From Tree to Testimony: Mastering
Effective Witnessing - Part 1
By Monika D. Buczko, RCA #785, BCMA, CTSP
The Role of the Expert Witness in Arboriculture
Expert witnessing is a critical aspect of professional practice within arboriculture, particularly for consulting arborists who provide technical opinions in legal or dispute resolution settings. While not every case proceeds to court—whether before a judge or a jury—every consulting arborist should operate under the assumption that their work may ultimately be scrutinized in a legal forum. This mindset ensures the highest standards of accuracy, objectivity, and professionalism from the outset.
Once a report has been submitted, it becomes a matter of record; revising conclusions or altering opinions after the fact is rarely possible and can severely undermine credibility. Therefore, each report must be meticulously prepared, thoroughly supported by evidence, and written with the clarity and precision necessary for potential legal examination.
The insights presented here draw from my own experience as an expert witness, combined with lessons learned from colleagues in the field. Together, they underscore the importance of diligence, transparency, and professional integrity when representing arboricultural expertise in a legal context.
The Curriculum Vitae: Establishing Credibility in Testimony
Every expert testimony begins with a review of the expert’s curriculum vitae (CV)—and this is the moment to confidently demonstrate your qualifications. Attorneys and opposing counsel may scrutinize every aspect of your education, certifications, and professional experience to establish your credibility before the court. This is not the time for modesty; it is the time to clearly and accurately present the depth and breadth of your expertise.
An expert witness must be thoroughly familiar with every credential listed on their CV—understanding the requirements for each certification, how it was obtained, and what is required to maintain it. Keeping your CV current is essential. Even a seemingly minor oversight—such as failing to include a “last revised” date—can undermine confidence in the accuracy of your information. Many arboricultural professionals accumulate numerous credentials over the years: certifications, licenses, publications, committee roles, or board memberships. Because legal proceedings can take years to reach trial, a CV that reflects current qualifications and membership status can make a substantial difference in establishing credibility.
Dates matter. Memberships may lapse, certifications may require renewal, and organizations occasionally change names or governing bodies. Experts should review their CVs at least twice a year, and certainly before any deposition, trial, or when providing materials to clients or attorneys.
Equally important is accuracy. Exaggerating or misrepresenting credentials can have serious consequences. Any inconsistency discovered during testimony can not only damage an expert’s professional reputation but may also result in exclusion from the case. Precision, transparency, and integrity in your CV are non-negotiable components of professional credibility.
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The Importance of Timelines and Budgets in Expert Casework
When accepting an expert witness assignment, timelines are one of the most critical factors to consider. A wellprepared and defensible opinion requires sufficient time for thorough research, site investigation, analysis, and report preparation. Without an appropriate schedule, even the most qualified expert risks compromising the quality and credibility of their work.
From experience, I have learned that one of the very first questions to ask an attorney is, “What is the deadline for the report? ” This single question often determines whether or not a case can be responsibly accepted. On several occasions, after initial discussions and agreeing on terms, I discovered that the attorney needed a complete review of materials, site inspection, and final report within a matter of days—sometimes by the end of the same week. In one instance, I did accept a case on a Monday required completion by Friday. Although that case was ultimately successful for the retaining attorney, such outcomes are the exception, not the rule.
Developing a realistic project timeline is essential. Each phase—document review, site visit, data analysis, and report writing—takes time and concentration. Compressing these steps increases the likelihood of omissions, calculation errors (especially in appraisal cases), or incomplete documentation from the field. Working late into the night for days on end is a recipe for fatigue and mistakes, not professional excellence.
A disciplined approach to scheduling not only protects the expert’s credibility but also ensures that the opinions rendered are well-founded, accurate, and defensible under scrutiny. It is always better to decline a case due to unrealistic time constraints than to risk delivering a substandard report.
