Working with experts
Early enough to shape the record
An expert retained early influences what evidence exists. An expert retained late can only comment on evidence someone else created. The difference is usually worth more than the fee.
Two roles
Consulting and testifying
Consulting expert
Retained to advise counsel. In most jurisdictions the work and the communications are protected from discovery. Useful for early assessment, for testing a theory and for deciding whether a case is worth running.
Testifying expert
Designated to give evidence. The report, the data and in many jurisdictions a good deal of the surrounding material become discoverable. Everything is prepared on the assumption that the other side will read it.
The cost of waiting
What is lost at each stage
Before construction. Once work begins, the condition of the property beforehand becomes a matter of photographs and recollection. An expert on site early produces a record that cannot be recreated.
Before the agency appraisal. An owner who walks the property with their own expert first knows what the agency appraiser should be shown. Afterwards, the agency report exists and the conversation becomes a rebuttal.
Before the counteroffer. A counteroffer supported by expert conclusions is a negotiating document. One supported by dissatisfaction is a letter.
Before disclosure closes. After that, the question stops being whether to retain and becomes whether the court will permit a late designation.
The exception is cost control. In small matters, retaining a full roster early is disproportionate. The sensible middle is an early consulting assessment, which is cheap, followed by designation only where it identifies something worth running.
Questions about timing
Can I convert a consulting expert into a testifying one
Usually yes, and the protection over earlier work generally falls away on designation. Assume everything becomes visible, and run the consulting phase on that assumption.
What if the other side retained the expert I wanted
Common in smaller markets, where the pool of condemnation experts is thin. Another reason to move early. Conflicts should be checked at first contact.
Does retaining an expert signal that I am going to litigate
It signals that you are taking the valuation seriously, which generally improves rather than worsens a negotiation.
How much does this cost
It varies by discipline and complexity. An early consulting assessment is modest. Full designation with report, deposition and trial testimony is a multiple of it. Scope the first step before committing to the rest.
The expert decides the number more often than the argument does
In condemnation the facts in dispute are technical. Who presents them, and how well, is usually what the case turns on.