Using An Expert Witness

Divorce

USING AN EXPERT WITNESS IN A DIVORCE

One way to understand the organization of a family law case is to think of your attorney as the conductor of a symphony orchestra. The judge is the audience to the performance. You want to make sure to impress your audience. You, the client, provide the backbone of the case the way the string section does in the orchestra. But a great symphony—one that impresses—is nothing without the other sections of the orchestra providing additional harmonic impact and drama, like the brass, woodwind, and percussion. Depending on the complexity of your family law case and the issues involved, there will likely be other important roles played provided by crucial supporting witnesses. These are like those other sections in an orchestra supporting the backbone of the strings. In your family law case, “the brass, the woodwind, and the percussion” are often played by a particular type of witness: The expert witnesses.

Family law cases broadly covers two general types of categories: (1) suits for divorce, by which a court divides marital property or the community estate, and (2) suits for child custody (a Suit Affecting Parent-Child Relationship). There are of course other types of cases that are essentially offshoots thereof (modifications, enforcement, appeals), but the real focus here is on the two broad categories of cases that come before family law courts, the types of experts involved, and how best to use them.

Expert witnesses are important in complex matters for both categories because they help the trier of fact understand the unique situations present in that particular matter. Your attorney, may (and should) understand the situation in your case the way an expert would, but they may be limited by procedural rules. For example, you have significant separate property that your attorney knows should not be divided. However, your attorney is not a fact witness to the case. You, the client are, and you could potentially explain how that property could be your separate property. However, it may not be so simple. Maybe your separate property is commingled with other accounts. Then, the picture of what is your separate property becomes murky. Likely so murky that you really need expert help to walk through what is separate property versus what is not, i.e. what is community property. This ties into another problem when you, the client are testifying about your own property. Maybe you are truthful and honest, but because it’s you saying, “all that property is mine,” the court may still not consider you to be the most reliable source of information. There is the bias of self-interest. A professional forensic account, on the other hand, is bound by ethical guidelines of practice. If they do not tell the truth the consequences, beyond perjury, could mean a loss of license and a loss of a job. Therefore, an expert may clear the murky waters and explain to the court with the authority that comes from a professional credential what actually is going on. They are credible. Credibility is the currency of courts.

In the above example, we’ve identified a type of witness that could be very important in a case dividing property: a forensic accountant. A forensic account could review your financial records dating back to the date of the marriage, the date that the community estate was created, and trace out what property may have remained separate, i.e. what was owned by you before marriage, versus what became community during the marriage. Depending on the circumstances, this time of expert testimony can be critical.

Here is another example of where a financial expert could be very important in a divorce matter where property is divided: Let’s say you and your wife own many franchises of a retail store across many states. Some stores you own outright. Some stores you own in partnership with others. Some stores are subject to particular restrictions due to your franchise agreements. It’s a complicated situation. All the stores together may be seriously valuable, but how do you know what that ultimate value actually is? How do you value it for the court so that the court can decide what would be a “just and right division” of the estate? You certainly will need to know how much it is worth and a person who can credibly and authoritatively tell the court what that value is. The person to do that would be a valuation expert. A valuation expert would be essential to explain that whole complex picture. Without one, you may certainly risk leaving a lot of value on the table.

There are other types of experts that may come into divorce litigation beyond the strictly financial. Your spouse may allege that they have serious medical issues that they say would mean that they cannot work and provide for themselves after divorce. Let’s say you do not believe your spouse’s position because you know for a fact that they are perfectly mentally capable of completing challenging tasks (they just solved a Rubik’s Cube…) and they easily completed an Ironman Triathlon only yesterday….In other words, you think that their claims of medical frailty is dubious at best. Well, having a medical doctor who could review your spouse’s medical records and condition and who could authoritatively explain to the court that your spouse’s claim is not medically supported is a lot more convincing that you calling your spouse a good-for-nothing bum…even though that may be what they are.

Let’s shift gears to the type of expert that may be involved in a child custody case. What you are likely to use in a child custody case is some type of mental health expert. There are many types of mental health expert, including psychologist, psychiatrist, licensed counselor, licensed social worker, a custody evaluator, and parenting facilitator, who may become involved or who may offer important expert perspective in a custody case. Obviously it depends on the types of issues that may be in question.

Here’s an example of where it would be important to get a mental health expert: Your client has previously been diagnosed with bipolar disorder. He has been in psychiatric treatment for it for years and successfully so. He is in remission and shows no symptoms of the disorder. He’s a model patient and a model parent. Nevertheless, the past diagnosis, especially in a contested case, is something that the other side may seek to pounce on. Therefore, it would be critical to have a psychiatrist involved with your client’s treatment, including their medication and therapy, discuss what your client’s condition is, how they attend to it, and how it should not likely interfere with things should their custody of the child come into question. The psychiatrist offers a lot more weight to testimony than the client simply saying: “I’m doing well.”

Your attorney will need to examine the factual circumstances in your particular case and the issues contested and determine which experts to involve. Your need for an expert may appear to be obvious at the beginning of the case. Or you and your attorney may recognize the need for an expert as the case progresses and as more evidence develops through the process of discovery. It’s the role of the attorney, like the symphony conductor, to figure out what “instruments” to use and how to make the presentation of the “music” resonate.

Your attorney will do that by working in close coordination with your expert. They will learn about the process your expert witness went through to first become an “expert,” e.g. what particular education and training they went through to become an expert, how they are recognized in their field for their expertise, how much experience they have in that field, etc. Your attorney will need to see how your expert has applied those skills to your particular case. Your attorney will need to see what things your expert considered in their evaluation and what opinions they have come to from that. They will also want to learn how their opinions could be challenged. Your attorney will not just work with the expert to better understand your case to support your position, but they will likely use them to determine ways to challenge the perspective of the opposing side, too. This process can be quite time intensive. However, expert testimony and the evidence and opinions that may have may carry significant weight for the court.

The attorney then as “conductor” will want to use the expert to create dramatic points of emphasis or crescendos. If the expert witness has a clear and sharp opinion, you want to make sure that those points are heard clearly, without any distortion. While your attorney will “raise the conductor’s baton” high when your expert’s conveying his opinion in support of your case, he’ll also do so when he uses your expert to attack the other side’s position.

Sometimes, like the symphony, one expert will not suffice for the true impact. You may need multiple experts to create that resounding message to the court. Your attorney will structure testimony such that it creates a harmony and a rhythm between various experts and other evidence presented to the court. The point is this, while judge may be hearing different facets of the case, your experts working in tandem should work to support the same overarching theme: your client’s position.

When expert witnesses are integrated into your litigation strategy they can truly be instrumental to the outcome of your case. Without expert witnesses, instead of a symphony that powerfully moves the judge you may be left with a weak, disjointed cacophony of a case and a negative result. Just as there is a significant distinction in skill between your teenage child’s middle school orchestra versus the New York Philharmonic, there is something to be said of the artfulness and finesse required by your attorney to integrate an expert into the presentation of your case. An attorney who has significant experience working with experts, who understands what value they add to your case, is itself a value added enhancement to your case. One of the benefits of a firm like ONDA is that under one roof you will find many attorneys with decades of experience working with top experts from a variety of fields, whether it is mental health, financial, or medical. Among our attorneys are people who have literally written books with various experts about the type of work involved in a family law case. A consequence of that significant level of experience and expertise amongst our attorneys in working closely with experts in family law litigation is that, like a highly skilled conductor, your family law case will resound. Call us today or schedule an appointment online!