Posts Tagged ‘Expert Witness’


No plant appraisal assignment requires more skill, knowledge, training and combined horticulture knowledge than appraising a tree farm or plant nursery. And the deep end of the pool is eminent domain (especially if there is a partial Taking) and product liability. The former requiring the appraiser to make whole the client and the latter a hide and go seek format in data collection and evidence.

The plant (including trees) appraiser’s first obstacle is how to value a plant that has no value in the marketplace. Not 100% of plants are ready for sale in any given wholesale nursery at any given time. There are different stages of development that a plant must go through to become ready for market. The problem comes when the plant is at one end of the development scale or the other; either just a seedling or within a few months of maturity. And everything in between. The law has definitive rulings on just how to appraise such developmental stages of growth. And the plant expert must be able to testify as to the correct approach to each development stage of growth. This is a contact sport. Put in your mouth piece.

Further, the plant appraiser must be able to quantify and qualify the costs of producing each plant size; from soup to nuts, the math and knowledge of producing plants is formidable. And the subject nursery operation is never the same from grower to grower. The plant appraiser must be able to separate what is being claimed by the grower and the truth and facts. When people are scared they tend to state what they think the appraiser wants to hear. Many times the truth lies elsewhere. The plant appraiser must know where to find these facts so that just compensation may be established by the trier of fact.

The rate of turn-over in inventory must be established and published. An opinion of value must include how many times in a given time period a particular plant sells and the growing cycle renews. This cycle is necessary to establish values into perpetuity.

What maintenance practices are being employed is crucial to the opinion of value. The chemicals used and their set-back requirements by label instructions must be known. The methods of pest control, including weed control is crucial in the understanding of how the business is being professionally operated. Is there waste? Is there efficacy? And what of quality of the plant material, is that a factor in placing a value on a plant.

I’m not at all certain there exists more than a ½ dozen arborists in our nation that are truly qualified to appraise a plant/tree nursery. I know of one other than myself, and I’m still learning; so is the other person. My history includes 50 years of practice in the trade and a former nursery owner as well. As a professional I was fortunate enough to be trained in nursery appraisals by one of the nation’s foremost property rights attorneys. Over the decades I’ve had the good fortune to be trained by scores of other property rights attorneys. My collegiality are trained by other arborists. In a group of those trainers at a recent international conference I posed the simple question to them: just how many of you guys have defended your opinions of value in a court of law? How many depositions? Not one hand went up. Not one of the trainers had ever been to court or deposition. And these are the good professionals training other arborists how to appraise a nursery and trees and plants.

Caveat emptor is now gently offered advise to the fine and gifted attorneys who defend and prosecute those clients looking for just compensation in the valuation of trees and plants.

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How do you know if you’ve got the right guy at your corporate door to preserve your tree?  Well, you either got a word-of-mouth referral or you saw his advertisement somewhere; perhaps on the web, perhaps you googled, tree preservation; perhaps you found the guy in print somewhere.  But you’re a smart guy yourself.  You did not get to where you are by not asking the right questions.  If you did marry the boss’s daughter you earned your position.

You already know that the 1st question you should pose regards the ANSI standards.  If the guy looks at you with a blank stare you’ve probably got the wrong person.  Remember please, the 1st rule of tree preservation, or for that matter any assignment, is to protect the client.  You cannot protect the client from tree failures, wrongful death, personal injury, or breach of contract by not 1st covering your posterior with national standards.

But what about after national standards, what comes next?  Well, the tree care practitioner in front of you should at a minimum present to you some testing to be conducted on the tree you are considering to preserve.  Recall what happens when you go for your annual checkup.  Does the doctor take blood work?  What would your reaction be if the doctor came into the office, sat down, and started telling you what was wrong with you?   No bloodwork.  No x-rays.  No type of testing whatsoever.  Just started to diagnose your problem by looking at you.  How would you respond?  Seriously.  After the initial shock you most undoubtedly would leave his office never to return and never to have forgotten the experience.  Yet you’re ready to do that with the important tree which you hope to preserve.  Right?  Right.

The arborist at your proverbial tour should be recommending to you soil testing and tissue testing.  Think of a buffet table.  As you walk down the endless array of choices before you, do you take a little bit of everything that’s offered?  Of course not.  Now think of the soil in which your tree is growing as the buffet table.  You need to know what’s on that table before you make a selection.  You need to know what’s in the soil before you start the preservation protocol.  But what’s in the soil is only part of the story.  You also need to know what the tree has taken up from that which is being offered.  That’s tissue testing.  The soil may, but certainly will not, have an abundance of nutrients in it but the tree will not take up all of those nutrients.  Just like you did not take a sampling from the buffet table of everything that was being offered.

Once your arborist has both of these tests they should be placed in a juxtaposition for analysis.  There is a plethora of diagnostic information that must be known before a tree can be successfully preserved.  As an example, probably the most important component is the soil ph.  PH, the power of hydrogen, tells you if the soil is “sweet” or if the soil is “sour”.  Why?  Because it affects the ability of taking up certain nutrients from the soil profile into the tree.  PH affects a number of other things including microorganisms and their activity in the soil.  For your purposes, you want to know about the up take phenomena.  There’s also the cation exchange capacity which will tell you what nutrients will leach out of the soil profile which in turn will enable you to create a maintenance regime that will keep the tree healthy in the after situation of the preservation effort.  The estimated nitrogen releases another important component of soil testing.

More easily explained are “danger words” or “quack-talk” that is certain to come from the person in front of you should they not know that of which they speak.  Some of these bad words include organic inoculations, liquid organics, mycorrhizae injections / inoculations, deep-root fertilization, and fertilization itself; especially bad, nitrogen.  Should you hear any of these words please let them serve as danger signal to you that the person in front of you knows not of tree biology or meaningful tree preservation?   They are quacks.  Sometimes unwittingly; sometimes not.  But it doesn’t make a difference.  Get them out of your office as quickly as possible.  If they sit there too long they may talk you into buying their service.  And that would be a mistake.



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TREE PRESERVATION Joe Samnik, Consulting Arborist

Different people have different perspectives on tree preservation.  The first thing a client, typically a developer thinks about regarding tree preservation is money; nothing wrong with that, and it’s perfectly understandable.  The first thing a tree colleague thinks about when preservation is the subject is tree biology.  Nobody is right and nobody is wrong.  It’s always a matter of emphasis. But what should be the first thing the consultant thinks about regarding tree preservation or its kissing cousin, tree transplanting?

The Golden Rule at Samnik and Ballard is:  Protect Your Client.  The first thing that ought to come to mind as a consultant is how many national standards, best management practices, or other treatise must be considered to protect the client from litigation or claims if something goes wrong.


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Wrongful Death and Personal Injury

Someone has been injured. Perhaps, someone has been killed and somebody seeks justice. Whether a defendant or plaintiff, someone has come to you for justice.

With all of your expertise as a top litigator, with all of your experience with matter of negligence, you need an expert who knows the vast intricacies of tree and plant workings. You need to know why something failed in part or in whole. Whether the failure is related to structural integrity issues, you need to know cause and effect. You need to base your case on duty. But of all the knowledge you seek, the cornerstone of your case rest upon the honor, integrity and character of the expert.

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