The ASCA Newsletter v52 i01 2019

Volume 52 issue

one 2 019

What’s Inside 1

President’s Message

3

Urban Wood Salvage Program—How We’re Making It Work in a Small Oregon Town

6

Key Differences Between Expert Witnesses and Fact Witnesses

11 Member News 11 In Memoriam: Brian Skinner 12 Meet the New ASCA Board Members!

13 Welcome New Members 13 New RCAs 16 Scenes from the ASCA 2018 Annual Conference 19 Industry Reports From ASCA’s Representatives 20 The Grammar Tree

1300 Piccard Drive, Suite LL 14 Rockville, MD 20850 Phone: 301.947.0483 Fax: 301.990.9771 Email: asca@asca-consultants.org www.asca-consultants.org

ASC A is an organization in transition. We have a new executive director, Therese Clemens, CAE, who I have had the great pleasure to work with and John Leffingwell, RCA #442 get to know over ASCA President the past year and a half. We have both committed to redoubling our efforts to connect with and listen to our membership as we guide the organization. To that end, one of my personal goals for my time on the board and as president is to “build bridges” between the board and membership, between staff and membership, and between ASCA and other organizations and professions.

I am also very excited to welcome three new board members this year: Jeff Ling from Indiana (former ASCA representative to the Sustainable Urban Forest Coalition); Micah Pace from Texas; and Patrick Anderson from North Carolina. We are grateful for their passion for the organization and willingness to give back, and I look forward to working closely with them on the important issues being tackled by the board.

Transition provides both challenges and opportunities for all of us. Personally, I find it challenging to balance the expectation that everything needs to change immediately with the reality that change, and especially organizational change, may take many years to implement. The result can be the perception that the board is not taking any action and is ignoring the membership. I can assure you that nothing is further from

the truth. The board is both listening to the membership and working to prioritize the work needed to realize change.

To do that, however, we must hear from the members—ideally, all of the members.

So, there will be opportunities for you to offer input over the course of my tenure on the board. I would challenge each member to take every opportunity to provide feedback. The board and staff review member feedback and use it to help identify goals and prioritize our work.

I am very excited to give you a preview of some of what the board is working on: • A call for Academy coaches went out to the membership in early January. The process for applying was spelled out, and materials for individuals to apply were available on the website.

• Look for new features in issues of The Consultant, including board member bios in this current issue and a message from the treasurer in a future issue.

• Member feedback from the 2018 Annual Conference and business meeting will be provided to the membership. As mentioned, this feedback is reviewed and used to analyze conference content and plan for future conferences.

• A Conference Program Committee has been formed to identify topics and speakers for the Annual Conference.

• As a follow-up to the work done by the Election Process Review Task Force (EPRTF), a new task force has been formed. The goal of the task force is to review the EPRTF recommendations and related materials and identify those critical path items that need to be addressed in order to revise the nominations and elections processes.

1 Arboricultural Consultant • volume 52 issue 1 2019

Continued on page 15

< home 2019 BOARD OF DIRECTORS President

John S. Leffingwell, RCA #442, Pleasanton, CA President-Elect

Richard Adkins, RCA #573, Gilbert, AZ

2019

Immediate Past President

Jonathan E. Butcher, RCA #486, Milford, OH Treasurer

Jeremy T. Chancey, RCA #646, Fort Lauderdale, FL

Annual Conference

Directors:

Patrick Anderson, RCA #475, Shelby, NC Glenn Gentzke, RCA #485, Tonawanda, NY Jeffrey Ling, RCA #337, Fort Wayne, IN Ron Matranga, RCA #488, Spring Valley, CA Micah Pace, RCA #607, McKinney, TX

December 8–11 Intercontinental New Orleans

New Orleans, LA

STAFF Executive Director

Thérèse O. Clemens, CAE Vice President Meetings

Grace L. Jan, CAE, CMP Managing Editor

Lynne Agoston Meetings Manager

Morgan Prior

Website Manager

Jeyin Lee

Member Services Coordinator

Julianne Clarke Accounting

Dawn Rosenfeld Exhibits/Sponsorship Manager

Barbara Bienkowski, CEM Marketing Director

Julie Hill

NEWSLET TER The Arboricultural Consultant is published four times a year

by ASCA. Articles and news items are encouraged and must be submitted six weeks prior to publication.

Editorial Review Committee Tom Bradley, RCA #492, Mississauga, ON Chad Clink, RCA #589, Cleveland, OH Christy Cuba, RCA #502, Sierra Madre, CA Thomas Dodge, RCA #584, Pacheco, CA Nick Drunasky, RCA #467, Woodbridge, VA Jordan Endahl, Vancouver, WA Briana Frank, Madison, WI Jeannine Lubeshkoff, RCA #500, Duarte, CA Andy Lueck, RCA #556, Chicago, IL Jason Miller, RCA #526, Woodbury, NJ Todd Prager, RCA #597, Lake Oswego, OR Lisa Smith, RCA #464, Los Angeles, CA Matt Weibel, RCA #534, Fair Lawn, NJ Robert Wells, RCA #593, Princeton, NJ

ASCA ANTITRUST STATEMENT The following antitrust statement has been approved by the president and board of directors of the American Society of Consulting Arborists.

asca-consultants.org

“Members of the American Society of Consulting Arborists, especially members of the board of directors and Society committees, are reminded that they do not and may not speak for or on behalf of the Society without the express permission of the president or board of directors of the American Society of Consulting Arborists. This prohibition includes the use of ASCA letterhead when making a statement of a technical, economic, or political nature. Members of ASCA speak only for themselves as professional consultants when giving opinions or making statements.”

American Society of Consulting Arborists

2

Arboricultural Consultant volume 52 issue 1 2019

< home

Urban Wood Salvage Program—How We’re Making It Work in a Small Oregon Town

By Jonathan Pywell

Urban lumber is all the rage. It’s this perfect marriage between artisanal, aesthetic, and environmental considerations, and it even ticks a box for the tired government mantra “doing more with less.” But how do you make it work?

