Please discuss this information relative to the current Exposure Draft, report certification requirements, and rules of discovery.
OK.
As per my read, if the Exposure Draft is enacted, appraisers can communicate preliminary assignment results to their clients in a written manner. If labeled as a "draft" or something similar, that communication does not require a certification nor must it comply with the Record Keeping Rule.
Unless there is a contrary requirement in the Rules of Discovery that require all written communication to be retained between attorneys and their experts, draft reports, if not retained, would not be subject to discovery because they would not exist.
In my practical experience (limited as it is), what this means is: Rather than me having long conversations with my client telling them what is in the report prior to delivering the report, I can now send a draft copy to the client. The client has a chance to read it and decide (a) if there is anything in the report that s/he wants to ask me about and (b) if the results suit their needs.
As to "(a)" they might ask me to clarify something or to have a deeper discussion on an item. They may also ask me, "do you need to include this?". Expanding or clarifying is likely not going to be an issue, and I am happy to do so (especially at my hourly rate). "Do you need to include this" will probably result in a "yes, I do" and while they may ask for modifications to the parts they don't like, they may not get them.
As to "(b)" it may not be common knowledge of appraisers who don't deal in litigation, but we are hired to provide our independent, impartial, and objective opinion for their argument. If our results assist them in their cause, they are going to use them. If our results don't assist them in their cause, they may not use them (however, a good attorney will always tell you that they want to know what the real story is, because it helps them decide on what is the best strategy to pursue). The attorney is always an advocate for his/her client; the report is part of the that advocacy. If it helps the advocacy, they'll use it. If not, they won't. But we report what is, and our reports are credible and performed in an independent, impartial, and objective manner.
In my real world, attorneys want to limit discoverable documents to a minimum. Depending on the type of litigation, some attorneys are very clear: If we need to talk, call me, do not email me (email communication is discoverable). As nefarious as this may sound in today's "Panama Papers/Private Email-server" environment, it isn't. "Discovery", "Deposition", any of those types of research systems are designed to do several things, but two of them are: 1) to establish facts and 2) to look for inconsistencies that can damage the credibility of the other side.
An innocent and meaningful request such as...
"Mr. Appraiser... you talked about the damage-issues and the cost to repair those issues in your report. You have a long list from the contractors but you've summarized it in your report. This is a critical component of our case. Can you expand on your summary so the significance of the number of items is made clear, or include the contractor's summaries in the report?"
...should arguably have been done from the get-go. But it wasn't. If I deliver a report without that and then another with it, the opposing attorney may try to make hay over that issue ("what else did you change? I thought appraisers were supposed to be independent? etc., etc.).
As Danny mentioned earlier, such a stunt tried on an experienced litigator isn't going to pan out that well. But such stunts do work. And attorney-clients prefer not to have extraneous written communications that can set such stunts up.
I'm supposed to communicate my results in a manner that is meaningful to the intended use and that is not misleading. The attorney is ordering the appraisal to use as part of a damages argument and the list of damages is significant. Summarizing the damages in a few short sentences, while not misleading, does not adequately communicate the severity of the issue given the intended use. The analysis does not change; the report is amended to give a comprehensive list of what the damages were; this better assists the intended users in understanding how those damages impacted the market value. A draft report allows this type of communication to occur without it being discoverable if not required to be retained.
There are other reasons why drafts may be useful, but I don't deal in those arenas.
I would particularly value commentary from any current or former attorneys on the matter.
Hey, one out of two ain't bad.
