply refuses to work with them, because his integrity is the backbone of his business and the stress is high enough without having the attorney you work for leaving things until the last minute.
But the witness also has power. He knows more than the attorney about trees, and he can turn a case in an instant. Samnik recalls a recent case in which a man was electrocuted by power lines while picking fruit on his own property. The power company’s witnesses maintained that the tree had been pruned back 10 feet from the power lines, but Samnik testified that it was only 8 feet away. The discrepancy ruined the case for the defendant. It was a case where Samnik put in more than 100 hours of prep time, three hours of depositions and was in court for only a brief period. Yet, because of the stakes, it was “absolutely numbing.”
Randall S. Stamen is an attorney who specializes in tree matters (and is Ted Stamen’s son) in Riverside, California. As a courtroom insider, certified arborist and the owner of his own law firm, he regularly works with and cross-examines expert witnesses. He echoes Samnik’s sentiments about honesty and integrity, noting that apart from being able to appraise trees and judge whether they are hazardous, the witness must establish himself or herself as unbiased.
“Some attorneys are not going to leave any stone unturned, no matter how trivial the details,” Stamen says, and the tree expert must know the case inside and out as well as footnote the proper references. He must be able to formulate opinions about the tree case and be able to defend them in a deposition or courtroom months or years later. “That’s one of the most stressful times for an expert witness.”
He has seen witnesses lose their cool while under testimony, including misidentifying trees, and it isn’t a pretty sight. The results can be horrifying, including exposure in the media and to lawsuits. Depositions can also be stressful, because the opposing attorney will try to call a witness’ entire investigation into question.
“You can almost see the attorney and the expert witness hopping across the table and going at each other’s throats,” Stamen says. Another intimidating point for an expert witness is after the deposition. Once the opposing attorney utilizes that evidence, the witness loses his anonymity and becomes part of the public testim ony. That exposure can be daunting.
Yet Stamen, like Samnik, emphasizes that the expert witness’ foundation is his integrity. He won’t hire a witness who wants to bias his evidence to please him. That case could be in for a big surprise in court, because there will be contradictory and probably damaging testimony.
“I want to know where my case really stands,” Stamen points out. There can be a temptation to “sell out” and tell an attorney what he wants to hear in order to get repeat business, but it’s one of the worst things a witness can do. One of the oddities of tree issues is that when two witnesses in opposing camps have completely different views, the case will likely have to go to trial. When the opposing expert witnesses agree on the evidence, there probably will be a settlement.
Stamen notes that one of the most important elements that he looks for in a witness that he hires is a pleasant and open demeanor on the stand. He’s worked for both plaintiffs and defendants, and the best witnesses know how to communicate.
That’s a point that Lew Bloch makes, also. Owner of Bloch Consulting Group in Potomac, Maryland, he has been an expert witness for 15 years and is the author of Tree Law Cases in the USA. Over the years he has investigated about 30 tree fatalities. He says that there will likely be reports to write, so writing skills are good to have.
“They require oral communication skills as well when you go to court,” Bloch says. It’s important to learn those skills, and it’s important to not take cases you are not comfortable with. He is not stressed when he goes into court now, but he was when he started out. So the skills can be learned.
Like everybody contacted for this article, Bloch emphasizes an unbiased approach to investigations. Part of the job will be to help the client, which means there will be a tendency to testify in favor of your team. This must be done cautiously in order to remain honest and keep the testimony fact-based. As Samnik points out, that must be done even if there are women and children crying in the courtroom and rooting for your client to lose the case.
“You can’t let that affect you,” Samnik says. “If you become an advocate your career is over.” His office has a motto, which is “The number is the number.” That means that whatever facts the expert witness’ investigation comes up with are the facts that must be presented.
So why do Samnik and Bloch continue in such a pressure-cooker job? Neither mentions the money. They both say they like the challenge and the investigative aspects. In short, it’s a competitive arena, and a passive personality type may not be the right type for this job description.
“If you’ve got that kind of feeling about it you shouldn’t be doing this kind of work,” Bloch says.
“Justice. The thrill of the fight,” Samnik says about why he continues. And that takes a special kind of person.
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