Sawmills are expensive and take skill to run; most arborists like the idea of milling their wood, but the capital expense, delay between sawing and sale, and skill gap can make a successful program a major challenge. Our city removes about 100 trees per year for a variety of reasons: death, storm damage, infrastructure conflicts. Historically, our contractors have trucked most of the wood off for firewood or we’ve donated it to a local nonprofit for use as firewood for those in need. This has worked fine, but one day, when I was looking at a big sweetgum log, I thought, “Dang, that’s a lot of wood. I bet we could find a higher and better use for that stored carbon.” After all, one compelling reason for growing urban trees is to pull CO2 out of the air.

If the logs all simply went to firewood, then the CO2 would be released back into the atmosphere. We chip the small limbs for use as mulch in our landscape beds and on newly planted trees, but the larger diameter wood has a greater purpose than as firewood.

It’s all a great concept, but the devil is in the details. Most municipal foresters, when asked what they need most, will say “money” followed by “staff.” So, paying someone to mill wood or spending staff time to mill isn’t an attractive option.

The question is then, how to most effi-

ciently get logs turned into money. I have found that having the removal contractor or in-house crew deliver the log to a central location for milling, and then stockpiling until there are a few days’ worth of wood to mill, is the best solution. Try to keep logs between 8 feet and 12 feet, as these lengths provide a long enough board to be marketable for a variety of purposes and not too cumbersome to move. Make cuts 12 inches above a crotch to retain crotch figuring.

The thing to consider is that milling and drying require a lot of space, and it is a loud and dusty process. You want a level surface, preferably paved or gravel, with access to water and a covered area for air drying. If your town has an underutilized airport or industrial park, a sawmill that’s no longer operating, or a parking lot that goes unused for much of the year, these are the kind of sites you should explore.

If you are in an urban area, the space part of this whole thing will be a challenge.

You’ll want to check with local ordinances about noise limits as well. Make sure not to bite off more than you can chew, as space is expensive in large cities and wood is heavy and hard to move around. Start small—maybe just focus on the larger, higher value logs.

This gets us to point two: what is the best way to maximize value from a log, and how much can we expect to get from the average log? Well that’s why you want to partner with a skilled sawyer, not some random person who just bought a mill.

There are a LOT of those out there these days, so do your homework. Look at local

American Society of Consulting Arborists

3

shops to see what kiln-dried wood of the types in your forest sell for. That way, you can be selective about which species you choose to mill. Look for a sawyer with experience working with urban wood or at least experience working with hardwoods. Make sure they carry or can carry adequate insurance (adequate varies by community, so if you are working with a municipality, check with their risk manager or finance department to see what minimums they require to work on a city job). Just some rough numbers: a 24-inch diameter log that is 12 feet long contains approximately 300 board feet if wood; at $3–$10/bdft, that’s between $900 and $3,000. And that’s only if it’s all solid, marketable, dried, and sold.

Stickering and stacking and drying are critical steps. Stacking seems obvious, but this is not just heaving the wood willy-nilly into piles. Stacks should be organized by tree. As boards are cut from the log, they should be stacked together.

Place hardwood 4x4s under the stacks every 18 inches or so, perpendicular to the log length, making sure they are parallel with each other. Provide enough clearance to get a fork lift or pallet jack forks under them (think rungs on a ladder). Make sure you have stickers within a few inches of the end of the board, as this will reduce end-cracking. Place stickers (kiln-dried hardwood boards of a non-staining wood approximately ½ inch x 1.5 inches x 48 inches) on the first layer of boards directly above and parallel to the boards under your pile, then lay the next layer of boards, and then more

Arboricultural Consultant volume 52 issue 1 2019

< home Urban Wood Salvage Program continued

stickers. Plan ahead, and have stickers cut or delivered. Have your sawyer teach you how to do it or agree to stack and sticker it for you. The wood should air dry out of direct sunlight in a place with good air flow for a year or more before kiln drying. This is easiest to do outside under a pole barn or hoop house with shade cloth and open ends. It can also happen in a garage or shop space, but airflow is critical. If you have access to a forklift, you can stack quite high to save floor space.

There are details that are specific to your climate, so do your research by asking your sawyer, other arborists who mill for fun, wood workers, etc., and talk to other people in the area who work with wood to find out how to ensure that the wood can dry evenly. Coating the ends of your logs with log sealer is a wise investment as well (more on this later), as it reduces

splitting. The market is saturated with green wood that’s been poorly stickered, so if you want to actually sell anything, be sure to pay special attention to this step. Plan to kiln dry the wood if you have concerns about insects or long-term stability. If there isn’t a kiln in your area, you may want to consider constructing a solar kiln. In many parts of the country, air drying can get the wood to within a few percentage points for useable lumber, but if you want to kill bugs and stop fungal progress, then high-temperature kiln drying is key, and it has the added benefit of taking out that last bit of moisture. If your sawyer doesn’t have a kiln, consider looking for one. If it’s going to require a big outlay of money, however, then you may want to see if you can do a split with the kiln operator as well. I’ve been quoted $.50–.60/bdft for kiln dry-

American Society of Consulting Arborists

4

ing. If your final product is worth $25/ bdft and you know you can sell it, that’s a good investment. But if it’s worth $2/ bdft and you don’t have a buyer, then air drying is probably the way to go.

Another quick note on bugs and disease.

Check with your local USDA/APHIS folks to make sure you aren’t in or moving through any quarantine zones. In the Northeast and Midwestern states, the emerald ash borer and Asian long horn beetles have devastated huge swaths of the country, leading to quarantine zones that limit the movement of wood of host species into and out of those areas.

