We asked lawyers and other family law professionals on our website to help us answer the question: “Do expert witnesses’ opinions depend on or align with the party who hired them?” Six lawyers and three forensic experts accepted the challenge and submitted short articles to us; below, they discuss the Good, the Bad, and the Ugly of expert witness selection and testimony.
Diana Shepherd, CDFA®, Editorial Director of Family Lawyer Magazine
An expert opinion is supposed to be the product of an expert’s independent judgment – uninfluenced by who has retained them – but would their opinion change depending on which side hired them?
Family lawyer Gary Joseph, a managing partner with MacDonald & Partners LLP, says that courts “continue to struggle with expert witnesses and the frequent alignment of their opinions with the positions of the party who retained them. In some cases, trial judges have openly wondered whether an expert’s opinion would be different if they had been retained by the party opposite.”
So: Do Expert Witnesses’ Opinions Depend on Who Hired Them?
We asked lawyers as well as financial and other experts who have testified (or have witnessed expert testimony) in family law cases to submit short articles about their experiences on one or all of these areas:
- Do expert witnesses’ opinions often align with the party who retained them – even if that opinion stretches credulity to the breaking point?
- Do you know of a case where an expert has produced an opinion favorable to their party – even though the facts did not support that conclusion?
- When added to the already high cost of family litigation, do you believe that the expense of biased competing expert opinions is a significant barrier to access to justice to clients without extremely deep pockets?
- If this practice is rampant in family law litigation in your area, what do you think could be done to ameliorate or eliminate it?
Here’s what six lawyers and three forensic experts had to say about whether or not expert witnesses’ opinions depend on who hired them: both from a litigator’s point of view and from expert witnesses themselves.
Do Expert Witnesses’ Opinions Depend on Who Hired Them? The Litigators’ Viewpoint
Biases Can Be Difficult to Expose and Hard to Tame
By Joy M. Feinberg, Family Lawyer
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 (HarperCollins, 1997) by Margaret A. Hagen. 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 who 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 an 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 honest expert: one who can convey their opinion in an intelligible manner with logic and facts that are supportable. Honesty goes a long way – much further than you might think.
Joy Feinberg has practiced family law in Chicago since 1980. 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/joy-m-feinberg
Trimming the Evidence to Fit the Facts?
By Justin Whiddon, Family Lawyer
Depending on the case facts, issues, and evidence complexity, expert testimony is vital to prosecute one’s case or defend a position. Whether it is clinical or technologically related, litigators and their clients may not have the expertise needed to provide the court with an opinion that can be relied upon by the court to adequately consider the evidence presented. Additionally, certain evidence will not survive objection without the proper expert.
Privately-retained experts have been widely criticized because of the potential bias that may accidentally seep into the opinion. The expert is a retained service, just like any other, and a satisfied customer means repeat business. Obviously, this does not mean that all privately-retained experts are willing to put their license and reputation on the line for an attorney; however, based on certain experiences, some are flirting with misconduct, or, at the very least, trying extremely hard to provide a favorable opinion – scientifically sound or not. Many times, they are attempting to fit a square peg in a round hole. The facts do not fit, but experts – usually through eloquent persuasion and carefully coached questioning – trim the edges off the square peg to make it fit.
It is hard to say, “an expert’s opinion is contingent upon who hired them,” but it is easy to say that the exchange of funds influences the size of the gray area. The best way to combat an expert edge-trimmer is to depose the expert prior to trial and determine their position, and, ironically, find an expert that disagrees with the opinion. If you can expose the flaws in the expert’s opinion, then you have a great shot at reducing their credibility.
Justin Whiddon is an Associate Attorney at Balekian Hayes, PLLC in Dallas. He earned his law degree at Texas Wesleyan University School of Law (now Texas A&M University School of Law). www.bh-pllc.com
Impartiality Is Often Compromised in Exchange for Money
By William N. Sosis, Esq., Family Lawyer
This issue depends on the expert. It should be of no surprise that independent judgment and impartiality are too often compromised in exchange for money. Mercenarism, for example, has been an international norm for centuries.
So why should anyone expect expert opinion witnesses to be different, especially in adversarial disputes?
Experts often compromise their field of expertise to the point where their opinions can be construed as client advocacy masquerading as objective analysis. They know that if their opinion can ruin their client’s case, no one will hire them. Their reports and opinions, therefore, only provide evidence and arguments that support their client’s cause or position.
While courts have expressed concerns about expert venality and partisanship since the late 19th century, expert selection remains largely at the discretion of the parties.
In New Jersey, for example, divorcing parties can use religious experts to testify on the validity of their Islamic marriage contract. These contracts may include a mandatory payment (mahr) paid by the husband to the wife in the event of death or divorce. As you might expect, their opinions on whether the mahr should be paid in addition to equitable distribution can vary depending on who hired them.
William N. Sosis is in active general legal practice in Rochelle Park, NJ. He has over 25 years of experience in information technology (IT), working as a consultant, manager, and business analyst for various Fortune 500 companies. www.sosislaw.com
The Problem with Experts
By James Gray Robinson, Esq., Family Lawyer
In over 25 years of trial practice – including divorces – in North Carolina, one of my biggest peeves was the blatant subjectivity of the experts who were called to testify by one side or the other.
