Designating an Expert in a Tennessee Real Estate Case

Designating an expert in a Tennessee real estate case is less a single event than a sequence of decisions: whether to consult first, when to designate, what the disclosure says, and how the opinions will hold up under Tennessee's reliability standards. The Tennessee rules leave more of that to counsel and the scheduling order than the federal rules do.

What Tennessee Rule 26.02(4) actually requires

In Tennessee state court, testifying experts are discovered rather than automatically disclosed. Under Rule 26.02(4)(A), a party may use interrogatories to require the other side to identify each expected expert witness, the subject matter of the expected testimony, the substance of the facts and opinions, and a summary of the grounds for each opinion. On request, the party must also provide the expert's qualifications, including publications from the previous ten years, a list of cases in which the expert testified in the previous four years, and the expert's compensation. The rule also allows a party to depose another party's testifying expert.

What the rule does not do is require a written report signed by the expert. In federal court, Rule 26(a)(2)(B) requires a signed report from a retained expert, and Rule 26(a)(2)(D) sets default timing of at least 90 days before trial, with rebuttal due 30 days after the other side's disclosure. In Tennessee, a report and specific deadlines come from the scheduling order or an agreement of the parties, if they come at all.

Timing lives in the scheduling order

The Tennessee rules set no default deadline for expert disclosure. Rule 16.01 allows the court to enter a scheduling order limiting the time to complete discovery and addressing other appropriate matters. The rule does not mention experts by name; expert deadlines, where they exist, come from the order or an agreement of the parties. Rule 26.05 then imposes a duty to seasonably supplement responses about each expected expert's identity, subject matter, and the substance of the testimony.

In Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121 (Tenn. 2004), a case involving witnesses omitted from interrogatory answers, the Tennessee Supreme Court recognized that excluding a witness's testimony may be an appropriate sanction for failing to supplement interrogatory answers, leaving the decision to the trial court's discretion after weighing the reasons for the failure, the importance of the evidence, the time needed to prepare, and whether a continuance would help.

Consult before you designate

Rule 26.02(4)(B) generally protects the identity, facts known, and opinions of an expert who has been consulted but is not expected to testify. The exceptions are Rule 35.02 and a showing that the party seeking discovery cannot obtain facts or opinions on the same subject by other means. That protection is what makes a pre-designation consultation useful. Counsel can test whether the record actually supports a standard-of-care theory before committing to an expert whose opinions will be discoverable.

When I am asked to consult at that stage, the first question is whether the documents support the theory, not whether an opinion can be written to fit it. An opinion that outruns the record tends to be exposed at deposition.

One difference from federal practice deserves attention. Federal Rule 26(b)(4)(B) and (C) protect drafts of expert reports and most attorney-expert communications. The Tennessee rule contains no comparable provision. Counsel used to federal practice should think about how drafts and communications are handled in a state case.

Reliability: experience-based opinions are not exempt

Tennessee Rule of Evidence 702 allows expert testimony when specialized knowledge will substantially assist the trier of fact. Rule 703 requires that the underlying facts or data be of a type reasonably relied upon by experts in the field, and directs the court to disallow testimony when the underlying facts or data indicate a lack of trustworthiness. In McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997), the Tennessee Supreme Court identified nonexclusive reliability factors, including testing, peer review, error rate, general acceptance, and whether the research was conducted independent of litigation.

Real estate experts usually testify from experience rather than scientific method, but that is not an exemption. In State v. Stevens, 78 S.W.3d 817 (Tenn. 2002), the Court held that experience-based testimony must still meet the fundamental requirements of relevance and reliability, and that trial courts may apply the McDaniel factors where they fit. For a broker standard-of-care opinion, reliability usually comes from tying each conclusion to the transaction documents, the governing statutes and TREC rules, and identifiable industry practice.

Rule 704 permits an opinion that embraces an ultimate issue. Courts generally treat that as different from an expert telling the court what the law means or how a legal question should be decided. Disclosures framed around practice and custom tend to hold up better than disclosures framed as legal conclusions.

What a strong disclosure covers

Whatever the scheduling order requires, a disclosure that holds up usually includes:

• each opinion, stated specifically enough that it cannot quietly expand later;
• the documents, testimony, and data each opinion relies on;
• the standard being applied, whether statute, TREC rule, contract language, or industry custom;
• the qualifications that connect the expert to that specific opinion; and
• the prior testimony and compensation information Rule 26.02(4) allows the other side to request.

The disclosure, the deposition, and the trial testimony should read as one consistent body of work, because any gap between them gives opposing counsel something to work with.

Every case and scheduling order is different. When you are weighing whether to bring in a consulting or testifying real estate expert, a short call about scope is a reasonable place to start.

Educational disclaimer: This article provides general Tennessee educational information only and is not legal advice for any specific case, scheduling order, or expert engagement.