It's Never Just About the Trees: Empowering Clients to Resolve Tree and Neighbor Disputes Collaboratively
| Publication year | 2018 |
| Author | Barri Kaplan Bonapart |
Barri Kaplan Bonapart
Practicing law for over 32 years, Barri Kaplan Bonapart is nationally recognized as a tree and neighbor law specialist. A graduate of Boalt Hall, Ms. Bonapart practiced complex commercial litigation before opening Bonapart & Associates in 1997. She authored Understanding Tree Law: A Handbook for Practitioners (2014), and speaks to various groups including attorneys, mediators, arborists, and appraisers.
Is there any area of law more contentious than neighbor disputes? The answer is, yes, neighbor disputes about trees! Why is that? What is it that otherwise intelligent, levelheaded, clear-thinking, individuals verge on the criminally insane, harboring malicious or even homicidal thoughts, when it comes to disagreements over trees? Even family law practitioners who deal with what would seem to be the most acrimonious and contentious of issues will admit that divorce law can pale by comparison to the Hatfield and McCoy-like world of tree law. At least in family law, they remind us, one party usually moves away.
This article explores tips and strategies to help clients resolve their matters by identifying, understanding, and defusing the psychological underpinnings that often plague these disputes. Warning: there will be no discussion of the black letter law here. The laws and precedent pertaining to tree disputes are already available to practitioners. Instead, these next few pages offer a unique approach toward problem solving, starting with the proposition that attorneys are, first and foremost, "counselors at law." This socially responsible philosophy reminds us that law, like medicine, can and should be a healing profession.
As lawyers, we are very good at analyzing problems and creating road maps toward solutions. We tend to be linear thinkers. When our clients come to us for help, we often start with wanting to know a chronology of events. Then, using the same formula reminiscent of a bar exam essay, once we have the story, we identify what legal issues may be involved, what rules might apply, how the application of those rules will likely play out, and voila—the likely outcome and conclusion to our client's dilemma magically appears.
This approach, while useful in certain contexts, has little utility in the context of tree/neighbor disputes. Clients come to us saying, "I want to know what the law says," or "I just want to know my rights," or "Do I have a case?" What they are really trying to communicate is, "I want help solving this problem," or "I would like to stop feeling bad in my own home," or "I want to stop feeling so helpless in my dealings with this other person."
Knowing the message behind the words is not only helpful in doing a good job for your client; it is indispensable. Anyone with payment of a filing fee and a cover sheet can file a lawsuit. It takes a skilled lawyer to help a client navigate through the rocky shoals of interpersonal conflict to resolve their problems without litigation.
Why, you may ask, should the avoidance of litigation by coaching your clients to resolve their own problems even be considered a goal, much less the desired goal in these situations? Old-school principles dictate that if the sharpest arrow in your quiver is a judicial determination, well then fire away—especially if you have calculated the odds and feel confident that you can "win." After all, is that not what we are here for? To be our clients' urban warrior leading them on to victory? And then there is the perceived self-serving dilemma: "If I empower my clients to resolve their own problems, how can I earn a living?"
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On the other hand, if we are of the belief that the law can (and should) be a healing profession much like medicine used to be, then putting the quiver down and looking for new tools and devices to help clients solve their problems may be the better way—not just for the profession, but for our clients, their neighbors, their communities, and society in general (a little more on that later in this article).
The answer is multi-dimensional. Although you might prevail in a lawsuit, you likely will have left behind a trail of destruction. It is doubtful that you will have improved the relationship between your client and her neighbor. Indeed, you may have set up a pattern of future retaliatory actions that will never end until one of them moves away—or is carried out on a stretcher. While you may have increased the balance in your children's college accounts, you will have depleted your client's funds. And your client, who could otherwise have been a source of referral or repeat business for you, now wants nothing do with you. She may even be withholding final payment, convinced that the "cost of winning" was way too high and that you did not properly warn her of what doing battle would mean from a financial, as well as emotional, standpoint. And then there is that scathing Yelp review.
