Does an Expert Witness’ Opinion Depend on Who Hired Them?

An expert is someone who brings a specialized body of knowledge and experience in a field not easily understood by the general public. Experts in divorce are diverse and can opine on many different topics.

What issues does an expert witness in a divorce case address?

An expert witness in a divorce case can address various different issues, including the mental health of a party; the best interests of the children relative to how to spend parenting time with each parent and which parent may be better adept at decision making on a variety of topics; valuation of real estate, business interests; perquisites of a highly compensated executive and how to divide these assets; the value of trademarks or copyrights and just about anything else addressing the individual issues of the participants in a divorce.

Once qualified as an expert, and assuming the lawyer and expert have followed the rules requiring disclosure of their opinions and the bases of those opinions, the expert witness’ opinions come before the court. But the court is not mandated to accept the expert’s opinions. If both parties have brought their own expert witness to court, and if the two opinions are miles apart, the court can use its own judgment and knowledge to choose which opinion to accept.

Bias in the Courtroom

The question here is one of “bias” at best or “hired guns” at worst. Books have been written on this topic, including “Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice” by Margaret A. Hagen (HarperCollins, 1997). The title leaves little doubt about the author’s perspective. Ask any expert and they will regale you about their “fair-mindedness and honesty” in their opinions. But in every case that goes forward to trial, experts that have different – if not diametrically opposing – views will exist. How does this happen?

Certain experts have biases that are difficult to expose. The experienced lawyer knows which parenting experts favor mothers or fathers. The experienced judge also knows this. This is why judges listen to the expert appointed by the court, hoping that the issues of bias will be lessened as it is the “court” hiring the expert – not the party. But biases are not so easily tamed, which is why one must be very careful when selecting the expert.

Outside of the child-related issues, experts are sought and influenced by the lawyer selecting the expert in subtle if not outright blatant forms of coerced positions. Eventually, those experts who bend too far will be exposed. The greatest concern is an expert playing it closer to the vest – for they are the most dangerous.

This is why mediation with truly talented mediators is such an attractive avenue to those who want to resolve cases; the experienced mediator and seasoned lawyer are often capable of exposing the outrageous opinion without the cost of a full-blown trial, but the cost is still far too great for such tactics. The business owner’s valuation will reflect the owner’s concerns and the non-owner spouse will dismiss the business owner’s claims of slow growth or lack of income.

The art of lawyering is to manipulate the facts you have to support your theory of the case. Any litigant who wants to find a “whore” will do so. Anyone who wants to choose integrity will fight for an expert who will strive for an objective opinion – and not bend the facts so far that they become unrecognizable.

Work with your lawyer so that you can handle it if your ex-spouse chooses a hired gun. Insist on hiring an experienced, unbiased expert witness who can convey their opinion in an intelligible manner with logic and facts that are honest and supportable. If you do this, your side will win the issue! You have the choice to select the manner in which you and your lawyer will present your side of the case. Honesty goes a long way in court – much further than you might imagine.

Joy Feinberg has practiced family law in Chicago since 1980. She is known by her clients and peers as a tenacious, trustworthy attorney and advocate, both in and out of the courtroom. An AAML Fellow, Joy served as President of the AAML Foundation; she also served as President of the USA Chapter of the IAML from 2014- 2016. www.boylefeinbergfamilylaw.com