It’s prudent to have the wood surfaced if it’s a slab (generally defined as a large, thick board that has a “live edge,” meaning that the board still has the bark or

Arboricultural Consultant volume 52 issue 1 2019

< home Urban Wood Salvage Program continued

cambium of the tree intact on the edge); slabs look so much better when they’ve had the saw marks taken off and will usually sell faster. This market is all about value-added and differentiation, so presentation is key. A lot of the folks buying slabs may not have enough experience to be able to recognize a diamond in the rough, so help them out by doing what you can to show off the grain.

A few hints on things to avoid: 1. Don’t waste your time and energy milling small-diameter, low-value wood or try to compete with the big mills on dimensional lumber. This is a costly, time-consuming endeavor.

Make sure you are being compensated adequately.

2. Know your product; each species has its quirks, from cutting to drying.

These quirks may not be the same from region to region. For example trees with interlocking grain like elm and sweetgum can be trickier to dry and may want to twist and cup and crack. Slower drying and cutting thicker may be helpful.

3. Be prepared for breakdowns, setbacks, and resistance, as this is a relatively young industry, and there are a lot of unknowns when milling urban wood (e.g., nails, decay, marketability).

4. Find a way to use all the sawdust (mushroom growers, blueberry farms?); keep good hardwood sawdust separate from softwoods, and don’t mix black walnut with anything you plan to use on a garden.

5. Be organized and track where each log came from; provenance is important to many potential customers. A simple spreadsheet can work, but there are also apps and software for inventory tracking that can help if you are working on a large scale. Painting the log ends with color-coded paint for each species is a good way to start, it also reduces end cracking.

6. Recognize what you are good at and find folks to assist you with the things you aren’t. If you aren’t a sales person, work with a retailer to sell your wood.

Don’t try to be a one-person operation.

You’ll burn out. Create a cooperative operation.

We got into the business of milling our removals when I heard about a program in a neighboring community. There was a sawyer who was working with a local school to supply it with lumber from salvaged logs for its shop program. I made a few calls and set up a meeting with the sawyer, and he was open to a collaborative project. We discussed potential payment options, from paying by the hour for his services to paying by the board

American Society of Consulting Arborists

5

foot. All this would require the city to front money for an uncertain return— not an easy sale to a small-town finance department. We then suggested we just split the profits. The city effectively becomes the logger supplying logs to the mill. The sawyer mills the wood and finds a buyer, and we split the proceeds.

It means that he has access to a greater stream of more interesting and unusual wood, and the city is able to recoup the value from our urban trees and ensure longer term storage of carbon.

So far it’s been a win for us, but I think it’s all about finding the best way for it to work in your community. I’d like to see a regional model emerge for urban lumber, whereby arborists, sawyers, woodworkers, contractors, and artisans can work together to increase use of locally sourced, sustainable logs.

Jon Pywell lives in Corvallis, Oregon, with his wife, Jen. He is the parks & recreation urban forester for the city of Corvallis and has worked hard to expand the program, including the addition of a routine structural pruning program, urban wood reuse, a tree stewardship program, and a greater degree of collaboration with other departments to improve tree selection and preservation. Before moving to Corvallis, he was the director of forestry for Brooklyn, New York. He has a degree in forestry from the University of Florida and is a Board Certified Master Arborist and Municipal Specialist TRAQ qualified.

Arboricultural Consultant volume 52 issue 1 2019

< home

Key Differences Between Expert Witnesses and Fact Witnesses

By James Komen, RCA #555

Consulting Arborists are hired to provide opinions and information about trees.

Often, they are called to do so in the context of litigation as experts or even as lay witnesses, also known as fact witnesses. Consultants may be designated as experts for litigation, or they may provide more limited consulting services for the parties involved. How a consultant is classified can have significant consequences on their testimony, involvement, and compensation.

A witness is an individual who testifies, under oath, a fact that will aid a court of law in resolving a case. In general, “every person is competent to be a witness, unless [the rules of evidence] provide otherwise.” Fed. R. Evid. 601. But unless a witness has special qualification as an expert in the subject matter, that witness will be limited to her own personal knowledge of the matter at hand.

Fed. R. Evid. 602. Statements given by witnesses are evaluated by the court’s finder-of-fact—the group or individual charged with determining the answer to a factual question based on evidence admitted at trial.

The resolution of questions of fact often requires specialized knowledge, experience, or training to interpret facts. Thus, there is a need for expert witnesses, those who are qualified by “knowledge, skill, experience, training, or education” to “help the trier of fact to understand the evidence or to determine a fact in issue.”

Fed. R. Evid. 702.

The differences between expert witnesses and fact witnesses may seem subtle, but there are some key distinctions. Expert witnesses can be well compensated, but most fact witnesses are paid only nominal consideration for their time and expenses. Fact witnesses can be legally obligated to attend trial or deposition, but in most cases, experts have discretion over which assignments they take.

And, while expert witnesses can testify to a broad range of topics and assertions, assertions by fact witnesses are very limited in their admissibility in court.

Expert witnesses and fact witnesses are governed by different sets of rules with respect to the admissibility of their testimony, the pre-trial disclosure of their identities and opinions, and their compensation. This article addresses some important differences between the two through the lens of consulting arboriculture. Though this article focuses mainly on the Federal Rules of Evidence and Federal Rules of Civil Procedure, most state procedural laws regarding witnesses share a number of close similarities. An in-depth discussion of various states’ procedural laws is beyond the scope of this article.

Testimony

According to Federal Rules of Evidence Rule 602, fact witnesses may testify to a matter only if they have “personal knowledge” of it. Fed. R. Evid. 602. This includes not only sensory and perception, but also opinions “rationally based on the witness’s perception” and “not based on scientific, technical, or other specialized

American Society of Consulting Arborists

6

knowledge.” Fed. R. Evid. 701. Rule 701 essentially draws a line between the content of the testimonies of fact witnesses and expert witnesses.

