An expert witness can be a great tool to use during litigation if a dispute exists in your family law case. Expert witnesses are a familiar staple in litigation that you may have seen on television or in movies portraying a financial advisor, physician, or other professional. Expert witnesses can come in handy for a variety of family law issues. Child psychologists are instrumental in determining the best interests of the child for custody matters, while a CPA could be helpful in determining value for property in alimony disputes. Also, vocational experts are helpful in testifying to someone’s earning potential in respect to their ability to pay alimony or what they may be entitled to in alimony. This article will attempt to help you determine if you should consider hiring an expert, understand the costs involved, and how a witness qualifies as an expert.
You or your spouse can hire an expert witness or the expert can be court-appointed. In the event that the court appoints an expert (either its own or one that both parties agree on), the expert must be informed of his or her duties in writing and must advise both parties of any findings or conclusions he or she comes to. If you hire an expert on your own, typically your attorney will handle the selection process, negotiating, payment, and will facilitate contact with the expert.
In selecting your own expert, it is important that the individual meet the following guidelines in order to qualify as an expert:
The subject matter of the testimony must relate to the expert’s specialized field. An expert may testify if he has specialized knowledge that will assist the court. Some experts will be qualified because of their education, while others might have developed their knowledge through professional and life experiences.
The expert’s qualifications and skill must show that the testimony is reliable. Under North Carolina Law, testimony is reliable if it is based on sufficient facts or data; is produced through reliable principles and methods; and the witness applied principles and methods reliably to the facts of the case.
In regard to the reliability of a method used by an expert, the court will look to whether the theory has been tested, whether the theory or technique has been subjected to peer review, the known or potential rate of error, and general acceptance within the community.
Your attorney will assist you in making sure that the expert you choose for your case meets these qualifications.
Once you determine that an individual meets the qualifications to be an expert, you must then define the role that the expert will play in your case. Prior to the expert witness offering their opinion, there is generally a written agreement drafted to establish the role of the expert in the case. An expert can be important in all stages of litigation. Sometimes an expert is hired to gather information, while others may be asked to submit an official report of their findings. In less common circumstances, experts are deposed by one or both parties, and some experts will testify at trial. The expert’s services can be very minimal, or they can have a large role in your case. In putting limits on the role your expert will play in you case, it will assist you in determining whether your expert is a “testifying expert,” a “consulting expert,” or both.
The rules governing discovery of experts in North Carolina differentiate between these varying categories of experts. In North Carolina, consulting experts are hired to review a file as well as assist in the preparation of litigation. The identity and opinion of a consulting expert who is not going to testify at trial is not discoverable. However, a party can obtain the identity of, substance, and facts pertaining to the other party’s testifying expert in discovery through interrogatories. According to Rule 26, through an interrogatory, a party can require “[1] any other party to identify each person whom the other party expects to call as an expert witness at trial, [2] to state the subject matter on which the expert is expected to testify, and [3] to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”
Some expert witnesses may be considered testifying experts and fact witnesses. For example: a school psychologist at a child’s school witnessed a particularly heated exchange between the child’s parents on school property. If called to testify simply about the argument, this witness would be a fact witness. If the scope of the testimony expanded to how this could impact the child, she would then transition from a fact witness to an expert witness. One important thing to note is that if your expert is testifying as a fact witness, she is not owed a fee, but if she is testifying as an expert, the rules for payment of experts will apply.
The written agreement (typically drafted by your attorney) that sets out the role your expert will play also should specify how the expert will be compensated and when payment is due. Experts can charge an hourly rate or they can charge a lump-sum fee. For services like depositions or trial appearances, some experts increase their hourly rate or charge by the half-day or day. The rate is usually based on factors that include the experience of the expert and the nature of the task. These fees can either be paid up front, as work is completed, or in full upon completion of services. Also, unlike with some attorneys, an agreement to pay an expert cannot be based on whether or not you prevail at trial. Therefore, the terms of compensation in your written agreement are not contingent on whether or not you win your case.
In the event that you do win your case, there are some situations where the losing party will pay your expert fees. By statute, the court can order the losing party to pay certain expenses, called taxable costs. “Taxable costs” simply means litigation-related expenses that the winning party is entitled to as a part of the court’s award. With expert fees, a judge can award costs for reasonable and necessary fees of expert witnesses for actual time spent providing testimony at trial, deposition, or other proceedings. This is limited to fees associated with the expert’s time providing testimony at trial, deposition, or other proceedings. Additionally, in order for the court to award expert fees, the expert must have been subpoenaed.
Lastly, if the court appoints an expert witness, it is up to the court to determine the terms of payment. Court-appointed experts are entitled to “reasonable compensation” that is to be paid in a method decided on by the court.
In summary, expert witnesses can be a valuable tool throughout litigation. If issues arise in dealing with your expert, such as the expert refusing to comply, the expert may be in breach of contract or found to be in contempt of court.