THE PARAMOUNT IMPORTANCE OF EXPERTS IN FAMILY LAW MATTERS

While perhaps it should not be the case, the reality is that in Family Law matters, expert witnesses are of paramount importance, and, your choice of experts can make or break your case. While it is true that Family Courts are courts of equity, it is also true that our adversarial legal system operates within a free-market economy wherein the old adage "you get what you pay for" more often than not rings true. See, In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 811 (Family Courts are courts of equity).

In Money and Justice, the author, Lois G. Forer, presents the thesis that ‘American courts are not equally open and available to all who have legal claims and defenses—that there is turnstile justice for the poor and lengthy trials and appeals for those who can afford to pay for lawyers, investigations, expert witnesses, and documentary and physical evidence’ (p. 14,emphasis added). Because of this disparity in trial time and quality of representation, the author concludes that most poor people do not receive due process. See, Forer, Lois G., Money and Justice: Who Owns the Courts? (1984) New York: W. W. Norton & Co. 1984. pg. 14. It is my experience that the same holds true for both poor and middle-class litigants in Family Court, as well as "out-spouses", i.e., spouses who didn't have access to or control the family and/or family business finances during the course of the marriage. One reason for this is the fact that, generally speaking, expert witnesses are paid pursuant to the results they help their client's recieve, and, the right expert can help you recieve the results you need.

The above, of course, begs the question, what role due expert witnesses play in Family Courts, and, how can they influence the ultimate outcome of a case. Simply stated, expert witnesses, be they forensic psychologists, forensic accountants, reasonable compensation experts, or others, have specialized expertise which the Court, the attorneys, and the parties lack. Where such expertise is relevant to the matters before the Court, the Court, relies on expert witness to assist it in arriving at determining disputed issues of fact. In fact, many judges effectively abdicate their authority to the most persuasive expert witness where disputed issues of fact, such as what timeshare or custody arrangements are in the best interest of a child, and, more often than not, the expert's opinion they value is the one which most comports with the protocols of their own profession.

It should also be kept in mind that many experts that the local courts are familiar with may be subject to attack because they are used to not being effectively challenged, and, used to having their opinions rubber stamped by the Courts. In effect, they may grow fat and lazy so to speak. In order to effectively challenge a well-known local expert who is a big fish in a small pond, you may be forced to hire a nationally renown expert, who is a big fish in the ocean. Unfortunately, such will likely cost you significantly more, but a favorable outcome may well depend upon it.

The effective use of an expert witness requires the deconstruction of the opposing experts opinion based on the guidelines and accepted norms which govern the particular area of expertise at issue. While the ultimate conclusion of an Evaluator who fails to follow accepted protocols and analytic process in their professional community may comport with substantive justice to a higher degree than the opposing expert, their failure to abide by professional standards and norms in reaching their conclusion may result in their opinions being unpersuasive to the ultimate trier of fact, i.e., the judge, who, not knowing For instance, a Child Custody Evaluator's Report and Recommended Order will often be subject to attack where they failed to follow the APA's guidelines, or the normative and accepted protocols and analytic process in the psychologic community. Moreover, if you are opposing an Evaluator's opinions, then hiring an expert witness who knows how to use the protocols and professional guidelines against the Evaluator's opinions may greatly benefit you. Conversely, where a party supports the Evaluator's opinions, but recognizes that the Evaluator's means of arriving at the same are subject to attack, the choice of the right expert witness may help them to use the psychological data (a term of art for evidence) presented to the expert to shore up the Evaluator's opinions and Recommended Orders. The same principals hold true for forensic accounts, real property appraisers, reasonable compensation experts, and almost all other experts.

In order to effectively use your expert witness, you will also need an attorney who is well-versed in the effective use of experts, the Evidence Code, and, often, your state's Business and Professions Code. It is my experience, as a former Civil Litigation attorney for one of the ten largest firms in California, and, for one of the largest medical insurers in the nation, that there are few Family Law attorneys who can effectively do this. In choosing your Family Law attorney, make sure that the attorney you chose has a strong history of effectively using expert witnesses. This is especially true where the disputed issues requiring expert opinion are of central importance to your case, and, as is often the case in Family Law matters, your life, and perhaps the lives of your children, moving forward.