The Urgency of Timely Site Inspections
Once an expert has been retained, scheduling the site inspection should be an immediate priority. Experience has taught me that conducting the inspection as early as possible is often critical to the success of the case. In many instances, consulting arborists are brought in months—or even years—after an incident has occurred, which can make evidence collection challenging. However, in some cases, the incident may have taken place only a week or two prior to the attorney’s call. Regardless of timing, I always emphasize to retaining counsel the importance of arranging the site visit without delay.
Trees and landscapes are dynamic, living systems that change rapidly due to weather, human activity, or natural processes. Waiting too long can result in the loss of crucial evidence. On several occasions, I’ve completed a site inspection just in time—only to learn that the tree in question was removed the very next day, along with all associated debris. Had the inspection been delayed, valuable physical evidence would have been lost.
Failing to properly document the site—through detailed photographs, videos, and field notes—is a serious professional oversight. I have reviewed reports in which experts relied solely on satellite imagery, with no on-site documentation, leaving major gaps in the evidence record. Aerial images can be useful supplements, but they are no substitute for firsthand observation and comprehensive photographic documentation of the site, the trees, and the surrounding conditions.
Prompt, thorough site inspections not only preserve the integrity of the evidence but also strengthen the expert’s credibility and the defensibility of their opinions in court.
The Importance of Comprehensive Record Review
After being retained, one of the next essential steps is to request all records and documents relevant to the case. A detailed conversation with the attorney at this stage is crucial. It helps ensure they understand what types of documents and evidence an expert needs to properly evaluate the matter—such as photographs, correspondence, maintenance records, site plans, prior reports, or depositions. Attorneys may not always realize which materials are relevant from an arboricultural or technical standpoint, so clear communication is key.
I always advise requesting all documents the attorney is permitted to share. Even if some materials appear tangential, they may contain small but significant details that influence your conclusions. Reviewing every available document is part of due diligence. It is not uncommon to spend hours reading through a deposition transcript or inspection record only to uncover one single fact that proves pivotal to your analysis and ultimate opinion. Conversely, overlooking a piece of information can result in unnecessary challenges during testimony or raise doubts about the completeness of your report.
Every document reviewed should be listed in your report—typically in a section titled “Documents and Materials Reviewed.” This record serves as both a professional courtesy and a safeguard. If, during testimony, you are questioned about a document that was not provided or reviewed, you can confidently refer to your report to clarify that it was not among the materials you received.
Meticulous documentation and transparent record-keeping not only strengthen your credibility as an expert witness but also demonstrate the thoroughness and integrity of your professional process.
Understanding the Language of Expert Opinions
As expert witnesses, we provide opinions and conclusions grounded in our findings, research, education, and professional experience. However, it’s important to acknowledge that absolute certainty is rarely possible. Many experts use the phrase “ in my opinion, within a reasonable degree of professional certainty ” when expressing their conclusions. Yet, in speaking with colleagues, I’ve discovered that not everyone fully understands what this phrase actually means—something that can become painfully evident under cross-examination.
Before including such language in a report or testimony, ensure you understand it completely. The phrase “within a reasonable degree of professional certainty ” essentially means that the expert believes their opinion is more likely correct than not—that is, it reflects a probability of accuracy greater than 50%. It acknowledges that while an opinion is based on sound professional reasoning, it may still rely on incomplete data, retrospective observations, or information provided by others.
Experts should also be careful in their choice of words. Avoid using absolute terms such as all, none, always, or never, as they imply a level of certainty that is rarely achievable in complex arboricultural cases. Overstatements can quickly undermine credibility if opposing counsel exposes even one exception. It is entirely acceptable to acknowledge uncertainty—so long as it is clearly stated and properly qualified in your report. If any assumptions or speculative elements are present in your analysis, identify them transparently. This level of honesty enhances, rather than diminishes, your professional integrity.
