There are two classes of experts: consulting experts who will not be testifying at trial and trial experts whose testimony you do intend to rely upon. All documents and oral communications exchanged between counsel and the consulting expert are generally privileged –except in rare instances where the opposing party can show a hardship that justifies allowing the consulting expert’s files to be discovered or that allows the consulting expert to be deposed. That would only happen in a situation where the opposing party could show that there was no other way that he/she could get anyone else to offer an opinion on the same issue–for example, because the evidence was destroyed. In New Jersey, discovery is allowed into the documents and oral communications between the testifying expert and counsel to the extent, in formulating his or her opinion, that the expert relied upon any information exchanged or communicated between them. This distinction is important because counsel’s communications with consulting experts–even those that lead to the development of opinions harmful to the case–are not discoverable. This gives counsel the freedom to be aggressive in speaking with prospective experts so that counsel can find the expert best suited to the case.
There are many factors to consider in hiring an expert. The nature and value of the claim, the factual background of the matter from which the claim arises, and the scope and timing of the work must be considered. The credentials and experience of the expert must also be considered since the fees charged by the expert usually are a direct reflection of those factors. You must also decide whether the expert is going to be a consulting expert or an expert who will be testifying at trial. This is a particularly important consideration given the privilege that attaches to communications between the attorney and the consulting expert.
Some or all construction and design claims may involve extremely complex factual or technical issues. The entire case may rise or fall on the quality of the experts selected to handle the claims in issue. Extraordinary care must therefore be given to the entire process of finding and hiring consulting and testifying experts. The initial expert retained by the client may be an architect or engineer with broad experience in areas of design or construction. As counsel’s investigation continues with the assistance of the consulting expert, it may be necessary to bring in additional experts who have specific expertise in particular areas. The amount in controversy will often have a major impact on this process. If the case is a construction and design defect case involving water infiltration from roofs, windows and siding, and claims relating to improper design of a sea wall, and deficient construction of the fire suppression systems in a large condominium, and the amount in controversy is $5 million, it may make sense to engage an expert with particular expertise in handling just the roofs, windows and siding, a different expert with particular expertise in sea wall design /construction issues and yet another expert with particular expertise in design/construction of the type of fire suppression system involved in the case. Counsel may also wish to hire yet another expert with substantial expertise in cost-estimating to compile the damages report.
As a general matter, it is advisable to make sure that your experts have experience testifying in depositions and at trial. That is a very different experience for most experts. No matter how well educated and experienced an expert may be, it is not unusual for an expert who has never testified before to look tentative, become defensive or combative or otherwise have difficulty under cross -examination by skilled counsel. If the claim is worth bringing, and it is substantial enough for the client to incur the expense of hiring an expert, then it is worth the time and trouble to make sure that, in the interview process, due consideration is given to making sure that the prospective expert has testimonial experience. These considerations all need to be thoroughly reviewed with the client before these decisions are made.