A Contractor That Acts as His Own Expert Witness May Inadvertently Waive Attorney Client Privilege

The general rule is that a party does not have to disclose communications with its attorney seeking legal advice.  A recent Superior Court decision, Noble v. the City of Norwalk, 2012 Conn. Super. LEXIS 2017, however, has found an exception to the attorney client privilege that contractors need to be aware about.

During a trial, witnesses are not allowed to give their opinion unless they are qualified as an “expert.”  Under the legal definition, an “expert” is anyone that has knowledge through education, training or experience that would be helpful to the jury given the subject matter of the lawsuit.  Based upon the foregoing definition, almost anyone can qualify as an expert if the right case came along.  For example, my 13-year-old daughter has been taking ballet lessons since she was 3.  If ballet ever became relevant to a key issue in a lawsuit, my daughter would qualify as an expert on that subject.

In construction litigation, there are always questions that are not clearly fact or opinion.  For example, the amount of time that the forms have to remain in place after a concrete pour is a subject upon which there is disagreement and often depends upon the structure that was poured and the conditions under which the concrete was placed.  In such a case, it may not make economic sense to retain an expert but – out of an abundance of caution – attorneys sometimes disclose their own clients as experts to allow them to testify about such subject matter should the court determine that the subject matter requires expert testimony.  Due to the Noble decision, however, this tactic may result in a waiver of attorney client privilege.

In Noble, the taxpayers served a subpoena upon the city’s assistant tax assessor.  In the subpoena, the taxpayers sought information that the city claimed was privileged.  Unfortunately, the city had disclosed the assistant tax assessor as an expert.  The taxpayers correctly pointed out that a party must disclose its attorney’s communications with its expert.  The city claimed that the attorney client privilege still extended to employees that were disclosed as experts.  Thus, the question was whether disclosing a city employee as an expert witness waived attorney client privilege.  With regard to the specific circumstances of Noble, the court ruled that the disclosure of the assistant tax assessor did operate as a waiver of attorney client privilege.

On a positive side, Noble is only a Superior Court decision and may be limited to its specific facts.  On the other hand, the decision was based upon the federal rules because the federal courts have similar expert disclosure rules as Connecticut and federal courts have had more opportunity to look at this situation.

In light of the foregoing, attorneys that represent contractors should not disclose their clients as experts without good cause.  For example, because you do not need to be an expert to testify regarding the value of your own services, a contractor should never be disclosed as his own expert to testify as to the value of extra work if that is the basis of the subject lawsuit.

If you should have any questions about testifying as an expert on your own behalf, please give me a call.

Scott Orenstein
(203) 640-8825

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