Fact witnesses can offer such testimony as: • “The tree’s canopy was green.”

The witness observed the tree. This observation is based on the witness’s sense of sight. If the witness did not personally observe the tree, then this statement would be inadmissible as hearsay (an out-of-court statement used to prove the truth of the matter asserted).

• “The tree was 5 feet from the property line.”

This assumes the witness actually measured or perceived the tree’s distance from the property line. Although it may include the use of a tool (a measuring tape, in this case), the results of the measurement were directly perceived.

• “The tree appeared healthy.”

Unlike the prior two assertions, this one is an opinion. Opinion testimony from fact witnesses is admissible if the opinion is rationally based on the witness’s perception. Here, the fact witness perceived the canopy was green and inferred the tree was healthy. Although another witness may contradict and opine that the tree was not healthy despite its green canopy, this assertion is still admissible for the finder of fact to evaluate during trial.

Arboricultural Consultant volume 52 issue 1 2019

< home Key Differences Between Expert Witnesses and Fact Witnesses continued

Fact witnesses cannot offer testimony such as: • “Tree cables should be inspected annually.”

This is an assertion of the standard of care, the conduct that would be expected of a reasonably prudent person. It is an opinion based on existing documentation, such as best management practices and industry standards. Since these are not common knowledge, a fact witness would not be allowed to testify to them. In contrast, an expert witness in the field of arboriculture could make this assertion if she was qualified by adequate experience, knowledge, and training to do so.

• “If the tree were not pruned in this way, it would not have died.”

This assertion is a hypothetical; the tree was actually pruned, so the witness is offering an opinion of a scenario that he did not directly perceive. This assertion would be inadmissible by a fact witness but admissible by a qualified expert witness.

• “He deliberately poisoned the tree.”

This assertion is inadmissible whether the witness is a fact witness or an expert witness. It is asserting another person’s state of mind, which cannot be known—only inferred. While the witness may testify to facts that support such a conclusion, it is up to the finder of fact to make the determination of a person’s state of mind.

In federal court, expert witnesses may testify opinions based on information that they received and did not directly perceive, provided that each of the four requirements in Rule 702 are met: a) The specialized knowledge [helps] the trier of fact to understand the evidence or to determine a fact in issue. b) The testimony is based on sufficient facts or data.

c) The testimony is the product of reliable principles and methods. d) The expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

Some states have a more stringent requirement for expert designation. California requires experts have knowledge that is “sufficiently beyond common experience…” Cal. Evid. Code § 801.

Unlike a fact witness, an expert is not required to have “personal knowledge” of the matter at hand, and the expert may base his or her opinion on facts or data “that the expert has been made aware of or personally observed.” Fed. R. Evid.

703. For example, although the expert may not have personally witnessed the irrigation provided to a tree, the expert may opine on the sufficiency of irrigation based on another person’s recollection of the irrigation schedule. “Unlike an ordinary [fact] witness…, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592.

Based on these requirements, experts may offer testimony such as: • Standard of Care: The level of performance at which a reasonably prudent person would be expected to act is critical in determining whether a party’s duty of care was met in a tort negligence case. Testimony regarding the standard of care expected of an individual will assist the finder of fact in determining whether there was a breach of duty, which is a fact at issue in such a case.

• Tree Appraisal: An appraisal of the value or cost of a tree will help the trier of fact determine the amount of loss in a controversy. It must be based on sufficient facts or data, such as nursery

American Society of Consulting Arborists

7

stock pricing and tree measurements. It must be the product of reliable principles and methods, such as those outlined in the Guide for Plant Appraisal. And the expert must also reliably apply the principles and methods to the facts of the case.

• Scientific or Technical Knowledge: An expert witness may explain the results of a relevant scientific study and how they apply to the facts of the case. For example, a study showing the efficacy rate of different trunk injection methods could be used as evidence to show that a party met its duty of care when it chose the method with the highest efficacy rate.

In addition to an expert’s opinions regarding the matter at issue, the expert will also be asked to testify to his or her credibility. This may include the expert’s credentialing level, past education, or experience in the field. But, while an expert can discuss her qualifications outside the facts of the case at hand, fact witnesses cannot testify as to their own honesty and credibility unless their reputation has been attacked. (Easton 2000).

Compensation for Testimony

As an inducement for spending time gathering data and formulating an opinion for the case, experts can be paid for their services. Payment may be hourly, per diem, or a flat project rate. Some consultants charge a “designation fee” in addition to their hourly rate to reflect the opportunity cost of reserving a trial date on the calendar, even if the case settles before trial. However, the expert’s compensation cannot be contingent upon the outcome of the case, or the jury’s perception of the credibility of the expert will come into question. All forms of payment and agreement between the expert and the hiring attorney are discoverable (see Pre-Trial Disclosure below) by the opposing party.

But whereas expert witnesses may require special payment for their services, fact

Arboricultural Consultant volume 52 issue 1 2019

< home Key Differences Between Expert Witnesses and Fact Witnesses continued

witnesses cannot be paid for their services. Fact witnesses may only be reimbursed for their direct expenses and lost time in delivering testimony. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 96-402 (1996). Different jurisdictions provide for witness compensation amounts, but they all tend to be very skimpy. In California, it is $35 per day plus $0.20 per mile traveled. Cal. Gov’t Code § 68093; see also 28 U.S.C.A. § 1821 ($40/day plus reasonable travel costs in Federal Court); see also La. Stat.

Ann. § 13:3671 ($8/day plus $0.16/mile in LA); see also N.Y. C.P.L.R. 8001 ($15/ day plus $0.23/mile in NY).

That is not to say a fact witness cannot be compensated more than the statutory minimums. In New York, the “per-day fee does not preclude a party from voluntarily paying such witness additional

amounts to compensate him or her for time lost.” N.Y. C.P.L.R. 8001. However, the voluntary payment provision must be tempered by the potential to bias the witness. While a fact witness may be compensated more than the statutory minimum, “the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business.” Caldwell v. Cablevision Sys. Corp., 20 N.Y.3d 365.

