Expert Energy: Effective Use of Experts in a Family Law Case

• Author: Steven N. Peskind
• Pages: 21-25

SPRING 2022 21

Divorce lawyers routinely use experts in both

contested and uncontested family law cases.

Experts enlighten us and our clients, and coach

us on appropriate case strategies. Sometimes we

use them forensically to investigate the facts,

supporting or disputing claims. Still other times we use them

to oer opinions in court. is article provides an overview

of the various roles experts play in a family law case and how

we can eectively use them.

Consulting Experts

ere are two types of expert witnesses: those retained to

testify and those retained to help us prepare our case. e

rst type is testifying experts and the latter is consulting

experts. Unlike a testifying expert, the consulting expert is

ordinarily beyond the scope of discovery. us, the expert’s

identity, opinions, and conclusions can be kept condential.

For example, divorce attorneys can use a consulting expert

to value a piece of property without disclosing the identity of

the expert. If the opinion is disappointing, the information

could be pocketed, providing an opportunity to develop

Expert Energy

Eective Use of Experts in a Family Law Case

BY STEVEN N. PESKIND

alternative case strategies. If the opinion is satisfactory, the

consulting expert could be converted into a testifying expert

(subject to disclosure) and the opinion could be used during

negotiations or at trial.

Consulting experts also help lawyers prepare for deposi-

tions or trials. Eective cross examination of an adverse

expert includes making the expert admit to the weaknesses in

their analysis or report. A consulting expert helps identify

those weaknesses and assists the lawyer to exploit them. No

matter how smart we think we are, few of us have adequate

skills to expose all of the chinks in the opposing expert’s

armor. Having a consulting expert to help develop a cross

examination is invaluable.

While unorthodox, you can also use consulting experts to

identify weaknesses in your own expert’s analysis, and to

bolster the report. is is a delicate enterprise because if you

challenge your testifying expert with another expert, your

expert’s ego may be bruised, leading to a less enthusiastic

witness. For this reason, conduct the review without notify-

ing your principal expert. If the consulting expert reveals

major aws, direct action may be necessary.

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.