A common objection to using expert legal testimony is that it interferes with the function of the trial judge to determine the law. Undoubtedly when the prospect of a party's calling a legal expert to testify is first raised, a trial court's likely response will be "that's my job, give me a memorandum of law on that subject." The typical disallowance of such testimony is invariably that a legal determination is to be made by the trial judge, with the assistance of counsel's legal arguments, not by way of expert testimony.
Family Advocate: Outstanding Financial Experts (Buy Issue)Some consider the use of expert testimony on the law as the antithesis or usurpation of a judge's domain, whereas others view it as a useful and perhaps imperative tool of persuasion. Such testimony is necessary and appropriate in only a handful of cases, but especially those involving foreign-law procedure and customs or esoteric and complex areas of domestic law.

Arguments against

That is all fine and good, but judges are no different than lawyers. Most family law practitioners are uninformed regarding patent law, copyright law, complex tax law, mining law, wills and estate law, complex business and commercial law, bankruptcy and reorganization law, securities law, insurance law and practices, immigration law and procedures, admiralty and maritime law, worker's compensation, retirement laws, and the like. Most matrimonial attorneys are not even cognizant of other states' laws concerning divorce and related matters (other than the particular state or states in which they practice) and certainly lack knowledge concerning the laws, procedures, and customs of foreign countries.

Matrimonial attorneys often are faced with issues that concern obscure, manifestly technical, sophisticated, and complex laws and issues, all of which may be well beyond the ken of most judges and attorneys unless the particular judge or attorney has had some previous experience or education in those areas.

The viewpoint against admitting expert legal testimony is arguably devoid of reasoning. If the goal is to seek the truth and do justice and equity, the trial judge should be fully and accurately informed. Why should such fundamentally important concepts as equity and fairness be potentially jeopardized by relying on a judge's interpretation of a law, procedure, or custom, on which the judge (through no fault of his or her own) is ill-equipped or less equipped to opine than an expert on that particular subject.

Appellate decisions are replete with reversals "on the law" or "as a matter of law." Certainly some of those reversals could have been avoided if the trial judge was more fully and accurately advised regarding the particular law, procedure, or custom in question.

Arguments for

A legal expert can be of enormous assistance to the court in determining sophisticated, complex legal issues. Merely submitting a memorandum of law does not necessarily help the trial judge. In fact, some may claim that memoranda of law submitted by counsel merely serve to further confuse the judge. However, expert testimony on the law provides both counsel and the trial judge with an opportunity to inquire of the witness as to the law and its potential nuances.

Legal expert testimony is used quite often in the family and matrimonial field, such as:

  • With respect to an award of attorney's fees concerning the reasonableness of the time devoted, the hourly rate, and the amount being requested;

  • In cases involving another state's or foreign country's law, procedure, and customs ( e.g., whether a foreign final judgment was properly obtained in accordance with the foreign country's procedures and customs);

  • In states where an attorney-spouse has pending contingency cases that are considered marital or community property, attorneys frequently testify as to the value of those cases in progress; and

  • With regard to malpractice actions, in terms of the applicable standard to be applied and whether the attorney violated that standard.

Alternatives

In the event the trial judge, either prior to trial ( e.g., on a motion in limine) or at trial, refuses to allow the legal expert to testify, one alternative would be to, if permissible, have the legal expert appear as co-counsel and argue the legal point when needed during the trial or in closing argument. This may necessitate, assuming all the requisite criteria is satis?ed, the legal expert being admitted pro hac vice.

No one can reasonably contend that an attorney who lacks expertise on a given law, procedure, or custom will be as persuasive in presenting the material to the trial judge as an expert in the field. Furthermore, if the trial judge has questions, the expert is best qualified to respond.

Finding a legal expert

Locating an expert to testify on a particular area of law can be difficult. Colleagues and fellow attorneys are a good place to start, or if your state certifies attorneys as specialists in certain areas of the law, seek a referral from your state bar. Fellows of the American Academy of Matrimonial Lawyers (who are listed at www.aaml.org) also may prove helpful.

The International Academy of Matrimonial Lawyers (IAML) is recommended for locating experts on foreign law. The IAML is a worldwide association of practicing lawyers (at www.iaml.com) who are recognized by their peers as among the most experienced and expert family law specialists in their respective countries. The following are currently represented by members of the IAML: Australia, Austria, Belgium, Brazil, Canada, Cyprus, Denmark, Dominican Republic, England, France, Germany, Greece, Hong Kong, India, Ireland, Israel, Italy, Jordan, Malaysia, Netherlands, New Zealand, Scotland, Singapore, South Africa, Spain, Sweden, Switzerland, and the United States.

Conclusion

Most judges are apprehensive about permitting expert legal testimony. Counsel opposing the party requesting such testimony may be even more apprehensive. However, a well-educated, experienced, and articulate attorney-witness should be able to simplify and explain the legal issue in question. Such testimony should promote the best interests of the parties and serve the best interests of the court and the judicial system as a whole. The witness is subject to cross-examination, and the credibility of and the weight to be accorded such testimony, like any other evidence or testimony, is subject to the trial judge's discretion. The value of such testimony certainly will outweigh any potential harm. FA

Christopher A. Tiso is an associate with Melvyn B. Frumkes & Associates, P.A. of Miami and Boca Raton, Florida. He is admitted to practice in Florida and New York.

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.

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