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Practice Area Newsletter

American Bar Association - Defending Liberty, Pursuing Justice

Spring 2009

Vol. 5, No. 3

Family Law

 

Hiring an Expert

Finding a wise, knowledgeable, experienced, credible, affordable, and available pro.

Experts possess special training, skill, or knowledge in a given area beyond the capabilities of the trier of fact. An expert is permitted to give opinions and draw inferences as to particular issues that are in controversy in an effort to assist the trier of fact in making decisions. However, the expert’s opinions are not binding on the trier of fact.

Initially the court has discretion to determine if the witness offered is qualified to testify as an expert. An expert needs no special degrees to be qualified in a particular area, but can be qualified by experience, skill, and independent study. In hiring an expert, determine schools attended, degrees achieved, continuing education acquired, papers prepared and published, lectures given, memberships acquired, and so on.

Obtain a Written Resume

Generally, an attorney suggests the use of an expert to the client; however, input from the client also can be helpful. Other attorneys are a good source of expert referrals.

In screening potential candidates, review the expert’s experience in the particular area or areas for which services are being sought. Peruse articles written and lectures given and examine the expert’s prior testimony. Before retaining an expert, ask how many times the expert has been employed in similar cases, is the expert’s service limited to forensic work, has the expert been qualified by courts in the past, and has the court relied on the expert’s opinions and conclusions?

In qualifying an expert, some courts look to whether the witness has any reasonable access to specialized knowledge on the subject under investigation. The court ascertains whether the witness has sufficient skill, knowledge, or experience in the field to aid the trier of fact in a search for truth.

The expert must be knowledgeable as well as available to the attorney. Ask specifically whether the expert has the time to devote to the matter, whether there are any limitations on when he or she can be contacted in the office or at home, and whether the expert will come to the attorney’s office for consultations throughout the case.

The expert must be a credible witness; be able to communicate in clear, concise, and simple terms; and be well spoken. He or she must be able to make the complex sound straightforward, logical, and uncomplicated. Of utmost importance, the expert must be able to maintain his or her composure and position under strenuous cross-examination.

Journalist David Margolick in his book Undue Influence: The Epic Battle for the Johnson & Johnson Fortune wrote:

You needed people who [are] not just erudite, but persuasive and likeable. You also [need] people who [are] fresh enough to testify with conviction, and hungry enough, whether for recognition or intellectual excitement or kicks, to work at it rather than wing it.

There is no question that the use of experts will boost the cost of litigation, and not every case will warrant such use. Whether to hire an expert is a judgment call that must be based at least in part on cost effectiveness. When property values in question do not merit the cost of hiring an expert, the owner of the asset can testify to its value if sufficient basis for making such a conclusion exists. However, if the nonowner spouse refuses to agree to that value, an expert may be necessary to present the nonowner’s appraisal of value.

Sometimes the court will appoint its own expert, or the parties may agree to use one expert and share costs as the court shall decide. This procedure will undoubtedly minimize expenses and enhance settlement possibilities. At minimum, it will decrease the time required for trial. However, if things go awry, one may be locked into that expert’s opinion, and he or she cannot later be part of your case preparation.

Note that the effective expert will not be an advocate, except as to his or her opinions and conclusions. Advocacy of the client’s positions is the attorney’s province. An expert with a biased opinion loses credibility. The most persuasive expert is one who appears as an assistant to the court, rather than an advocate for the party for whom the expert was called.

The Expert’s Role

If an expert or experts are to be used, retain them early in the case and incorporate them into your team. An early analysis by the expert will help in formulating your theory of the case and may assist the client in maintaining realistic expectations.

Encourage the expert’s active participation by requesting a list of documents and other materials that should be requested of the opposing party. Such a list of treatises and other authorities upon which the expert will rely, and especially upon which the opposing attorney should rely, can be of immeasurable help to counsel.

Your expert also will be an invaluable resource in preparing for the opposing expert’s deposition and testimony. Your expert can help frame questions ahead of time and during the opposing expert’s presentation be a savvy listener to not only what is said but what is left unsaid. Likewise, when the case is fully prepared, the presence of the expert at the settlement conference or mediation can contribute to a meeting of the minds. Sometimes if counsel or the parties reach an impasse during such sessions, a meeting of the experts alone can go a long way toward resolving issues.

During Trial

If settlement fails, trial is the next step at which the experts play an essential role. The expert should sit at counsel table whenever the court is addressing the issue for which he or she has been hired. Although there is a rule of exclusion of witnesses from the trial unless testifying (allegedly so that the witness will not be tainted by the testimony of others), more frequently than not, courts will allow experts to remain so as to assist counsel. Such assistance is not only helpful during the direct examination of witnesses, but also throughout cross-examination, especially of the opposing expert.

Having the expert present throughout the trial is the preferred method, especially if he or she has a winning personality and convincing manner. His or her presence throughout the trial allows the trier of facts to see and hear the expert and observe how testimony on both direct and cross comes across to the expert. However, costs may limit this approach. Where financial resources are limited, most jurisdictions permit the testimony of such witnesses by deposition, preferably by video deposition. Also an expert’s telephone deposition is frequently permitted, especially when the expert is in another jurisdiction or foreign country. A telephone deposition may be preferred when the expert must testify as to a discrete subject.

In cases involving significant issues and where the parties can afford it, retaining an expert is not a luxury but is essential. The challenge is to hire the right expert who is independent as to opinion but a team player in preparation.

Melvyn B. Frumkes practices family law with Frumkes & Associates in Miami, Florida. Jack A. Rounick practices family law with Flamm, Boroff and Bacine in Blue Bell, Pennsylvania. Both are members of the Family Advocate Editorial Board.

Note
Published in Family Advocate, Volume 29, No. 4, Spring 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

© Copyright 2009, American Bar Association.