Experts in Family Law: Have Gun Will Travel
By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol. 16, No. 2)
Contra Costa County: The Hon. James H. Libbey
The ideal expert is someone who can present riveting testimony, be charming, have every possible degree, an impressive array of awards, and firsthand knowledge of the people, places and things at issue. If you find such an expert, let me know. Joanne Ross Wilder, Choosing the Right Expert Witness, Family Advocate, Spring, 1990.
In an atmosphere of rabid obsession with case management and settlement, it seems we have relegated good old-fashioned trial skills to Jurassic Park with all the other dinosaurs. Nonetheless, we occasionally still need our experts, and they need us to help them put their best collective foot forward. FLN was fortunate to be able to discuss this topic with three highly respected, very experienced judicial officers who have literally dedicated themselves to the enhancement of family law.
Experts? Let's hear from the judges:
To appoint or not to appoint, that is the question
San Mateo: I try to appoint my own expert whenever possible to derail the problems early on, and to ensure a more factual exposition. Any time you can eliminate a level of the adversary process, you're closer to good decision making. When you have two experts directed by their client's goals, the court's work and its margin of error increases exponentially, having then to sort through and compare not only differing conclusions, but underlying assumptions as well.
I may deny a party her request for an expert where I have already appointed one, particularly in a child custody situation. In the case of the over-interviewed child, I will always appoint an expert and preclude either side from getting his or her own. I am happy to say that I have been "writ-ed" on this issue, and the writ was denied.
There are obviously different policy considerations in a business valuation or an accounting. I may limit or deny additional or rebuttal expert investigation where there is not enough money to pay for or it or where the issues simply don't warrant it. However, I will in that situation give sufficient fees for the "expertless" spouse to take a "peek" and then tell me why he needs his own expert.
Contra Costa: Parties are entitled to hire experts to help them with their litigation. For the most part I'll grant these requests and order the other side to cooperate. In custody cases, I try to get to the parents before they hire their experts and will often recommend or even appoint an evaluator I know to be qualified. If the parties don't like the results, my response is "You can hire your own experts, but guess who I'll believe."
Placer: I agree that litigants are entitled to their own experts on every issue except child custody. If it looks like a child is in danger of repeated evaluation, I will appoint an attorney for child.
At some point in every relatively complex case, the court should exercise its power under the recently-amended section 4370.5 to control the hiring of experts; one way to do this is to allocate fees to court or jointly-appointed experts as opposed to funding the war between the hired guns.
I've never denied a vocational examination, even in the case of 55 year old spouse in a 35 year marriage who has never worked outside the home, where the other spouse appears to be clearly on hook for rest of his life. The party requesting it is almost always willing to pay for it, and I'm always willing to order it,
What is a good presentation generally?
Contra Costa: The first question I ask myself when I'm looking at experts on the stand is "are these guys selected by the court, jointly selected by the parties or are they hired guns?" If the expert has been hired for the trial, then as far as I'm concerned he's a hired gun and I don't care if it's someone I've felt to be quite reliable in the past.
You tend to fasten on to a well organized presentation as a format for your decision. When you are dealing with a reasonably large number of properties and issues, your fear is that you will forget something. Therefore, the expert who has put together a well organized proposed decision of some type on his issue that covers everything - whether it's part of the trial brief, proposed judgment or just his summary - I'll use that, even if I don't use his numbers. It would also be helpful if the experts got together and followed the same structure or format in preparing their reports.
I admit these summary sheets and compilations on the spot at trial. Anyone who really expects a judicial officer to go through the piles of records he has submitted should go find a rent-a-judge who'll charge him by the hour. The only real basis for an objection to summaries is "I haven't seen this, Judge." So attorneys should show their compilations and summaries to other side two or three days before trial; and then the only basis for an objection is inaccuracy.
Placer: A good presentation includes a very clear written exposition as to how the expert arrived at her conclusion: something that is easily followed by the court. I absolutely endorse the use of requested rulings and written materials from the experts, especially something that could be directly incorporated into a statement of decision.
I always over-rule an objection to a summary, even if it's of your final argument on the issue the expert is testifying about. It doesn't have to be admitted into evidence, but can be proffered as a guide or aid to the court. It's dangerous when a judge takes a matter under submission without summaries and clear requests. What we've heard doesn't stick unless we are tremendous note takers or we have a verbatim transcript of the trial. There's nothing more aggravating than to hear after your decision: "Your honor you forgot to include x y and z issues".