Trouble for a consultant arises when he or she is hired directly by a party to a lawsuit and not the party’s attorney. If the consultant is not designated as an expert witness, the consultant’s client does not have to pay the requested expert witness fee rate. Worse, since the consultant presumably has personal knowledge of the matter (after observing the tree in person,

American Society of Consulting Arborists

8

for example), the opposing counsel could potentially subpoena the consultant and require him or her to testify at trial or deposition with only the meager statutory witness fee as compensation.

This is a good reason for a consultant to require the attorney to hire him or her rather than the party involved in the conflict. If the party to the suit pays the consultant, his or her involvement in procuring advice is discoverable (see PreTrial Disclosure below). But if the attorney hires the consultant, the consultant’s involvement and reports are protected under work product privilege and only discoverable if the consultant is designated as an expert witness, for which he or she would likely require compensation. Fed. R. Civ. P. 26.

Arboricultural Consultant volume 52 issue 1 2019

< home Key Differences Between Expert Witnesses and Fact Witnesses continued

Pre-Trial Disclosure

After a complaint is filed by a plaintiff and an answer is filed by a defendant, the next phase of the litigation timeline begins: discovery. Discovery is a pretrial exchange of information between the two parties. Most information relating to a case is “discoverable,” meaning that a party can compel the opposition to provide a copy of it during this phase.

Discoverable materials include, “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses…” Fed. R. Civ. P. 26.

However, there are some documents and communications that are protected by the work product privilege—the option for a party’s attorney to withhold materials prepared in anticipation of litigation.

These materials may be disclosed voluntarily or withheld, so long as the consultant providing the information is not designated as a testifying expert witness.

Some consultants are never designated as experts; they provide their opinions to the attorney of record, and then their reports are never disclosed to the opposing party. But once an expert witness is designated, their information must be provided to the opposing party, and the expert’s materials and communications become discoverable, subject to some limitations.

In federal court, “communications between the party’s attorney and any [expert] witness” are still privileged (even after designation), except for communication relating to compensation for the expert or the facts or assumptions relied upon in forming the expert’s opinion.

Fed. R. Civ. P. 26. Also, federal court protects draft reports, so a consultant can prepare a report and revise it, and the opposing party would only be entitled to review the final version of the report.

Fed. R. Civ. P. 26 (b)(4)(b).

In contrast, some states require full disclosure of all communication between the designated expert and the attorney and all draft versions of reports. Florida allows discovery of all drafts and communications between attorney and expert. Peck v. Messina, 523 So. 2d 1154.

See also Nat’ l Steel Prod. Co. v. Superior Court, 164 Cal. App. 3d 476 (identifying an expert as a witness in CA waived the attorney-client privilege). Some cases can begin in state court and get removed to federal court; others can be remanded from federal court to state court, subjecting them to the new jurisdiction’s rules of civil procedure. It is good practice for a consultant to treat all communications and reports with the same sensitivity and caution as any other ordinarily discoverable materials.

When an expert is designated, the opposing party must be informed. In federal court, designated expert witnesses must be declared at least 90 days prior to the trial date, and all reports and materials upon which the expert will rely must be furnished to the opposing party. This is an important step, because failure to identify witness as required in Rule 26 will result in exclusion of that witness’s testimony. Fed. R. Civ. P. 37 (c) (1).

Experts must be disclosed in advance of trial, but lay witnesses need not be disclosed in advance of trial. (Kreiter 2016).

This means that consultants can still be subpoenaed and dragged into court after the expert designation period has passed.

However, if they are named as witnesses after the designation period, they will only be fact witnesses, and their testimony would be limited to testifying their personal knowledge of the matter.

Some expert witnesses are hybrid witnesses having both personal knowledge pertaining to the matter at hand relating to their observations and perceptions and also specialized technical knowledge that

American Society of Consulting Arborists

9

they use to formulate opinions. If a witness is intended to be a hybrid, he or she must be disclosed as an expert witness according to Rule 26(a)(2) or the witness’s expert testimony will be excluded.

Musser et ux. v. Gentiva Health Services, f/k/a Olsten Health Services, No. 03-1312, 2004 WL 145335 (7th Cir. Jan. 28, 2004).

So, if a consultant is subpoenaed as a fact witness, only testimony that relates to the witness’s personal knowledge, direct perception, or opinion rationally based on that perception is admissible. That means that opinions regarding standard of care, hypotheticals, and scientific research are inadmissible. While it may seem that an unscrupulous attorney may obtain free (or very inexpensive) expert testimony by skipping designation and subsequently subpoenaing an expert, the testimony would not necessarily be worth much to that attorney because any opinions relying on technical knowledge would be inadmissible. Dragging the consultant into court would be a waste of time for everyone involved.

If a consultant is served with a subpoena to appear as a fact witness, it is advisable to consult a legal advisor regarding the applicable jurisdiction’s procedural rules. Non-party witnesses are permitted to have their own counsel.

Conclusion

Fact witness testimony can only be an individual’s direct knowledge or opinions rationally based on perception. Expert testimony can be an opinion or information based on specialized knowledge, training, and experience. Expert testimony is entitled to special protections, but it is subject to rules of disclosure, timing, and compensation. These rules can vary by jurisdiction in critical ways.

A prudent consultant should seek the advice of a qualified legal advisor.

Arboricultural Consultant volume 52 issue 1 2019

< home

Key Differences Between Expert Witnesses and Fact Witnesses continued

Works Cited ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 96-402 (1996) Cal. Evid. Code § 801 Cal. Gov’t Code § 68093 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993) Easton, Stephen D. Ammunition for the Shoot-Out with the Hired Gun’s Hired Gun: A Proposal for Full Expert Witness Disclosure, 32 Ariz. St. L.J. 465, 478 (2000).

