Businesses and individuals often need to retain a consultant. Sometimes one’s own property may require an investigation or perhaps an asset that was sold or built requires review by a professional. How does one select and retain this consultant? Miller Morton has a few suggestions.

Is this a problem that could lead to litigation? This is an important first question, because it will control how to retain the expert and will be instrumental in the selection of the consultant. If the matter is highly unlikely to result in litigation, then one can retain the expert directly and select the expert on the sole criteria of technical competence and professionalism. If the matter may result in litigation, a different course of action is recommended.

First, legal counsel should be consulted to assist in the selection of an expert. Some consultants are technically proficient, but lack the skill, verbal skills and savvy to navigate litigation. There are a limited number of consultants that possess the skill set to practically solve complex construction issues while concomitantly providing the rhetorical support needed by a litigator.

Second, the attorney should retain the expert directly and function as a conduit for direction to the consultant. Sometimes consultants reach conclusions that are not favorable to the client. If the client retains the expert directly and there is litigation, the use of the expert, and thus his/her opinions are discoverable in litigation. When legal counsel retains a consultant, the opinions and materials generated by the consultant are considered that attorney’s “work product”, much like his or her notes taken in a client meeting, and thus privileged and not subject to discovery.

Construction problems, much like construction cases, require experts. Careful planning can ensure that today’s resource does not become tomorrow’s plight.

(c) Copyright 2006 Miller, Morton, Caillat & Nevis. All rights reserved.
The information provided here is intended to educate the reader regarding issues of contemporary business interest. It is not intended to constitute legal advice or recommendations for application to any specific legal dispute. You should always confer with your legal counsel about the application of the principals and issues discussed to your own circumstances.