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Re: BORPELS and residential room additions

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At 05:24 PM 9/13/97 -0400, you wrote:
>Robert D. McGhie, Esq.,
>
>If an engineer's report is impartial and unbiased and tells the
>**truth**, it is generally going to favor one side or the other or it
>could favor neither side.

It may not be favor to either side because the way it resolves the factual
issues may rasise legal issues that do not favor one side or the other.
But, most likely it would tend to favor the side that is correct or right.

>  If the report is *neutral* (if you use that term as I am assuming), then
the report > will say nothing.

By neutral I ment that experts are not like jurors who are supposed to be
neutral and unbiased. The expert's testimony is intended to advance the
position of the side who offered it and detract from the opposing side. 

>
>An impartial and unbiased report is not neutral.  An impartial,
>unbiased report that does not support the client's position will never
>see the light of day and that engineer will never be called by his
>client's attorney to testify for the client.

Very true, but that does not mean that such a report has no value to the
client or the attorney. An expert should not assume that he or she must
always come up with a report or opinion that favors the client. Knowing the
downside and risk is equally important. Knowing the seriousness of your
defendant client's mistakes or that your plaintiff client has a weak or no
case promotes settlement, saves time and money and the need to call the
expert to testify.

>A report/testimony becomes biased when the expert *seeks* (works, has
>for his/her goal) to show a result/condition, and not whether that
>result/condition exists.

In a general sense yes. But in many cases it is impossible to know for sure
and we are merely dealing with probabilites. Demonstrating or explaining the
probabilities and factors that favor the client are proper functions for the
expert. Fair trials require that both sides be presented and you cannot
expect you opponent to present your side. Thus, the expert will normally be
called upon to present only one side. This does not mean the the expert
should not be objective with respect to the facts or .

>You are an attorney, and you have much better knowledge of client
>attorney privilege than I do, but it is my understanding that client
>attorney privilege occurs only when the expert is hired by the
>attorney.  If, for whatever rea$on, the attorney has the client hire
>the expert, then does a client attorney privilege exist between the
>expert and the attorney?
>
>A. Roger Turk, P.E.(Structural)
>Tucson, Arizona 

Generally you are correct. The privilege concerns communications between the
client and the attorney. The privilege covers the expert where the expert is
the advisor to the attorney. It covers communications between the expert and
the client. If the client hired the expert, there would be a question with
regard to the function of the expert and whether or not the expert was hired
as an advisor to the attorney or for some other purpose, where the privilege
would not apply.  The privilege does not apply to the expert once the expert
is identified as a witness, especially where the communication played a part
in the experts opinion or conclusions.

Robert