Effective counsel should engage a consulting expert immediately upon the discovery of a defect on a project, the benefits of which include providing cost-effective representation that saves the client money and minimizes risk. A consulting expert can provide counsel and the client with creative solutions to address defects, thereby reducing remediation costs, litigation costs and any direct or indirect damages. Each of these reasons supports retaining a consulting expert early on in order to enhance the client’s overall prospects for a successful outcome both with respect to the integrity of the project and the resolution of any disputes.

Consulting experts can make contemporaneous observations of a defect and perform tests that may not be possible to replicate later. The expert can, in consultation with counsel, create the documentation needed to support an appropriate solution and enhance the likelihood of recovery. Additionally, within the appropriately established confines and privileges, an expert can conduct contemporaneous interviews with key personnel while their memories are still fresh and detailed. Of course, such experts can also help counsel and the client avoid being distracted by extraneous matters. When counsel retains a consulting expert early with respect to a defect, that expert can also identify what other experts may be necessary to arrive at solutions. The expert can help counsel develop an approach to address defects and outline the corresponding costs associated with each proposed solution. The expert can help counsel and client identify what is necessary, what is reasonable, and what may constitute, among other things, a betterment.

Counsel should require the consulting expert to identify other technical expertise that is beyond their own credible areas of testimony and opinion. In doing so, counsel can solidify the entire expert team and the corresponding budgets associated with each member. Counsel can also, in a collaborative way, arrive at an approach with respect to the experts that recognizes the need for integration so that each understands his or her role in the project and the overall process. Consideration of organization, process, structure and budget are paramount for success. Each member of the team must understand the client’s goals and, when necessary, make appropriate recommendations to allow the client to adjust their goals.

All too often, counsel allows experts to drive the process. If experts are not managed appropriately, clients can spend a disproportionate amount of money on specialists, more than what is required to find a potential resolution to the defect. Counsel must manage experts prospectively and cost-effectively. Accountability at all times is paramount.

Of course, counsel must ultimately retain each expert and must advise the client of when, if at all, a consulting expert may transition to a testifying expert. Obviously, a testifying expert will need to provide and understand both procedural and substantive rules applicable to the performance of each expert task. Consequently, experts not only need to have the requisite substantive experience but also the requisite litigation experience to provide counsel with an adequate level of comfort that they can satisfactorily and successfully perform expert tasks. Counsel must, in effect, serve as the conductor orchestrating an appropriate plan to achieve the client’s articulated goals, modified where appropriate.

With any defect, timely identification of the requisite damage expert will enable counsel to rely upon that expert to assist with the prompt gathering of data in a usable format. Such an expert can timely examine the client’s capabilities and what enhancements need to be undertaken. The expert can also assist both counsel and the client with documenting costs, identifying incremental costs, and the need for a scheduling analysis, if any.

The timely collaboration of a technical and damage expert can also assist counsel with respect to avoiding potentially untenable theories. When counsel lacks adequate support of technical and damage experts, it often results in increased legal fees attributable to general examination and investigation. With solid expert support, such examination and investigation can be avoided and thereby avoid legal fee impacts to the client.

Counsel should always be cognizant of the need to approach a defect in a way that makes economic sense and is proportionate to the exposure. When dealing with a construction defect, the costs not only of counsel but also of experts can frequently determine what makes the most sense. After all, addressing a defect with a practical solution may sometimes cost considerably less than full-blown litigation and the corresponding legal fees, expert fees and direct and indirect costs.

When counsel is armed with appropriate experts and has developed a sensible approach, they can advise the client not only about creative options for addressing the defect, but also the likelihood of a creative resolution. If counsel identifies all the potentially responsible parties and engages their counsel in a constructive manner, within the confines of meaningful settlement communications, counsel can reach an agreement to have experts discuss investigations, options and alternatives. By doing so, counsel can positively and appropriately shape the investigation, options and alternatives that the client has at its disposal. Counsel will find that they can help the client avoid higher costs that result from later retention of experts and provide them with risk assessments at appropriate stages of the investigation and ultimately any potential settlement communications prior to formal litigation.

Experts can help develop theories of liability and corresponding damages. This can help counsel’s experts engage in direct communications with opposing experts with the goal of achieving agreement as to the issues and the process to discuss, debate and ultimately arrive at solutions and allocation of responsibility and costs.

In this era of exorbitant costs associated with construction defects, counsel has an obligation to advocate vigorously to a client for early retention of appropriate experts. In so doing, counsel maximizes the likelihood of successfully addressing the defect and helps minimize the financial risk to the client both from the defect and potential litigation. Finally, counsel will likely save the client considerable legal fees, expert fees and the time commitments typically associated with any alternative dispute resolution process or litigation.

Reprinted with permission from the August 01, 2023, issue of The Legal Intelligencer© 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.