Via Walter Olson at Overlawyered, this story from the London Independent, a story that brings pain to my already at-risk chest. Trees, nearly 40,000 of them, some 100 years old, felled in London because of . . . (gasp) lawyers. Well, there had to be a reason that Walter took note of the story.
I love trees. Ask Bennett and he’ll tell you. I’ve got about 5 acres of woods on my property. Lots and lots of trees. I’ve said it before and I’ll say it again. I am a tree-hugger, and proud of it.
So when I saw that London lawyers were cutting down trees, I was aghast and had to read the story for myself.
Yet there is growing evidence that healthy mature trees are being felled by risk-averse insurers and councils because of the mere suspicion that they may affect neighbouring properties with subsidence, or fall on people.
In the past five years, London councils alone have chopped down almost 40,000 street trees, including some more than 100 years old. Some were aged, diseased or dying, but 40 per cent were removed because of insurance claims; yet a report commissioned by the London Assembly said that only 1 per cent of tree-removals were justified.
Wait a second. I had the picture of guys in wigs and black robes carrying huge axes and cutting away at any tree in their path. As it turns out, the story is just a wee bit different.
There are no London barristers in their bespoke suits cutting down trees. There are London politicians cutting down trees. Why? Because it’s easier to butcher trees wholesale than use one’s head and understand problems and solutions. It’s always easier to blame lawyers for making you do something stupid than taking responsibility for being lazy and taking the easy way out.
Trees are living. Trees grow. They age. They need care. Trees need to be trimmed from time to time to keep old, dead limbs from falling and hitting people on the noggin. This isn’t a tough concept, but it’s work to pay attention to the needs of trees and care for them. Sometimes, especially in city venues, trees need more care than they would in a field were they stand proud and alone. If they are hungry, they need to be fed. If they are thirsty, they need a drink. And if they are inches away from a building (and one should ask who was the genius who planted the tree next to the building or built the building so close to the tree), they need particular attention.
But don’t blame the lawyers. The lawyers didn’t tell you to kill all the trees. The lawyers expect that you take care of them so they don’t fall on their clients. Regardless of the lawyers (and this is the point), the trees need to be loved and cared for.
The fact that those who make brilliant decisions on behalf of the public have chosen not to take an individualized look at trees to address their needs, but would rather chop them all down wholesale, is not the lawyers’ fault. There is an action (i.e., dead limb falls on nice person), and a reaction (trim dead limbs) and an over-reaction (cut down all trees on the face of the earth).
If you don’t like the way mass-clearing of trees is happening, and I don’t, then blame the idiots who would rather take the simpleton’s route of getting rid of all the trees and blaming it on lawyers than react properly and appropriately be addressing the particular needs of the trees.
Too much work to look at each tree individually, you say? Then you end up with an earth barren of trees. But then it’s your fault that you don’t want to put in the effort to do it right, not the lawyers. Walter, you can’t blame the lawyers because over-reacting is easier than reacting.
If there’s a diseased tree, a dangerous tree, then address it or, in absolutely necessary, cut it down. There are times this is necessary. But don’t butcher trees because it’s easier than thinking. What a horrible waste.
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You make a good point. One missing piece of the puzzle here is whether the landowners’ liability calculations arise from a correct weighting of the risk to third parties, or instead reflect what’s been called overdeterrence (e.g., a branch fall that results in a $10,000 damage award might occasion a good deal more than $10,000 in costs for the party held legally responsible). Imperfections in the insurance mechanism are another possibility: for example, insurers might be able to check adequately whether trees are chopped down, but not whether trimming is done well season after season, so they might consider only the former in risk rating. If so, it should remind us that liability insurance, contrary to some hopes for it, is neither smooth or costless as a method of broadly spreading social risk.
And that’s what I mean by over-reaction. The antidote to over-litigation is ordinary care. If people make ordinary decisions purely as a response to potentional imperfect insurance risk, then they are handing their lives away. People to need to use their heads, on both sides of the equation. Exercise ordinary care and liability is not an issue. Ignore caring for your trees (or anything else) and expect liability. Scorched earth isn’t a sound reaction to liability for failure to exercise ordinary care. And it’s bad for the trees too.
“There are no London barristers in their bespoke suits cutting down trees. There are London politicians cutting down trees.”
Uh, would they – as in the US – perhaps be largely barristers? And if not, surely they consult such when writing laws? And in this particular case, was the equivalent of ‘Parks and Recreation’ not consultated?
OK, forget the consulting parts above – we ARE talking about politicians, after all.
Exactly.
Sorry but tosh. It is Lawyers fault. (and Judges fault and Governments fault….etc, but lets concentrate on Lawyers).. If a client comes to you with a dent in his noggin, its your job to represent your client as effectively as you can and to try to show the council was responsible for the care of the tree and was unreasonable in its care. The net outcome is that, reasonable care or not, the council get sued. Now look at it from the councils view. They get sued, with associated costs, whether they put large sums of money into care of the trees or not. It does not matter if they are found guilty or not, they are still sued and have to spend (our) money defending the case. They also have to spend money to show the did more that just being reasonable to avoid leaving wriggle room for a lawyer to argue they were unreasonable. So what are they to do? Well it is simple economics. Add up how much it is (ongoing year after year) to look after the trees to a level that provides a cast iron defense if sued so you don’t have to pay damages, and add up the cost of being sued anyway. Set that against the cost of taking down the tree. Simple economics tells you that taking down the tree is the answer. Not overreaching overreaction, but simple economics.
If lawyers were all reasonable men who look at a client’s case and decline it because the council was reasonable in their care of their tree, then no-one gets sued except if the council were unreasonable in their care, (and Councils could then take the view that they could look after the tree for a reasonable cost). However which lawyer has ever done that? Well, its not your job, is it? Your job is to look after to Clients interests, but you are still part of the process that results it happening, and you cannot absolve yourself from that moral responsibility. You may not have the axe in your hand, but is is your fault.
Don’t be sorry. You’ve inadvertantly proven my point in two separate ways.
First, the councils reflect two separate interests on the part of the public, the desire to maintain trees and the desire to avoid unnecessary expenses. If they maintain trees properly, they can eliminate much of their liability. But there is still a chance that they will be sued even though they have done nothing wrong.
You argue that if they are sued even though they have done nothing wrong, they must still defend and, you presume, they may be “found guilty.” But if they are found liable by a jury, and they have defended (using lawyers), then they must be wrong or presumably they would not be liable. The system has worked, as a jury has decided that the councils’ tree maintenance failed in that instance.
Thus, if they perform their function correctly in the first place, and satisfy their duty to the public to properly maintain trees, everyone wins. To assume that a finding of liability would be wrong is to believe that government lawyers are incompetent, juries made up of the public (people just like you) are corrupt and plaintiff’s lawyers are brilliant but evil. If that’s true, then government is still wrong and needs to find better lawyers, even though the jury reflects the will of the public and delivers a verdict that reflects the government’s competence, whether in maintaining trees or maintaining a corrupt jury system. Either way, government has failed the people.
Second, this is London, which has a “loser pays” system, which tort reformers in the U.S. believe would cure many ills of the system by stopping people from bringing “frivolous” suits. Yet, as this story shows, it hasn’t stopped the councils’ overreaction to perceived liability. Thus, the “loser pays” system won’t help and should be abandoned.