§25.10 Use of Consultants

• Jurisdiction: Washington

§25.10 USE OF CONSULTANTS

Given the complexities of many construction disputes, experts are often engaged to present claims or prepare defenses. Experts offer opinions on a wide range of topics, including scheduling analysis, liability analysis, scope of repairs, cost of repairs, cost accounting, and breach of the standard of care concerning design documents, among others.

(1) When to hire

Due to cost, experts generally are not engaged until a dispute is already in litigation or arbitration. However, if a contested claim is of sufficient size, it may be more efficient to retain an expert prior to litigation to assist not only in evaluating and preparing the claim (or defense) but also in creating a proper record. This assistance may be particularly important depending on the dispute resolution procedures of the contract and whether spoliation of evidence is a concern.

At the outset of construction litigation, a preliminary determination should be made regarding whether an expert is needed to evaluate the client's case, formulate a discovery plan (including preparing written

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discovery requests and preparing deposition questions), and prepare and present the claim or defense at trial. In the event the decision to hire a testifying expert is held in abeyance due to costs, as discussed above, keep in mind that local court rules may provide expert disclosure deadlines and avoid prejudicing the opposing party by delaying disclosure. Of course, if cost is the driving factor in delaying hiring an expert, which is typically the case, consider whether hiring the expert under a phased approach is viable. Often experts are willing to provide an initial high-level analysis early on with a more in-depth analysis later only if needed.

(2) Testifying versus nontestifying

In Washington state courts there are two types of experts: testifying and nontestifying. A nontestifying expert may be helpful in preparing a case from behind the scenes. His or her identity and opinions are not discoverable except as provided in CR 35(b) or upon a showing of exceptional circumstances. CR 26(b)(5)(B); Detwiler v. Gall, Landau & Young Constr. Co.,42 Wn.App. 567, 572, 712 P.2d 316 (1986). For that reason, nontestifying experts can be extremely helpful in candidly evaluating your client's position. Anontestifying expert can be "converted" to a testifying expert later, as long as sufficient disclosure is provided and the opposing party is not prejudiced by any delay in the disclosure. Detwiler, 42 Wn.App. at 572 (cautioning against providing an intentionally untimely disclosure).

A testifying expert may play a central role in presenting a party's case. For instance, whether an engineer breached its standard of care in designing a complex system may only be established through testimony of a testifying expert, as lay witnesses are not permitted to offer testimony on "scientific, technical, or other...