San Mateo: A bad presentation is submitting stacks of documents without providing some kind of work product either by charts or summaries, and without some statement about why I'm supposed to be - or don't have to be - dredging through the documents. I take pretty good notes, but still there is no question that when all is said and done, the summaries glow like little night lights. These make it much easier to review the case and get a grasp; the inclination then is to use that work product as the basis for decision making. San Mateo has no local rule requiring an exchange of summaries and compilations, and I overrule objections to them. However, if I am alerted early enough in the case, I will suggest that each counsel show the other everything he or she is going to try to get admitted.
My pet peeves are: 1) counsel who won't stipulate to an expert when it is really obvious the qualification should happen, and 2) expert witnesses who get caught up in the adversarial process and get nasty on the witness stand. This just strains their credibility.
Tell me what you want. I was told early in my practice that judges aren't that bright; be that as it may, we do need your help. Always politely suggest what finding(s) you want from your expert's testimony, what order you want to see on his issue. If your proposed order is the last thing the judge hears or sees - and it makes sense - it will probably creep into the decision.
What is a good presentation in a specific area:
Contra Costa: A good forensics expert is experienced, willing to go through the process, confident of her opinion, delighted (sometimes too delighted) to explain it to you, and able to isolate differences between divergent testimony. The ability of the expert simply to explain his position clearly to a judge who isn't knowledgeable in the field is very important. Again, visual aids and charts, compilations, spread sheets are very beneficial. I had a forensic expert take the stand with a calculator tape in his hand; that was his report and it wasn't very helpful.
The quality of expert testimony in the custody arena varies widely. Sometimes the professional can be helpful but often is securely in the corner of the custodial parent, in that this is the parent the psychologist has been routinely dealing with. In my court, an expert does not qualify to testify without having seen the child and both parents.
San Mateo: Family Court Services has reduced the need for experts in custody cases, and has established a higher standard for evaluations by narrowing the focus and setting certain specific limits on the types of evaluation that are going to be done. The mediators weed out run-of-the-mill cases that otherwise might have gone into evaluation, and actually take the place of experts for the most part. However, no court is or should be a "rubber stamp". Even in recommending counties, judges must be aware of the limitations on the time and resources of court mediators.
Good vocational evaluators are those who have not been directed by one side or the other. They are most helpful in their testing and counseling capacity, rather than as experts, especially in situations where the spouse has some job experience - either prior to or during the marriage - and some skills. I like to hear reasonable testimony about retraining programs, duration, costs and what the market is for these particular job skills. The weight of the testimony of a vocational examiner diminishes with each adversarial or judgmental word.
Placer: I like to hear what a vocational examiner has actually done to determine whether there really is a market for skills of person he has evaluated. I had a vocational examiner once testify that the spouse was an outgoing person with good people skills and ought to enter the real estate market. I muttered under my breath "On what planet?" I also rely on the vocational examiner for diligence followup; the parties themselves are not capable of telling me what they've done and whether or not it has been appropriate.
I ordinarily don't hear accountants hear testifying in spousal support cases, except on those occasions when I need assistance to get at the standard of living, the pattern of spending during and after the marriage, and hidden income. However, sometimes putting an accountant on puts a client at risk if that client is also hiding his income from the IRS, for example. The vitality of the stipulation to any reasonable support is somewhat questionable given the new child support statutes, but in these cases I will still block the investigation into a party's expenses and income where we're only talking spousal support.
What role do you personally play in the expert's presentation?
San Mateo: I will occasionally interfere with an expert's testimony, particularly in child custody and sometimes during a vocational examination. If I don't think I'm getting all the information, I may ask the expert to go back and take a look at the question from a different angle, re-interview, or determine an overlooked fact and give me a further report in sixty days or so. This is so especially where the reports might have been rushed through, the evaluation is too early, or there are some major changes in the wings, such as a move.
I don't think I've ever done this with an accountant. I have, however, said "I'm not going to listen to two days of this stuff". In fact, I'll tell them "I'm not going to listen to anything until the two of you go into a room and come out with the areas in which you agree and disagree".