I was primarily engaged in business litigation and high-dollar divorce cases that required valuations of various assets that were not easily valued. These included closely-held businesses, retirement funds, real estate, and other intangible assets.
It was fairly obvious in the area I practiced that lawyers had their “go-to” expert: someone they used all of the time for the types of cases they tried. The most blatant were the divorce lawyers who had CPAs (rumored to be on their payroll) that evaluated intangible assets for equitable distribution purposes.
Their opinions often were blatantly skewed for their client’s benefit. I often had cases where the difference between the valuation of a marital asset approached millions of dollars. Several of these experts were well known by the judges to be subjective and unbelievable. The judges let them qualify as experts and testify anyway.
Many of my clients were “cash poor,” which means that their marital assets may have been worth millions of dollars (closely held family businesses) but they didn’t have the cash to pay retainers and large expert witness fees, much less the attorney’s fees involved. Whoever had the most cash usually got a better ruling. It was frustrating at best.
I believe that family law cases should have mandatory mediation without a trial with a panel of three mediators. Court-appointed experts from a panel would establish values and be paid like public defenders. They may not be the best and brightest, but at least they would be objective.
James Gray Robinson, Esq. was a third-generation trial attorney, specializing in family law, for 27 years in his native North Carolina up until 2004, when he became a business consultant. At the age of 64, he passed the Oregon bar exam and is again a licensed attorney. www.JamesGrayRobinson.com
Hired Guns vs. Objective Experts
By Lynne Strober, Family Lawyer
Many cases in our Matrimonial and Family Law practice involve the use of joint or neutral experts; our attorneys often work closely with forensic accountants, appraisers, psychologists, mental health professionals, and other experts should the need arise.
In my jurisdiction, some experts have earned a reputation for being hired guns who are willing to skew the analysis to the retaining party. Some attorneys use biased experts and others work exclusively with experts who are able to be objective.
We hire the latter because they are capable, thorough, and will produce reliable information that will actually be useful in facilitating a resolution of the case. Most attorneys know which experts are reasonable and reliable and which ones are so biased as not to be helpful. Courts also learn the difference between unbiased and biased experts.
When experts are less than objective or use different methodologies from each other, their results can be miles apart – which tends to polarize the litigants and does not pave the way towards an equitable resolution to the case.
Using a joint expert to value an entity or entities is not always appropriate, however. For example, in a case where there is a cash business without complete records, or a lifestyle that is not substantiated by the earnings, it can be necessary for each party to have their own expert.
When the two experts are not in agreement, there are various ways to try to resolve the case. The two experts can select a third to address the differences, or you can utilize mediation to reach agreement, or you can narrow the issues of controversy with regard to the reports to limit the unresolved issues.
If the divorcing spouses lack the funds to each hire their own expert, they can agree to use a joint expert who is competent and objective.
Experienced, ethical attorneys will use a cost-effective and reasonable approach based upon the complexities of the case and the capacity of the parties to fund the litigation. It is best to set the case on a path to achieve a fair resolution for the client as soon as possible and to steer the case to conclusion.
Lynne Strober is a Fellow of the American Academy of Matrimonial Lawyers. She has served in numerous leadership positions, including Chair of the NJ State Bar Association Family Law Section where she oversaw the certification of matrimonial attorneys in the state. www.lawfirm.ms
Can an Expert’s Opinion Depend on Who Hired Them? Without Question!
By David Carton, Family Lawyer
As a practicing lawyer in New Jersey for over 25 years with a specialization in family law for the last 17, I have seen my share of experts: everything from court-appointed experts to neutral experts to custody and parenting-time forensic experts to reconstruction experts and so on. The list is endless.
Can an expert’s opinion differ based on who retained them? Without question. This is not to suggest that a party’s expert would write a report with a conclusion exactly the way the party retaining them would ideally like to see.
Experts are hired to provide their opinion based on the facts presented to them on issues where there is no certain answer. If there were a certain answer, a judge could take Judicial Notice of the correct answer under New Jersey Court Evidence Rule 201.
Two factors play an integral part of every expert’s opinion:
- An expert retained by a party would take as factually accurate what that client tells them and use that as a basis for their opinion.
The concept of the expert’s judgment. - Whether it is the Cap rate to be used in valuing a business, the reasonable compensation of an employee, what is ultimately in a child’s best interests, whether an injury is permanent or not, who was at fault for an accident, what the value of a home is, or almost any other issue, there is leeway in an ultimate conclusion based on that expert’s own personal opinion, facts reviewed, or even potential biases.
As part of a lawyer’s due diligence, when a client seeks to advance a certain position that needs the support of expert testimony, that attorney should determine if the expert is able to:
- participate based on their credentials and qualify as an expert in that field, and
- write a report to offer an opinion supporting that client’s position. To fail to vet the client’s position in advance may cause the client to pursue a claim that they are unable to prove. If an expert is retained and a report not provided in discovery, it can result in discovery motion practice under New Jersey Rule 4:10-2(d)(3).
