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Experts in Family Law: Have Gun Will Travel
By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol.
16, No. 2)
Judicial Participants:
Contra Costa County: The Hon. James H. Libbey
Placer County: The Hon. James D. Garbolino
San Mateo County: The Hon. Rosemary Pfeiffer
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.
Effective cross exposes the expert's scrambling up of significant facts
or failure to inquire in pivotal area. Such as "Well, did you go and look
at the location? Why not? Would it surprise you to learn that the plant
has burned down?"
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.
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