James Komen is a Consulting Arborist in California specializing in risk assessment and tree appraisal. He employs principles of finance and accounting to help clients make informed management decisions for individual trees and tree inventories.

Fed. R. Civ. P. 26 Fed. R. Civ. P. 37 Fed. R. Evid. 602 Fed. R. Evid. 701 Fed. R. Evid. 702 Fed. R. Evid. 703 Kreiter, Maria L. How to Distinguish Lay and Expert Witness Testimony. American Bar Association. 2016.

Accessed January 2018.

Musser et ux. v. Gentiva Health Services, f/k/a Olsten Health Services, No. 03-1312, 2004 WL 145335 (7th Cir. Jan. 28, 2004).

For Consulting Arborists 3rd Ed. This is your resource for knowing what i n f or m a t i on t o include and how to format Consulting Arborist reports. The book encompasses prac t ic e repor t s from students of the ASCA Consulting Academy and a reallife report as submitted by an author to an actual client.

Order your copy at www.asca-consultants.org

Peck v. Messina, 523 So. 2d 1154

American Society of Consulting Arborists

Example Reports

10

Arboricultural Consultant volume 52 issue 1 2019

< home

Member News

ASCA members Dane Buell, RCA #518; Scott Cullen, RCA #348; Allan Fenner (a CTPA director); Steve Knapp; Bear LeVangie; John Moran, RCA #199; Bradley Painter, RCA #634; Jeffrey Perotti, RCA #528; Bill Snyder, RCA #384; Garth Welch, RCA #622; Jim White; and Kevin Wyatt (a CTPA director) attended the Connecticut Tree Protective Association winter meeting in Plantsville, Connecticut in January. CTPA, one of the oldest arborist organizations in the United States, was founded in 1922. Its founding members also founded the National Shade Tree Conference (now ISA) in 1924.

ASCA members Art Brooks; Jim Cadorette; Wayne Cahilly; Russ Carlson, RCA #354; Scott Cullen, RCA #348; Aaron Dickinson, RCA #664; Glenn Gentzke, RCA #485 (an ASCA director); Jon Hickey, RCA #196; Jim Ingram, RCA #294 (an ASCA past president); Steve Knapp; Bear LeVangie; Bill Logan; Fran Reidy; Chris Sandstrom, RCA #314; Mike Sherwood, RCA #524; Bill Snyder, RCA #384; Kevin Wyatt; and John Wickes, RCA #455 (an NYSA director) attended the New York State Arborists–ISA Chapter Annual Conference in Suffern, New York, in January.

John Wickes arranged a breakfast session with executives from the three major tree industry associations: Caitlyn Pollihan, CAE, (ISA); David White, CAE (TCIA); and Thérèse Clemens, CAE (ASCA). All three executives are relatively new to their respected positions, and it was the first time they presented together. Their panel discussions focused on the advantages and benefits of obtaining industry credentials, their respective strategic missions for the next few years, and their shared perspective on the importance of these organizations to find areas in which to collaborate.

In Memoriam: Brian Skinner We are sad to r e p or t t h a t ASCA member Brian Skinner passed away on November 25, 2018.

Brian grew up in Poughkeepsie, New York, graduated from SUNY College of Forestry in 1970, and became a professional arborist for 47 years. He retired from Lewis Tree Service and National Grid as a certified arborist and Registered Consulting Arborist.

During his career, he served the NYS Arborists–ISA Chapter on the board and as an officer for 40 years. He also served on the board and as an officer with the NYS Urban Forestry Council for 18 years. The recipient of numerous association awards, he was most proud of The National Grid Chairmans’ Award, National Grid’s “10,000 Trees and Growing” community tree planting program, and his establishment of the NYS Arborists education booth at the NYS Fair, celebrating 35 years at the fair in 2018.

(Joseph) Brady, Kevin (Julie) Skinner, and Brianne (Juan) Salazar; eight grandchildren; his brother, James (Monie) Skinner; his brother-in-law, Michael Philipbar; and two nieces.

Donations in Brian’s memory can be made to The American Lung Assn. for IPF Research (55th W. Wacker Dr., Suite 1150, Chicago, IL 60601), the Hospice of CNY (990 7th North St., Syracuse, NY 13088), or the Tree Fund (TreeFund.org, Safe Arborists Fund, 552 S. Washington St., Napierville, IL 60541)

Brian leaves his wife of 45 years, Diane; children Melissa (Preston) Ritchie, Tracy

American Society of Consulting Arborists

11

Arboricultural Consultant volume 52 issue 1 2019

< home

Meet the New ASCA Board Members!

Patrick Anderson, RCA #475

Jeffrey Ling, RCA #337

Micah Pace, RCA #607

Charlotte, North Carolina

Fort Wayne, Indiana

Dallas, Texas

Patrick Anderson is an arborist with Rainbow Treecare Scientific Advancements near Charlotte, North Carolina, where he provides plant healthcare protocol training and support for clients nationwide. He conducts field research trials throughout the United States, with emphasis on plant growth regulators and landscape scale management. Patrick frequently gives talks and guest lectures for green industry groups and has authored numerous articles on tree and shrub care.

Patrick has a B.S. in forest science from Penn State University and is an ISA Board-Certified Master Arborist and Municipal Specialist, an ASCA Registered Consulting Arborist, and a North Carolina Licensed Landscape Contractor, as well being ISA Tree Risk Assessment Qualified. He is an associate voting member of the ASC A300 committee and volunteers as a Tree Master with TreesCharlotte.

From Patrick: I’m honored and excited to serve on the ASCA board. This is my first time serving on a governance board whose constituents are geographically so diverse and professionally so accomplished.

In the short term, I’m looking forward to becoming better acquainted with my fellow board members and learning how I can be of best service to the board of directors.

