Reprint from Family Lawyer Magazine with permission.
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?
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.
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.