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The Divorce Encyclopedia
Expert Witness

Term Definition Expert Witness - a professional used to help a judge reach a decision.
Application in Divorce These experts include appraisers, counselors, evaluators, accountants. In a contested divorce, where, for example, child custody and property distribution is at issue, expert witnesses help a judge make a determination of the best interest of the child or the value of a professional practice.

An expert witness is a paid witness enlisted by a party in a dispute because he or she has knowledge and competence above that of an average person. Sometime called a forensic accountant or asset searcher or a certified licensed investigator (CLI), a forensic accountant analyzes marital estates for evidence of economic misbehavior. For example, a forensic accountant examines UCC filings for evidence of collusion with a business partner in hiding or misrepresenting marital assets.

Over the past generation, the use of experts and expert testimony has increased the number of situations in which an expert may have some degree of connection with both parties in a dispute. This can become problematic for a party when, for example, an expert may be called to make an appraisal of a professional practice.

Unlike attorneys, expert witnesses are not governed by a comprehensive set of rules in regards to conflicts of interest. In general, for an expert witness to be disqualified, the party must prove that the expert had a "confidential relationship" and that confidential information had been disclosed to the expert. Casual or preliminary discussions with an expert are not enough in themselves to establish a confidential relationship that would exclude the expert from working for another party in an adversarial proceeding.

The use of expert witnesses adds greatly to the cost of litigation, but complex cases, such as those involving the distribution of a private business or a professional partnership, may put one spouse at a disadvantage. The spouse who is unfamiliar with the business is all but forced to enlist expert witnesses.

In many jurisdictions, courts have the authority to award what is called "suit money," which is money necessary for the party to carry forward or defend a matrimonial action. A majority of courts have held that it is within judicial discretion to order one party to pay the other party’s expert witness fees. In general, the standard for awarding expert witness fees is the same as for the award of attorney’s fees: the fees must be "reasonable and necessary."

The National Conference of Commissioners on Uniform State Law (NCCUSL) endorses the practice of using court-appointed expert witnesses. Courts in some jurisdictions appoint experts because a neutral expert means that he or she is no one’s hired gun. "The overall effect is that the costs to litigants are minimized, preserving more of the marital estate. and the likelihood of a negotiated accord is maximized, thereby greatly reducing trial time," said a New York court of appeals.

See also Poisoning the Field of Contenders.

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