Condo Media - January 2016 - 41

a party's litigation expert from being
deposed, and it protects expert work
product that's prepared "in anticipation of
litigation or for trial." As such, if an expert
engineer is hired for this purpose, then
his or her work product (e.g., preliminary
reports and client communications)
will be protected from disclosure to
defendants in a future lawsuit, and the
expert likely will not be deposed.
WHY IS THIS IMPORTANT FOR
CONDOMINIUM BOARDS?
In construction litigation, parties want
to avoid having their expert engineers
turn over their preliminary reports or be
subject to a deposition before trial-i.e.,
where a room full of defense lawyers
get to ask the board's expert questions
under oath for potentially several days.
If such a deposition were to occur, then
the odds of the board's expert providing
testimony that could be used or twisted
by the defendants to hurt the board's case
usually go up. As such, a board should do
everything it can to shield its experts from
submitting to depositions before trial.
An engineer's preliminary report for a
board is typically just that, a preliminary
set of opinions and findings with roundnumber repair cost estimates. Once these
preliminary opinions are more fully
fleshed out over time, they often expand
with more details, and the repair estimates
can increase in scope and overall cost.
As such, it does not help a condominium board at trial to have a paid litigation
expert cross-examined about his or her
authorship of multiple sets of opinions
with ever-changing/growing repair cost
estimates. The expert can, and likely will,
lose credibility with a jury. What is best
is for the expert to disclose one set of
opinions with one set of cost estimates
to the defendants in a lawsuit so that the
expert's opinions remain consistent.
When the board chooses to first
retain a lawyer before an engineer, then
the board's lawyer can retain an engineer of the board's choosing. The lawyer
can ensure and document the engineer
is being retained by the board "in antici-

pation of litigation," and the engineer's
initial report can first be provided to the
lawyer who can then update the board
through a privileged attorney-client
communication.
If the board decides to later bring
litigation concerning defects discovered
by its engineer, then the engineer's
preliminary report will be protected
work product, and the expert will likely
not be deposed, because at all times he
or she has been engaged by the board's
lawyer "in anticipation of litigation."
This scenario is preferable to the alternative, in which the board's engineer
is serving as a pre-litigation fact witness
by undertaking a transition study, which
would likely subject the expert to a deposition. Thereafter, the board's lawyer
and the expert can work together on a
detailed and comprehensive set of written opinions and repair cost estimates

that can be disclosed to the defendants
in the lawsuit.
The overall cost to a board for retaining a lawyer to carry out this initial work
is relatively low, but it is a prudent investment, especially if the costs to repair
the potential defects are high. At trial,
an expert's credibility is paramount.
Moreover, a strong, uncompromised
expert opinion helps to encourage pretrial settlement. As such, a board should
consider contacting its lawyer as a first
and necessary step when considering an
investigation of potential common area
construction or design defects.

n DAVID UITTI, ESQ., IS A PARTNER
WITH THE LAW FIRM MARCUS, ERRICO,
EMMER & BROOKS, P.C.

Representing Condominium Associations, Homeowner
Associations and Management Companies throughout
New Hampshire and Northern Massachusetts.
Providing representation in all areas of condominium
law from drafting and execution of condominium
instruments, amendments, collection of assessments to
litigation from trial through appeal.
For specific questions and to find out how we can
service your particular needs, please contact our office
and speak with one of our attorneys.

(603) 627-5997

45 Bay Street
Manchester, NH 03104

(603) 742-1052
3 Webb Place
Dover, NH 03820

(800) 828-3200

565 Turnpike Street
North Andover, MA 01845

www.fenigeranduliasz.com
Serving clients in all of NH and northern MA
January 2016

41
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