Placer: I don't normally interrupt experts. I will allow them to complete their presentations; then, at the conclusion of the direct examination I will ask my own questions and explore areas that are confusing or are not covered. If I feel that an expert has failed to do something essential, I will appoint another expert. I don't send an expert "back to the drawing" board, because if they've missed the ball in the first place, I have lost confidence and wouldn't send them back to repeat a bad job.
Contra Costa: If I have a two-hired-gun situation, then I'll want to go through a settlement conference or two to understand where they're coming from. I might find that what is keeping them apart is a philosophical dispute, such as the basis for a cap rate. Then this is what you'll need to focus on, rather than spending all day receiving unnecessary evidence.
How does the law fit Into expert testimony
...[no general rule] authorize[s] an "expert" to testify to legal conclusions in the guise of expert opinion. Such legal conclusions do not constitute substantial evidence. Downer v. Bramet 152 Cal.App.3d 837, 841.
Placer: The law doesn't sneak into expert testimony too often, but a lot depends on the credentials and background of person testifying. I rely on the stability of a known expert's methodology; these guys tend to be fairly conservative. An expert, in contrast to attorneys, cannot be caught speaking out of both sides of his mouth. I find it effective to cross examine an expert with his own deposition taken in another case in which he has used a completely different methodology.
To get out from under the law, the expert is going to be important in the "move-away" case to the party desiring to relocate. To remove the case from the conundrum of McGuinness and Carlson, the expert must show that the detriment to the child from a change of custody far outweighs any benefit that the child is going to get with the continued contact with the non-moving parent.
Contra Costa: It depends on the case. We had a rather infamous trial in Contra Costa on whether or not the community had built up an interest in throwing knuckle balls. The law played a vital part, believe it or not, in the experts' testimony, and we had quite a bit of fun with this.
Custody experts are particularly ignorant of the law. Every custody evaluator seems to recommend therapy for everyone, without the faintest idea that the court's jurisdiction to order this is limited. I agree with Placer that the law is going to play a big part in the Carlson/McGuinness situation; because this is new and it is hotly disputed as to how far we can go with it, the expert will have great impact on decision. We are often asking the evaluator in this situation to balance the best interests of the children with the custodial parent's success or lack of success in his/her career. They aren't used to doing that, don't know how to do it and I honestly don't know how it can be done. The law doesn't really assist.
San Mateo: The law does enter into the expert's testimony, and it is ideally argued by the lawyers, not the witness. There is a fine line you need to draw in allowing experts to actually testify about the law - or as to whether or not they have applied it.
Judges do like to have some real guidelines; legislation should provide the blanks for experts to fill in. I don't think we really have this guidance right now in the move-away cases. Statutory and caselaw doesn't do anything for us really except to say "Here are all the factors you're supposed to look at: now look at them."
Experts and attorney's fees
Placer: The effective use - and misuse - of experts should be taken into account in making fee awards. This may be appropriate where an expert has been so far out of the ball park that the other side just couldn't risk not having one.
I'll also take into consideration the complexity of the issues, which may force both sides to work diligently to discover what's going on, and in which the high cost of experts has been legitimate. However, if it looks like one party is malicious and punitive, that party may find himself paying all the experts. On the other side of this coin, while both parties have a right to have experts to inquire, it's tough where all of the experts are appropriate, but are spending one spouse's money.
The court must also consider the attorney's malpractice risks. An attorney has to do some investigation of the case, and make some educated assurances to her client that she's not promoting settlement just on the basis of the other side's self-serving representations. If it looks like parties need further inquiry, I'll probably compensate that expert.
Are attorneys really necessary?
Placer: The attorney is the key to the process. He needs to be informed in the area he is going to cross examine in, and should have his own expert assist him in peeling apart the witness. The best job I have seen was the cross examination of an expert valuing a nursery business. The attorney was very familiar with the way in which a nursery business operated, and was able to expose the expert's lack of knowledge and invalid assumptions.
Contra Costa: Definitely, the effectiveness of the expert depends on the effectiveness of the attorney(s). The degree to which experts can be destroyed on the stand depends on the matters on which they're being interrogated. I see a lot of relatively meaningless - and frankly irritating - cross examination done that doesn't relate directly to judge's decision.
San Mateo: There are those who might not believe I really think this, but yes, attorneys are still necessary to the proceedings. Experts can't tell their story by themselves; this is not their job, and they're often not capable of effectively presenting their findings. It is ultimately up to the attorneys to draw them out or discredit them.
Ed.: In sum, be informed, be civilized and summarize.