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(A)   Introduction
(B)   The Expert Disqualification Test
(C)   Implications of the Expert Disqualification Test
(D)   An Ounce of Prevention Is Worth a Pound of Cure
(E)   Other Considerations When Retaining an Expert

(A)   Introduction
(B)   Prohibited Contact with an Opponent's Experts
(C)   Consequences of Contacting the Opponent's Expert

(A)   Introduction
(B)   Categories of Experts and Scope of Discovery
(C)   The Proper Form of an Expert Designation
(D)   When Experts Must Be Designated
(E)   Avoiding Unintended Waiver of Applicable Privileges
(F)   Re-designation to Hide Experts
(G)   Keeping Consultants and Experts Apart
(H)   "Exceptional Circumstances" and Consulting-Only Experts
(I)   In Anticipation of Litigation

(A)   Introduction
(B)   Compensating Experts with Contingent Fees
(C)   What Is a Reasonable Fee?
(D)   Paying for the Experts Discovery Efforts

In the past 25 years, the use of experts in commercial litigation has grown dramatically. There are few cases today, regardless of the subject matter, in which all parties have not consulted with or retained at least one expert on some issue in dispute in the litigation. This is surely the case in complex construction litigation where attorneys are often not specifically trained or experienced in the highly technical disciplines of engineering, architecture, scheduling, and other specialized subjects prevalent in construction litigation.

The increased use of experts in litigation has led to a corresponding increase in the number of practical and ethical issues which have arisen and which should be carefully considered by the cautious practitioner when selecting, retaining, and communicating with testifying and consulting experts in construction litigation. This paper will address these issues as they arise at each stage in the relationship between counsel and testifying and consulting experts.

First, this paper will consider the practical and ethical issues that arise in the process of selecting and retaining an expert. At this initial stage, it is critical that the attorney carefully consider what information he or she will share with prospective experts prior to retention to ensure that client confidences are protected. This paper will consider what protection is afforded for communications with experts who are not ultimately retained. The paper will also consider the steps that should be taken in structuring the consulting agreement to ensure that proprietary or confidential information disclosed to the expert will continue to be protected both during and after the litigation.

Further, this paper will consider the ethical and practical issues surrounding inadvertent or purposeful contact with experts who already have consulted with an opposing party. Unwary construction litigators who engage in such conduct may find themselves and/or their experts disqualified from a case.

Later, this paper will look at the law relevant to the scope of discovery concerning expert witnesses. A working knowledge of these laws relevant to the discovery of information provided to, relied upon, and prepared by a party's expert witness, is crucial to ensure that client confidences are protected pursuant to the ethical rules regarding maintenance of confidentiality. It is these laws which should guide the attorney when determining what information to provide to experts and how best to utilize the experts' particular expertise and work product.

Finally, once the expert is retained and the attorney has reached preliminary decisions as to how such expert will be designated and what information will be provided to that expert, the attorney must be sensitive to other issues which may arise before, during, and at the time of trial. Specifically, care must be taken in structuring the fee arrangement with the expert to ensure that it comports with ethical constraints requiring "reasonable" fees. Furthermore, the attorney should ensure that the expert gives his own opinion after a complete review of the facts and does not simply parrot conclusions prepared by the attorney in support of his theory of the case. Inattention in addressing these issues has led to much of the increasing disdain for and pejorative comments concerning professionals whose income is derived primarily from serving as expert witnesses in litigation.

This paper has to touched on the main ethical and practical issues relating to the use of expert witnesses in construction litigation. The matters discussed here are surely not exhaustive and other ethical issues will undoubtedly arise in the future. However, without regard to the types of issues which may arise, attorneys will appropriately and ethically govern themselves in the use of construction experts if they stop to consider the important service such experts perform and abide by the ethical and procedural rules discussed herein.

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