This brings us back to the main question. If it is truly "never just about the trees," then what is it really about? How are we as professionals best equipped to help our clients solve their disputes? How do we uncover the dynamics creating the problem? Once we have a better handle on the emotional component underlying the dispute, how does that knowledge assist us in advising our clients?
To a certain extent, the answers to these questions are individual to the dispute and the disputants involved in each matter. However, after handling hundreds of tree disputes, certain patterns have begun to emerge. The important principles to keep in mind are: (1) each side has its part to play in the dispute; (2) it only takes one side to disengage for the dynamics to change; (3) both sides make assumptions about the motives of the other side that, quite often, are incorrect; and (4) it is rarely, if ever, personal. We will discuss these principles separately.
A. Each Side Has Its Part to PlayA client comes into your office distraught and at the end of his rope trying to deal with what he describes as his "neighbor from hell" (we'll call her, "NFH"). He then describes a litany of abuses and perceived slights. NFH puts her trash cans in front of his gate. She parks her car in front of his house in "his" parking spot. Her dog is constantly leaving "gifts" in which he steps when getting the morning paper. Perhaps the worst offense is that she has planted a row of fast-growing, non-native evergreens right up against the fence, which are now obstructing his views and blocking his light. The roots are lifting up his patio and are coming dangerously close to his foundation. The same trees are also messy as all heck, dumping loads of detritus all over his patio furniture and in his pool, requiring constant clean up and maintenance. Your client is also concerned that the limbs sometimes break off and fall, coming dangerously close to his children's play area.
Your client tells you all efforts to have a normal "neighborly" discussion about the problem have fallen on deaf ears. Every attempt to raise the subject results in not just a refusal to discuss collaborative options, but a hurtling of insults and epithets. Notes go unanswered. Phone calls are not returned. E-mails are blocked. This client, who also happens to be an attorney, has gotten so frustrated that he admits with a hint of embarrassment that he has installed cameras and floodlights, aiming them at the NFH's house, making sure to have the lights on a timer so they will blaze into her bedroom window all night long. Can you help him?
Based on the narrative, it sounds as though he truly is living next to a problem individual who needs to be taught a lesson for all of this harassing and seemingly spiteful behavior. Hearing it from his perspective, you might assume that this conflict is all one-sided (except for the floodlight part) and he is just an innocent injured party. Is this a safe assumption?
Consider the possibility that there may be something else at work. Perhaps your client's neighbor has already contacted an attorney because she feels wronged by her neighbor who, by the way, she knows is an attorney and is likely setting her up for a land-grab or lawsuit. In her intake (we will call her, "Samantha"), she tells her attorney that ever since that lawyer moved in next door (we will call him, "Joe"), Samantha has been constantly assaulted with unreasonable requests, demands, and not-so-veiled threats.
It all started when Joe cut down a hedge that had grown between the properties for years prior to his arrival without so much as a mention, much less a neighborly agreement. This created a gaping hole in the privacy screen that was perfect for shielding Samantha's teenage daughter's bedroom from "peeping toms." Indeed, every so often Samantha would see Joe standing in that side of the yard looking over the fence as if he were trying to peer into her daughter's bedroom. In order to try and remedy the problem, Samantha planted a row of fast-growing evergreens along the boundary.
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No sooner had she done so when Joe started ranting about his "view" and "sunlight," which appeared to be flimsy excuses for his otherwise seemingly deviant behavior. After all, Samantha tells the lawyer, she knows that there is no "right" to a view in California, and that this conniving lawyer was just trying to trick her with legal threats.
Instead of calling the police and/or getting a restraining order, which all of her friends were telling her to do, Samantha tells the lawyer she showed great restraint by just trying to ignore Joe's behavior by not answering his increasingly angry letters, e-mails, and phone calls. However, now the problems have escalated to a point where Samantha feels she cannot even take out the garbage or park her car on the street without being given the "evil eye" by Joe, and it is starting to creep her...
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