The use and engagement of the expert witness is often overlooked in the family law arena. However, every case, regardless of funds available, should at least have a consideration by the attorney, of whether or not experts are necessary.
Experts can not only help your client’s case, but also disarm the other side’s case in chief. Experts can be utilized before the case is even filed. And of course, they may be necessary during the course of litigation to prove or disprove a fact that is critical to your case.
Many clients come to us to help prepare for a pending divorce or if they fear a spouse is preparing for divorce. Experts such as accountants, financial planners and retirement experts can be helpful to prepare for the pending financial trauma that every divorce inflicts upon couples. An expert may also help with advising a client about debt reduction and the consequences of over-contributing or under-contributing to a retirement account. An expert may also be helpful to determine the timing of the filing of a divorce complaint.
After Complaint is Filed
Regardless if you are operating under W.R.C.P. 26(a)(2), or a court’s scheduling order, designate your experts on time. There is no better way for the opposing attorney to get your expert stricken than missing that critical and easily determined deadline. Another thing to consider: the possibility of disclosing your expert early, which may lead to an earlier settlement and result in saving your client time and money.
Experts can be helpful in nearly every area of a family law case. Here is just a snapshot:
- Property Appraisers – real and personal
- Valuation Experts – business, pension, premarital values
- Accountants – tax consequences of transfers, sales, alimony, etc.
- Forensic Accountants for tracking assets
- Medical Expert (if disability is present or claimed)
- Vocational Expert (underemployment or ability to pay)
- Financial Planner (future needs)
- Custody evaluator
- Special education teacher
- Domestic Violence expert on dynamics of abuse on children and on the victim
Challenging an expert requires getting the CV for that expert, sending a discovery subpoena, scrutinizing qualifications and opinions, and getting a competing expert when necessary.
Of course, cost is always the biggest factor. A discussion with your client that includes a cost/benefit analysis of the use of expert witnesses is always critical.
Devon P. O’Connell
Pence and MacMillan LLC