Equally important is avoiding the misuse of legal terminology in expert reports. Using legal phrases or drawing legal conclusions can be interpreted as offering legal advice—something outside the expert’s role and qualifications. While arborists may gain familiarity with legal language through experience, it is best to express opinions using clear, technical, and non-legal terms. This approach not only keeps the report within the bounds of professional expertise but also makes it more accessible and defensible in court.
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Maintaining Integrity and Ownership of Your Report
One of the most common—and potentially serious—mistakes an expert can make occurs when a draft report is shared with the retaining attorney for review and feedback. While it is entirely appropriate for an attorney to check for factual accuracy, consistency with case documents, or clarity of presentation, experts must be extremely cautious about allowing any edits that alter the substance of their findings or opinions.
Attorneys are advocates for their clients and naturally want to present the strongest possible case. However, even a single word change suggested by counsel can subtly—but significantly—shift the meaning of an expert’s opinion. An expert’s credibility depends on independence and objectivity. Once that independence is compromised, the integrity of the entire report—and the expert’s reputation—can come into question.
Experts must remember: we do not win cases. I’ve heard many arborists proudly say how many cases they’ve “won,” but that mindset misunderstands our professional role. Expert witnesses are not advocates; we are impartial providers of technical analysis and opinion. We don’t receive trophies or prizes when a case is successful—our “reward” is in upholding the integrity of our profession and the accuracy of our work.
If an attorney suggests changes to your report, discuss those suggestions openly. They may stem from a misunderstanding or from their desire for clarification rather than alteration. However, never allow an attorney—or anyone else—to directly edit or rewrite your report. Any legitimate revisions should be made by you, documented, and issued as a formal addendum if necessary. All draft versions should be retained and dated to maintain transparency and protect against future disputes over authorship or content.
Ultimately, your report is your professional work product. It reflects your expertise, ethics, and credibility. Protect it accordingly.
When
the Evidence Isn’t Enough
At times, an expert may find that there is simply insufficient data to form a reliable opinion or conclusion. This situation can be uncomfortable, especially when there is pressure—explicit or implied—to produce a report regardless. In such cases, experts must resist the temptation to fill in gaps with speculation or vague statements, and they must never “embellish” findings to satisfy a client or attorney.
Honesty and transparency are non-negotiable. My personal practice is to contact the retaining attorney before drafting any report—but only after I have thoroughly reviewed all provided documents, conducted the site inspection, and completed any necessary research. At that point, I clearly explain my findings and the basis for them. If the available information is too limited to support a defensible opinion, I state so directly and allow the attorney to decide whether they wish to pay me to uncover more information and proceed with a formal report.
There have been several instances where my preliminary findings did not support the retaining attorney’s client’s position, and as a result, no report was written. That is perfectly acceptable—and, in fact, the mark of professional integrity. Our role as expert witnesses is not to advocate for a particular outcome, but to investigate, analyze, and report the facts as they exist. Sometimes that means the evidence simply does not lead to the conclusion the client hopes for—and that is part of doing the job ethically and correctly.
Professionalism When Addressing Opposing Experts
Another common mistake made by expert witnesses—sometimes at the urging of attorneys—is criticizing or discrediting the opposing expert in an unprofessional manner. I have been asked on occasion to include in my report statements about how “wrong” or “poorly written” the opposing expert’s opinions are. This is never appropriate. An expert’s role is to present their own analysis objectively, not to attack another professional’s credibility.
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It is entirely acceptable—and sometimes necessary—to state that you disagree with another expert’s findings or conclusions. However, any disagreement must be supported by verifiable data, sound reasoning, and relevant professional experience. The proper approach is to explain why you reached a different conclusion, not to demean or disparage the other expert. For example, a respectful and defensible phrasing would be: “In my opinion, I disagree with the conclusions presented by [opposing expert], based on my education, experience, and analysis of the available evidence.” And then proceed to elaborate on why.
This phrasing maintains professionalism while clearly distinguishing your viewpoint. Remember that a strong opinion does not automatically make the opposing expert “wrong.” They may have formed their conclusions from different data, timing, or experience. The goal is not to prove them incompetent, but to present your opinion confidently and ethically, grounded in your own expertise.