Most importantly I’m looking forward to learning more from our membership, both new and old, in what ways ASCA can better serve them, and helping them grow in our profession of consulting arboriculture.

Jeffrey Ling is the senior consu lting arborist in Indiana and is an ISA Certified Arborist. Jeff coowns TreeMasters, Inc., a comprehensive arbor-care company founded in 1990 and focused on plant health care and woody plant pathology, serving hundreds of private clients and over 45 green industry companies. In 1994, Jeff established and is president of ARBORWISE, LTD., a leading Midwest consulting firm that provides arboricultural and urban forestry information and support services. An ASCA member since 1993, Jeff is a Registered Consulting Arborist and past president of the Indiana Arborist Association, and has served on the ASCA Education Committee, as a peer and business mentor, and as an ASCA conference presenter.

Jeff recently served as the ASCA representative to the Sustainable Urban Forest Coalition (SUFC). He holds a B.A. in chemistry and has taken graduate courses in business administration. Jeff is a father of two and grandfather of five.

From Jeff: I am a 25-year RCA. Over the years, I have not always been in a position professionally to serve, but now I am.

Although I have much to learn, I think my 45 years of business management experience, my nearly 35 years of commercial tree care, and the 25 years of consulting can add value to our group and its future. It is my time to pay it forward. ASCA is now in a strong position, and the board’s goal is, first and foremost, to maintain fiscal strength and brand integrity. I’ ll do the best I can and welcome any interactions with my fellow ASCA’ns.

American Society of Consulting Arborists

12

Micah Pace has been an urban forestry specialist at Preservation Tree Services, Inc. since 2014. He has served as the Dallas regional urban forester with the Texas Forest Service since 2009. Prior to moving to Dallas, he worked for the State of Florida Forest Service for six years, where he served as the South Florida Cooperative Forestry Assistance coordinator.

Micah holds a B.S. in natural resource management from The Ohio State University and an M.S. in forestry from the University of Maine. He is an ISA Certified Arborist, a Professional Urban Forester, and an ASCA Registered Consulting Arborist, as well as being ISA Tree Risk Assessment Qualified. Micah most recently has served ASCA on the editorial review committee for the Arboricultural Consultant.

From Micah: It is my pleasure to serve the ASCA membership. Representing the many professionals across the country that make up ASCA is an honor that I take with great pride and importance. As professionals, we improve the profession of arboriculture. As colleagues, we enhance each other’s knowledge and professional growth. ASCA provides us with the opportunity to do both. I have found the ASCA leadership to be very welcoming and sincere. I look forward to working with the board and staff to add value to the organization wherever possible.

I appreciate the opportunity to serve.

Arboricultural Consultant volume 52 issue 1 2019

< home

Welcome New Members

RCA Embosser and Stamp— Distinguish Yourself

Michael Arat Silverthorne, CO michaelarat@hotmail.com

Morgan Holen Wilsonville, OR morgan.holen@comcast.net

Timothy Armstrong Lancaster, MA timothydarmstrong1@gmail.com

Joe Keefe Houston, TX jkeefe@bartlett.com

Darya Barar Pleasanton, CA darya@hortscience.com

Jen Kettell Natick, MA jen@jenkettell.com

Jeff Beacham Bellevue, ID jeff@sunvalleytree.com

James Kotarski Renton, WA Jdkotarski@gmail.com

Maryellen Bell Pleasanton, CA Mbell@bartlett.com

Mark Mann Austin, TX mark.mann@davey.com

Rachel Bowery St. Catharines, ON rachel@pineridgetree.com

Alexander McCormick Edmonton, AB alex@treelink.ca

Kyle Braun Kirkland, WA kbraun@watershedco.com

Julie McNamara Petaluma, CA jmcnamaramsgis@gmail.com

Brandon Burke Klamath Falls, OR Burke-21@live.com

Jesse Roewer Crystal Lake, IL roewer@gmail.com

Blaine Cooper Prescott, AZ Paramedtattoo@gmail.com

Zenon Ruzycky Calgary, AB zen.ruzycky@gmail.com

Chris Forman Carbondale, CO chris@myaspentree.com

Craig Southwell Vancouver, BC csouthwell@bartlett.com

Haley Galbraith Portland, OR hdgalbraith@yahoo.com

Zachary Vought San Rafael, CA zach@urbanforestryassociates.com

The Registered Consulting Arborist® (RCA)* status represents ASCA's premier level of membership. Official RCA stamps and embossers are available for purchase—use these items to distinguish your work products. *You must be an RCA to order RCA products.

Douglas Gordon-Blackwood Altadena, CA doug649@hotmail.com

New RCAs Daniel Bote, RCA #663 Aaron Dickinson, RCA #664

Kay Sicheneder, RCA #668 Kelly Lewis, RCA #669

Rick Carter, RCA #665 Evin Lambert, RCA #667

Robert Layton, RCA #670 Kristopher Stultz, RCA #671

American Society of Consulting Arborists

13

Arboricultural Consultant volume 52 issue 1 2019

Involved With Community and Urban Forestry?

There is a professional organization waiting for you.

Confidence, competence, and camaraderie.

www.urban-forestry.com

Join the Society of Municipal Arborists Today!

< home President’s Message continued

Based on the work of the EPRTF, several changes to the elections process that are designed to offer greater choice for membership have been approved by the board.

Seeing that these changes are implemented this year in time for the ballot to go out to members in August is my #1 priority. We as a board have committed to making these changes, and we intend to work diligently to see them put in place.

These changes will offer another opportunity for member involvement. Specifically, the board will be looking for more potential candidates who are willing to give their time and energy to serving on the board. While many of us are passionate about ASCA, finding those who are willing and able to be board members has proven difficult in the past. So please consider putting your name in the hat as a potential board member—the nomination process is described on the website.

If you have any questions, please feel free to contact ASCA staff and/or me.

