DISCOVERING DISCOVERY: THE USE OF EXPERTS
By Christine Fitzgerald, Esq.
The decision of whether to retain an expert in a family law case generally is decided either at the start of the case or in the beginning of the discovery phase. The use of an expert to assist with resolving or litigating the case may be warranted depending on the type of issues involved in your case. There are many different types of experts that can be helpful in family law cases. Some of these experts and their specific roles are as follows:
- Forensic Accountants: Forensic accountants assist family law attorneys with financial issues such as valuing a business, preparing cash flow and lifestyle analysis, calculating or capturing compensation, marshalling assets (generally when there are numerous and intertwined assets), and determining tax calculations.
- Real Estate Appraisers: Real estate appraisers are primarily used to value real estate when one party wishes to buy out the other party’s interest in real property.
- Property Appraisers: A property appraiser is helpful in a case where there is personal joint valuable property such as artwork, coin collections, jewelry, stamp collections, or antiques.
- Pension Appraisers: A pension appraiser is used to value a pension when one party has a pension and wants to buy out the other party’s interest in the pension.
- Forensic Psychologists, Psychiatrists, and other mental health experts: Mental health experts can be extremely helpful in many cases when there are custody or parenting time issues. Specifically, mental health experts perform custody or best interest evaluations, substance abuse evaluations, risk assessments, and psychological evaluations.
Once you have determined that an issue in your matter warrants or requires the use of an expert, the next step is to decide whether you wish to retain a joint expert or sole expert. A joint expert is retained as a neutral expert by both parties. A sole expert is retained by one of the parties. Generally, when one party retains an expert, the other party will likewise retain his or her own expert. There are benefits and disadvantages to hiring a joint expert or a sole expert. Some of these benefits and disadvantages are:
- Cost: When a party retains a joint expert, the cost of the expert is shared, paid from joint assets, or paid by the primary breadwinner and there is only one expert to pay, which may make for a more cost-effective use of an expert. If each party retains his or her own expert, then the parties are collectively or separately paying for two experts as opposed to one expert.
- Access to the Expert: The benefit of having your own expert is that you and your attorney can work with the expert to frame the issue in the most advantageous way within reason. Additionally, if your case is going to be litigated, your expert can assist with trial preparation. When you have a joint expert, that expert is a neutral party and cannot assist one party or strategize as how to frame the valuation, evaluation or analysis in a way that is more advantageous to one party.
- Results: In a case where a joint expert is used, there will not be competing results, which may make settling the issue easier as there are not multiple determinations or recommendations. However, the disadvantage is that depending where the case is in the litigation phase, you may not be able to obtain his or her own expert or a rebuttal expert if the litigant does not agree with the joint expert’s result.
- Resolution: Although both joint and sole experts are able to assist with settlement discussions, a joint expert is often in a better position to act as a go-between for settlement discussions.
The decision to retain an expert and whether to retain a joint expert or a sole expert depends on the specific circumstances of your case. If you or anyone you know wants to learn more about how an expert can help your case, call us today to schedule a consultation.