When counsel or a carrier retains a construction expert for a dispute, one of the first questions to settle is which role the expert will play. A consulting expert helps the legal team understand the building, the schedule or the cost and is not expected to testify. A testifying expert forms opinions that will be disclosed to the other side and defended under oath.
The site walk can look identical either way. What changes is how the work is scoped, what is put in writing, how drafts and communications are handled and what the finished work product looks like. That is why the role should be settled before the first site visit, not after it.
What the Client Should Decide Up Front
PCC recommends that the retaining party settle a short list of points before the file is opened. Counsel makes the legal calls. The expert’s job is to make sure the engineering and construction work is set up to match.
- The role. Consulting, testifying or consulting now with a decision on designation later. If it is the last of these, PCC recommends planning the file as if a designation may come.
- Who retains the expert. Counsel decides how the retention is structured and whether the expert is engaged through the law firm.
- The questions. What caused the leak, whether the framing matches the approved drawings, what drove the delay, what the repair should cost. A defined question keeps the investigation and any later opinion inside the expert’s field.
- The deliverable. Verbal briefings, a memo or a signed report. A consulting engagement rarely needs a report. In federal court a retained testifying expert must provide a signed written report unless the parties agree or the court orders otherwise. State rules vary and counsel will say what applies.
- The communication channel. Who the expert talks to, whether the expert can speak with the owner’s or contractor’s staff directly and how documents reach the expert.
- Site access and testing. Whether destructive testing is allowed, who needs notice and whether the other side should attend.
The Federal Rule in Brief
Under the Federal Rules of Civil Procedure, a retained testifying expert’s disclosure must be accompanied by a written report prepared and signed by the expert, unless the parties stipulate or the court orders otherwise (Rule 26(a)(2)(B)). Drafts of that report are protected (Rule 26(b)(4)(B)). Communications between the attorney and a reporting expert are protected too, except those that relate to compensation, identify facts or data the attorney provided that the expert considered or identify assumptions the attorney provided that the expert relied on (Rule 26(b)(4)(C)). For an expert retained in anticipation of litigation who is not expected to testify, the other side generally cannot use interrogatories or a deposition to discover that expert’s facts or opinions without a showing of exceptional circumstances (Rule 26(b)(4)(D)). That is a limit with exceptions, not a blanket shield.
State rules differ. Counsel confirms which rules apply and how.
What PCC Recommends for a Consulting Engagement
A consulting engagement is about helping the legal team understand the building. The expert should look broadly, test more than one theory of what went wrong and tell counsel early where the weak points are, including the ones that hurt the client’s position. That candor is the value of the role.
Most of the work product is conversation: briefings by phone or in meetings, markups of the documents counsel sends and a written memo only when counsel asks for one. Views should stay provisional until the investigation supports them.
What should not change is the field file. PCC recommends keeping site notes, photographs, measurements and sample records to the same standard as a testifying engagement. Consulting is not a reason to keep a thin file. Roles can also change as a case develops.
What PCC Recommends for a Testifying Engagement
On a testifying engagement, PCC recommends assuming that everything in the file outside the protected categories will be read by the other side and questioned in deposition. The work should be organized around that.
- Scope in writing. The questions the expert has been asked to answer should be written down at the start. Opinions stay inside that scope and inside the disciplines of the person who will sign the report.
- Site notes and photographs. Field notes should be written on site, dated and signed. Each photograph should be logged with date, location, direction and what it shows. Measurements should record the instrument used. Samples and removed materials should carry a chain-of-custody record.
- A log of what the expert received. Keep an index of every document, drawing and data set provided, with its source and date received. Communications that identify facts or data counsel provided and the expert considered are not protected, so the index should be complete.
- Assumptions stated openly. If counsel asks the expert to assume something, such as a date of first leak or the scope a subcontractor actually installed, the report should say so and show how the opinion depends on it.
- Drafts written by the expert. Drafts are working documents. Counsel can comment on clarity and organization. The opinions, the analysis and the words should belong to the expert who signs.
- Focused communications. Keep emails short and factual. Anything about fees, facts provided or assumptions requested should be written as if the other side will see it.
- A report that can be defended line by line. The report should state each opinion, its basis, the documents and site data considered, the testing performed, what was not tested and the limits of the investigation. It should be signed by the person who did the work and who will testify to it.
How the Work Product Differs
- Form. Consulting: briefings, markups and memos as counsel directs. Testifying: in federal court, a signed written report; state rules vary.
- Tone. Consulting: exploratory and candid about competing theories. Testifying: final opinions the expert will defend under oath.
- Scope. Consulting: can widen as questions come up. Testifying: fixed questions agreed at the start and changed in writing.
- Field file. The same standard either way.
When the Role Changes
Sometimes a consultant is later designated to testify. Designation changes what is discoverable, so counsel should make that decision deliberately rather than let it happen by default. How it affects earlier consulting work is a question for counsel under the rules of the forum.
The expert’s part is practical. PCC recommends keeping the field file clean from the first day, keeping consulting-phase work organized by date and telling counsel early if anything in the consulting work would complicate a later designation. Some legal teams keep the consulting expert and the testifying expert separate from the start. That is counsel’s call.
PCC is a construction forensics and construction management firm, not a law firm. This article describes the practices PCC recommends. Rely on counsel for how any rule applies to a particular case.
This article is a general informational overview, not legal advice and does not create an attorney-client or expert-client relationship.