Finally, this year ASCA is rolling out TPAQ, the Tree and Plant Appraisal Qualifications. See page 20 for information on the first TPAQ workshop. We are working with several organizations that are interested in hosting additional TPAQ trainings and will be announcing the exact dates of future events as agreements are finalized. I am very excited to see this qualification rolled out and believe that it will provide much needed training on the use of the of the Guide for Plant Appraisal, 10th edition, and help to provide clarity on the concepts and their application.

I know that ASCA’ns have more in common than not, and it is my sincere hope that we can find and celebrate those commonalities in all of our exchanges. I am committed to this and know that I can count of each of you to do the same.

Looking for Something in a Past Issue of The Consultant?

Accessing past issues of The Arboricultural Consultant is easier than you think. From the home page of the ASCA website, sign into your profile under “My Profile.” Then, simply click on “The Arboricultural Consultant” among the icons displayed on the page.

Once on The Arboricultural Consultant page, you can scroll down and view previous issues along with the articles that appear in each issue. If you are looking for something specific, type a key word in the search field at the top of the page or click one of the “top tags” listed underneath the search field. Your results will include all previous issues that include that particular key word in an article title.

Submit Your CEUs! You must earn 30 CEUs every two years to maintain your ASCA membership. ASCA provides many oppor tunities to earn CEUs— View a full list of approved CEUs. Remember to submit your CEUs as you earn them.

Once you have 30 approved CEUs for the period, additional credits are not required.

Submitting CEUs online is easy: • Log in to the ASCA website.

• Click “Manage Profile.”

• At the top of the page, click the “Enter Your CEUs Now” icon.

• In the Certification/Program dropdown, select the 18–19 cycle.

View step-by-step instructions.

American Society of Consulting Arborists

15

Arboricultural Consultant volume 52 issue 1 2019

< home

Scenes From the ASCA 2018 Annual Conference November 28â&#x20AC;&#x201C;December 1, 2018 San Diego, California

American Society of Consulting Arborists

16

Arboricultural Consultant volume 52 issue 1 2019

< home Scenes From the ASCA 2018 Annual Conference continued

American Society of Consulting Arborists

17

Arboricultural Consultant volume 52 issue 1 2019

< home Scenes From the ASCA 2018 Annual Conference continued

American Society of Consulting Arborists

18

Arboricultural Consultant volume 52 issue 1 2019

< home

Industry Reports From ASCA’s Representatives American National Standards Institute (ANSI) A300 Committee

Council of Tree and Landscape Appraisers (CTLA)

By Richard Gessner, RCA #496

ASCA’s representative to the ASC is Richard Gessner, RCA #496 (2017–2019). T he ASCA alternate representative to ASC is Andrew Mertz, RCA #542 (2017–2019).

The A300 liaison to the ASCA board of directors is Richard Adkins, RCA #573, ASCA president-elect (2019). Current members of the ASCA A300 Advisory Committee (AAC) (2019) include:

By Jim Clark, Ph.D., RCA #357

I invite ASCA members who are using the 10th edition to provide their feedback. I look forward to your questions and comments.

Thanks very much for your support.

For more information, visit www.ascaconsultants.org/page/CTLACommittee.

• Kenneth Knight, RCA #507 • John Martyn, RCA #485 • Anita Schill, RCA #421 • Zeb Haney, RCA #616 For more information, visit www.ascaconsultants.org/page/A300TaskForce.

Sustainable Urban Forest Coalition (SUFC) John Harris, RCA #468, has been selected as the new SUFC representative. We look forward to his reports in future issues of The Consultant.

More about John: John has been involved with the National Urban Forestry Council and projects with American Forests and the Arbor Day Foundation involving urban forestry education. He is currently president of the Florida Urban Forestry Council, which coordinates with the national priorities and programs for Florida’s urban forestry goals and programming. John has provided input for the goals and work of SUFC through discussions with representatives from different member organizations in the past. He continues to be supportive of ASCA as a leading organization in the green industry overall and in urban forestry.

For more information, visit www.ascaconsultants.org/page/SUFCTaskForce.

American Society of Consulting Arborists

19

Arboricultural Consultant volume 52 issue 1 2019

The Grammar Tree

Ad

ve

Phrasal Verbs

rb

Adjective

< home

un

No

We all should know what a verb is. And we know that a phrase is a group of words, usually a small group. So a phrasal verb is a verb that is more than one word.

Many phrasal verbs are also nouns. However, when you make a phrasal verb into a noun, it usually becomes one word, and that is where many people get confused.

Here are some examples of phrasal verbs and their corresponding noun forms:

• I need to set up the exhibit. I don’t like the setup of the room.

• I need to back up my computer. I need to perform a backup on my computer.

• Please take out the trash. Let’s get takeout for dinner.

• The candle will burn out shortly. I have burnout from my stressful job.

• Hand out these papers to the class. Did you get the handout to help you study for the quiz?

n

ou

on Pr

Ve rb

• I need to make up my test today. You are wearing too much makeup.

• I work out for an hour every day. I am really tired from my workout.

• Did you mix up the days for the parties?

It was just an innocent mixup.

One way to remember that the verb is two words and the noun is one is that we usually pause when saying the phrasal verb, but not when saying the noun.

Tree and Plant Appraisal Qualification Training (TPAQ) When:

March 14–15, 2019 8:30 am–4:00 pm daily

Where:

Morris Arboretum’s School of Arboriculture, Upper Gallery, Visitor’s Center 100 E Northwestern Ave Philadelphia, Pennsylvania 19118 United States

Presenter:

Robert Wells, RCA #593, Associate Director, Arboriculture Outreach, Morris Arboretum

Contact: ASCA ASCA@ASCA-consultants.org

(301) 947-0483

Register Today!

Please visit the ASCA Events Calendar for upcoming TPAQ Workshops.

American Society of Consulting Arborists

20

Arboricultural Consultant volume 52 issue 1 2019