Professional respect, even in disagreement, enhances your credibility in the eyes of the court and reinforces your reputation as an impartial, reliable expert.
Communication: The Foundation of a Successful Assignment
Clear and consistent communication with the retaining attorney is one of the most critical aspects of any expert witness assignment. Before beginning work, make sure you fully understand the key issues in the case and confirm that your scope of work aligns with those issues. This step is directly tied to the availability of sufficient time and information to produce a complete and defensible report.
I have reviewed reports—and even encountered a few cases firsthand—where opposing experts failed to address the central issue of the dispute. Such oversights can lead to flawed assumptions, inaccurate conclusions, and reports that ultimately serve little or no purpose in litigation. If any aspect of a case is unclear, do not hesitate to speak directly with the attorney. A short, focused conversation early in the process is far more efficient than spending hours or days developing a report that does not meet the attorney’s needs or address the core questions of the case.
Missing key concerns not only weakens your professional credibility but can also lead to frustration for the retaining attorney—and, in some cases, jeopardize payment for your work product. Maintaining open lines of communication ensures that both expert and attorney are working toward the same objectives, resulting in a more accurate, relevant, and professionally defensible opinion.
Own Your Work: Avoid Passive Voice
As we learn in ASCA Academy training, using passive voice in reports can create imprecision and ambiguity— and in the courtroom, ambiguity can quickly lead to unnecessary questioning and potential discrediting of your expertise. When describing your work, always clearly state your actions. For example: if you conducted a site inspection, say that you conducted it; if you collected samples, state that you collected them.
Passive constructions—such as “samples were taken” or “the site was inspected”—can inadvertently imply that someone else performed the work, or that you are concealing information. Both interpretations can undermine the credibility of your report. Remember, the report is your professional product, reflecting your investigation, research, and analysis. Clearly stating your role and actions demonstrates accountability, ownership, and the integrity of your findings.
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Trial Preparation: Organization and Mastery of Your Report
Before attending a trial, always consult with your retaining attorney about what materials you should bring. In some cases, you may be instructed to bring nothing; in others, you may be asked to bring everything— including site visit notes, research documentation, invoices, and other supporting materials. I recommend preparing a well-organized binder with clearly labeled tabs separating each type of document. Organization not only makes a positive impression but also demonstrates transparency and professionalism.
Equally important is knowing your report inside and out. Take sufficient time before trial to thoroughly review and internalize your findings. I have encountered a variety of scenarios: in one case, I testified without having my report in front of me, in another, I testified in a state that does not require reports at all. Regardless of the circumstances, preparation is key.
During questioning, take your time to listen, understand, and organize your response before answering. It is perfectly acceptable to pause for a second or two to gather your thoughts. Never answer a question you do not understand—ask for clarification or request that it be rephrased. Avoid providing unnecessary elaboration, as it can invite additional questions and increase the risk of exposing gaps in your knowledge.
Finally, avoid shuffling through your report while being questioned. Doing so can appear unprofessional and give the impression that you did not write the report yourself. Confidence, clarity, and careful preparation are the hallmarks of an effective expert witness.
Conclusion: Learning and Growing as an Expert Witness
Expert witnessing can be both fascinating and challenging. It requires diligence, attention to detail, and a commitment to ethical practice. While no one is perfect and minor mistakes are inevitable, major errors can have serious consequences, potentially jeopardizing an expert’s credibility and career.
As in all areas of life, learning from your own mistakes is essential, but in the world of expert witnessing, learning from the mistakes of others can be even more valuable. Observing and understanding the pitfalls experienced by colleagues allows new and seasoned experts alike to refine their approach, strengthen their reports, and maintain the integrity and professionalism that the role demands.
By combining careful preparation, ethical rigor, and ongoing learning, arborists can provide accurate, defensible opinions while upholding the highest standards of the profession.