Cost is relevant in every case. Experts are professionals and deserve to be paid for their time to review material, conduct independent research, and prepare a report – and potentially for their time during deposition and trial. Certainly, parties without the means to pay them are at a disadvantage, especially if the issues in dispute cannot be adjudicated by a court without expert testimony.
The answer? All family law practitioners and judges wish that there was a clean and simple answer. In some counties, a custody neutral assessment is used where there is a custody dispute. More and more frequently, financial experts are being retained to prepare schedules without the need for an expensive and formal report. Another suggestion is that when divorce complaints are filed, any case that may require an expert should be given a Complex Track designation and a Discovery Master should be appointed.
David Carton is a Certified Matrimonial Law Attorney who has practiced Family Law since 1995; he regularly appears before Family Court Judges throughout New Jersey. He is Co-Chair of Mandelbaum Salsburg’s Matrimonial and Family Law practice group. www.lawfirm.ms
Do Expert Witnesses’ Opinions Depend on Who Hired Them? The Experts Weigh In
Be an Advocate for the Truth
By Rod Moe, Forensic Accountant
My opinion as an expert witness on a case is not influenced in any way by the attorney or anyone that hires me in a matter. I am not an advocate for anything but the truth – not the parties or attorney in a matter. My role is to help the court to understand the financial matters regarding a case. I do not subscribe to stretching the truth on any matter.
There may be differences of opinion between the lawyer and the expert, but we should never take any position that is favorable or unfavorable to a client based upon who the attorney is.
We are not the judge in any case; our role is to provide credible, objective, and unbiased financial information to the court to enable them to make a decision in the matter. The admissibility and the veracity of facts in a case is determined by the judge based upon their experience, knowledge of statutory and case law, and the way information is presented to the court by the lawyer and the expert.
The role of an attorney is that of an advocate for their client’s most favorable position.
The standard for the selection of a financial expert should be based upon that expert’s ability to present financial facts to the court based upon their knowledge of financial information and the way that information relates to the law.
The attorney is the “Leader of the Orchestra”; as their expert, I can be engaged to present financial information to the court with no other expectation other than as being a credible, objective, straight shooter when it comes to the facts.
Rod Moe is a Certified Forensic CPA with 45 years of experience in tax and accounting. He provides consulting services related to legal matters, including divorce. Rod is also an accredited Business Valuator and an expert witness who has worked with many divorce and family lawyers in Florida. www.rodmoecpa.com.
Do Not Jeopardize Your Reputation over One Case
By Timothy Voit, Financial Analyst
I have testified in both state and federal courts, and I have found that the court frowns upon an expert who alters their opinion based on who retained them. In two separate cases roughly two weeks apart, an opposing expert and I testified in front of the same judge. The opposing expert was discredited, and valuation not allowed in, as he changed his methodology depending upon the spouse that retained him.
It goes to show judges do take note of changing opinions, positions, and methodologies. That is, in effect, the attorney’s job to argue their client’s position, and their duty to present the best argument for their client, not the expert.
My recommendation, through the Certified QDRO Specialist course, is to always maintain integrity and fairness to avoid jeopardizing your reputation over one case. It is simply not worth it. Eventually, if an expert testifies enough they will be testifying in front of the same judges and those judges will eventually rely on the expert if they are deemed fair-minded.
A financial analyst and founder of the American Association of Certified QDRO Professionals, Tim Voit has testified as an expert witness regarding pension valuation and QDRO preparation multiple times. www.aacqp.org
Choose Highly Qualified and Experienced Evaluators to Avoid Bias
By Dr. Gerald Cooke, Forensic Psychologist and Neuropsychologist
Do expert opinions often align with the party who retained them?
That depends on the expert. In my experience, most of the highly qualified and experienced evaluators do not align with who retained them. We avoid this problem by requiring that we be Court Appointed based on agreement of both parties. Also, the contract the parties sign specifically states that the report focuses on the best interest of the child independent of any other considerations, including who paid the fee. Despite the agreement and court appointment status, the Court does sometimes order one party to pay all or most of the fee.
We’ve completed many evaluations where the custody recommendation went against that party. We have seen cases where an expert has produced an opinion favorable to their party – even though the facts did not support that conclusion, but it is rare with highly qualified experts. I don’t think the practice is rampant, but if more evaluators refused to conduct evaluations at the request of one party, insisting on agreement of both and/or a Court Order, then this would be less of a problem.
Do you believe that the expense of biased competing expert opinions – which commonly exceed six figures – is a barrier to access to justice for clients without extremely deep pockets?
Where do you get the information that custody evaluations commonly exceed six figures? In the seven counties in PA and NJ where we’ve conducted evaluations by agreement of both parties, the cost, including testimony is typically around $15,000. Obviously, even this amount is a barrier to many people.
Gerald Cooke, Ph.D., forensic psychologist and neuropsychologist, has conducted hundreds of custody evaluations since 1979. The practice also conducts evaluations in criminal cases for defense and prosecution and in civil cases for plaintiffs and defendants. Gerald is also a neuropsychologist. www.CookeForensicPsych.com
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