Divorce Attorneys And Dueling Experts

By Author: David Stein
Total Articles: 16
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There was recently a seminar for San Francisco Divorce Lawyers where the topic was the use of experts in presenting your client’s case.

California Law allows for 2 kinds of witnesses. The first type of witness is known as a “percipient” witness. That is someone who can testify as to what they heard, saw, smelled or otherwise “perceived” with their own senses.

The second type of witness is someone who through their education, experience or other special learning can give opinion as to what was, or is, likely to happen given a specific set of circumstance. These are known as “expert witnesses”. For example, an expert in real estate valuation can come into court, have their qualifications set out and, if they pass muster, “opine” as to what a certain piece of real estate would fetch at open sale. Another example is the “forensic accountant” who can give testimony as to the value of a family business so that it can be divided in a divorce. Sometimes the expert is a mental health professional testifying as to best interests of a child and the appropriate custody/visitation allotment between ...
... a divorcing mother and father.

There was much spirited discussion and quite a bit of chortling amongst the gathered San Francisco Divorce Attorneys. The prevailing attitude on the subject is that smart San Francisco family law attorneys look to engage a “hired gun” that will conform their opinion to the needs of the attorney who hires them.

Fortunately, one doesn’t have to go to law school to learn about expert witnesses. An “X” is an unknown quantity. A “spurt” is a drip under pressure. So an ‘Expert” is some unknown drip under pressure!

Believe me, that line has been used many times when trying to convince a jury or judge that an expert opinion should not be given much weight or consideration.

While on one hand, it is true that in a marital dissolution there may be issues that require an expert to assist in valuation. On the other hand, the notion of “dueling experts” is irrational. Although people of good faith may disagree as to the valuation of a business or piece of property, to have 2 opinions that are miles apart says more about the litigants or divorce lawyers then about the valuation issue being presented. It is also a huge tactical error to think that if you can influence an expert to testify to an extreme position and your opponent is closer to the actual number, that the judge will find a number “in the middle” that greatly favors your position. 99 times out of 100 a judge will pick the number that is rooted in reality and disregard the inflated number completely.

In a mediated dissolution situation it is not necessary to engage 2 experts on any given issue. Instead, the neutral mediator will engage the required expert and charge that professional with developing a square, closest to reality opinion as is possible. In the mediation situation the expert works for the neutral mediator and has no interest in advocating or favoring one side or the other.

Not only is this scenario less expensive because only one expert is engaged, it is also reassuring to the participants because there is enhanced confidence that the opinion is as free as possible from bias or undue influence.

David D. Stein has been an attorney for over 20 years, among the top divorce lawyers and is the founder of Liaise® Divorce Solutions. [www.LiaiseDivorce.com], which is San Francisco Divorce Attorney. He is a trained mediator, dispute resolution specialist, and lecturer on non-violent conflict management techniques and tools.