4 Keys to the Use of Experts in Family Law

1. Defining an Expert

In the American system of jurisprudence there are two types of people who can give testimony.

The first type of witness is the one with which most people are familiar. They are known as percipient witnesses. In other words, they are someone who can testify as to their sensory perceptions. What they heard, what they saw, or even what they smelled.

Something like this is the typical testimony received in a court of law:

“Mr. Witness, please tell the court what you saw on that fateful morning last March.”

“I saw the black sedan drive through the red light and hit the plaintiff’s parked car in the left rear panel, it made a terrible noise and the smell of burning canvas just after the fireball was horrendous.”

The second type of witness is known as an expert witness.

First definition of Expert Witness: Barron’s Law dictionary defines expert witness as a witness having “special knowledge of the subject about which he is to testify” that knowledge must generally be such as is not normally possessed by the average person.

Once an expert’s qualifications are sufficiently established for the court as to that persons education, training or experience that person can then opine as to analogous hypothetical situations put to them by the trial attorneys.

Typical Expert Witness testimony might go something like this:

“Mr. Expert Witness your training and qualifications have now been established to the satisfaction of this court, you have had an opportunity to review the documents and records in this case – at this time, if you would be so kind, please tell us in your expert opinion what the value of the art collection would have been had it not been destroyed in the fire caused by the defendant.”

“Thank you Mr. Lawyer, having reviewed the records of the art collection and being intimately familiar with the market for such artifacts, it is my expert opinion that had the collection not been destroyed it could be sold at auction for $117,000.”

Second definition of Expert Witness: Expert: An “X” is an unknown quantity; a “spurt” is a drip under pressure. Therefore an “Expert” is some unknown drip under pressure”.

This definition I learned from H. H. Stein, my father. It is the one that I used to use when I was preparing a client for litigation where expert testimony would be engaged.

This definition may sound cynical but experienced trial family lawyers know that if your “hired gun” expert isn’t giving you the testimony that you’re looking for, you get another expert.

Trial judges are also keenly aware that when they receive expert testimony the person giving the testimony has been paid a lot of money and anything they hear must be sifted through the “profit motive” filter.

2. The Cost of Using Experts

Make no mistake, expert testimony is expensive. Many times the expert is being paid $400 to $500 an hour and often they will have an “actual testimony” fee that is higher. To establish a foundation for their testimony they will, no doubt, need to spend many hours in research, reviewing files, interviewing parties and cogitating at length on the nuanced minutiae of any particular issue. It is not unusual to spend many tens of thousands of dollars on experts in litigation.

3. When to Use Experts in Family Law

Many Family law disputes are, at their root, about property and children.

Many times real estate, pension plans, art, antiques and other collectibles must be assigned a dollar value so that they can be assigned to one party or the other and the proper value of the set-off is determined.

In some unfortunate situations parents are unable to come to terms on the best custody or visitation situation for their minor children and an “expert” is engaged to “opine” as to what the best circumstances for the children would be. Liaise as family law mediators help to overcome such issues.

Of course, the situation is complicated by the fact that both sides in a lawsuit are entitled to engage experts. A court is often presented with the scenario of “battling experts”. Two equally qualified opinions that, more often than not, diverge greatly.

4. How To Lower the Costs of Experts

Fortunately, people who are seeking to end their marriage through mediation and not litigation have a simple solution to the problem of expensive expert testimony.

Many times there are assets that must be valued in even the friendliest of Marital Dissolution.

The parties agree that they do not wish to sell the real estate, wine collection, model railroad or other asset. Sometimes there is a “Defined Benefit” pension plan that needs to have its “present value” ascertained. A defined-benefit pension plan is one where the covered employee will receive a certain percentage of their earnings upon retirement. Such a plan must have its present value determined by a forensic accountant if it is going to be assigned inequally between the parties.

The way to avoid “battling experts” in the mediation situation is for a single engaged expert to perform their service for the mediation company, not the parties. By this simple expedient the expert is in no way influenced to favor either party in their opinion. They know that their current employment and their future employment are dependent upon their giving the fairest opinion possible as to the value of assets.

The other type of expert opinion, regarding outside opinions on the best resolution of child custody and visitation issues occurs very rarely in mediation. The people who choose mediation have adopted the mindset that they are in the best position to negotiate the optimum resolution for their children. Indeed, loving parents of good faith are better situated than any so-called family law mediators to determine what the best arrangement for their family is.

This is not to say that people involved in mediation do not have conflict regarding the management of child visitation issues. Of course they do, but all families have conflict. Sometimes Liaise will engage a therapist or counselor, acceptable to both sides, to meet with the parties and/or attend mediation sessions to help the couple get through their issues and come to terms. Through mediation both sides are able to hear and, hopefully, understand the other side’s position and together continue to act as good parents.

David D. Stein has been an attorney for 20 years and the founder of Liaise® Divorce Solutions. He is a trained best divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.