Expert Witnesses
Most people are familiar with the concept of an expert witness. On television and in film expert witnesses can take the form of an accident reconstructionist, arson expert, physician or some other professional. Experts are a staple in litigation and are often used when a dispute exists. So will you need an expert witness in your divorce proceedings?
You may. Expert witnesses can play a major role in family law cases and are used frequently.
In custody actions one parent may call upon a child psychologist to testify regarding the best custody schedule for the child. In property dispute actions, a CPA may be required to help place a value on a business asset, or to testify regarding the tax implications of dividing certain types of property. An alimony dispute may require a vocational expert to testify on a person’s earning potential. There are plenty of situations where an expert may be needed to testify regarding family law issues.
This article will discuss everything you need to know about expert witnesses; how a person can get qualified as an expert witness, the costs of hiring an expert witness, and how are these witnesses are paid among other topics.
Who can be an expert witness?
There are some very specific rules that will determine whether an individual can qualify to testify as an expert witness. First, the subject matter of the testimony must relate to the expert’s specialized knowledge. An expert may testify if he has any specialized knowledge that will assist the court in understanding the evidence or determining a fact in issue. Some experts will be qualified because of their educational background, while other experts might have developed their expertise through professional experience and life in general, rather than academia.
In family law, the subject matter of most cases tends to be particularly emotional. For that reason, expert witnesses can play an essential role in facilitating the court’s understanding of a variety of financial, psychological, technological and social issues. In divorce cases, experts include accountants, real estate or business appraisers, and pension valuators for the purpose of equitable distribution. Additionally, vocational experts and financial planners are commonly used as experts for the purpose of alimony and child support. In custody cases, experts include child custody evaluators, physicians, mental-health specialists, and social workers.
Not only does the expert need specialized knowledge on the subject matter at issue, but the expert’s qualifications and skills must demonstrate that the testimony is reliable. Under North Carolina Law, testimony is reliable if it is
- Based upon sufficient facts or data
- Is the product of reliable principles and methods
- The witness has applied the principles and methods reliably to the facts of the case.
A particular Supreme Court ruling gives further factors to consider when determining reliability, specifically with regard to the method used by the expert. Those factors are:
- Whether the theory has been tested
- Whether the theory or technique has been subjected to peer review
- The known or potential rate of error
- General acceptance within the community
Experts such as financial planners, accountants, and real estate and business appraisers generally form their ultimate opinion based on time-tested methods and principles that can be easily defended, thus these additional factors would not preclude their testimony. However, lawyers may be presented with more of a challenge admitting the opinions of experts whose methods and principles cannot be explained and defended as easily. For example, in child custody cases, the recommendations of social workers and psychologists may not be based on methods and principles that satisfy the stringent reliability criteria these four additional factors require.
In sum, there are very specific rules that apply when determining whether someone is qualified as an expert witness, and whether there testimony is reliable. Your attorney will certainly be aware of these rules when choosing the appropriate expert in your case.
What is the role of the expert?
Generally there is a written agreement that establishes the role of the expert in a particular case. Expert witnesses’ services can be important in all the stages of litigation, from providing an initial case review to testifying at trial.
Sometimes an expert may be hired simply to gather information while other experts may be asked to provide an official report of their findings. Occasionally experts are deposed by one or both parties, and some experts will testify at trial.
As you can see, experts can have minimal involvement in a case, or they can have a large role. The amount of involvement an expert has in your case should be clearly addressed in the written agreement.
Types of Experts: Consulting v. Testifying
The rules governing discovery of experts in North Carolina differentiate between a “testifying expert” and a “consulting expert.” Sometimes an expert will be both; an expert that is initially retained to consult commonly will become a testifying witness.
Consulting experts are retained to review a file and aid the in the preparation of litigation. In North Carolina, the identity and opinion of a consulting expert that is not going to testify at trial is not discoverable.
Through interrogatories, a party can obtain the identity of and the substance and facts of the others party’s testifying expert in discovery. However, in North Carolina, parties are only entitled to obtain expert disclosure though interrogatories. Pursuant to Rule 26, through the language of the 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.”
Who hires the expert?
Expert witnesses can be retained by either spouse or can be appointed by the court. Usually, if someone seeks to hire an expert, the lawyer will select, contact, negotiate with, engage and pay the expert. Be aware that a written compensation agreement is of utmost importance, as it provides all the terms agreed upon by both the party and the expert. The agreement should provide a clear statement of whether you or your attorney is responsible for the expert’s payment.
Occasionally a judge may unilaterally appoint an expert. In that case, the court can select its own expert or it may appoint an expert that both parties have agreed upon. By law, a court appointed expert must be informed of his duties in writing and he must advise both parties of any findings or conclusions he has come to. Additionally, both parties may depose an expert appointed by the court (without a court order) and may call the expert to testify at court.
How does the expert get paid?
Compensation Agreement
In addition to a provision indicating who is responsible for paying the expert, the written agreement also should spell out exactly how the expert will be compensated. Experts can charge a straight hourly rate or they can charge a lump sum fee (generally for specified services). Additionally, for services such as depositions or appearing at trial, some experts increase their hourly rate or charge by the half-day or day. The compensation rate is usually based on such factors as the experience of the expert and the nature of the task assigned.
It is general practice that the agreement will also state when the payment is due. The terms of the agreement may reflect that the expert’s fee is due up front, or that fees for services will be billed as the expert proceeds, or that the payment is due in full after all services are rendered. The terms of the agreement should control all aspects of the expert’s compensation.
As a side note, an agreement to pay the fees of an expert witness cannot be based on contingency – meaning that it is not permissible to enter into an agreement with an expert whereby the expert is only paid if you prevail at trial.
All that is to say, be sure you are aware of the payment terms in the agreement executed by your expert witness. You should be aware of how much the expert charges, who should be paying the expert, and how payment is structured.
Court Awarded Costs (By Statute)
There is another aspect of payment that should be addressed, and that is that in some instances expert fees will be paid by the losing party. By statute, the court has discretion to order the losing party in litigation to pay certain expenses called taxable costs. “Taxable costs” is a term of art that simply means litigation-related expenses that the winning party is entitled to as a part of the court’s award.
With regard to expert fees, a judge can assess and award costs for reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings. This is limited to only the 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. So, if you plan on using an expert to testify in your proceeding, and are hoping to recoup taxable costs, make sure the expert is sent a subpoena.
The court cannot assess and award the costs of expert witness fees for preparation time. Therefore, in order for an expert witness to ensure payment for time spent researching and developing an opinion prior to a deposition or trial, a compensation agreement is vital.
Fees Awarded Under North Carolina Rule of Civil Procedure 26
Rule 26 addresses the rules related to depositions and discovery – the pretrial exchange of information. Generally, a compensation agreement will establish that the client or attorney who obtained the expert is solely responsible for the expert’s pre-discovery fees. This is because in North Carolina, parties are entitled to obtain expert disclosure only through the use of interrogatories. If a party requests certain expert disclosures through interrogatories, the party who retained the expert is required to provide the requested information and thus, is most likely contractually liable for the expert’s payment for the disclosures provided.
However, if the court accepts the motion of a party to depose the expert or pursue other methods of discovery beyond interrogatories, the retaining party is not responsible for paying the expert for the additional services. In those cases, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent responding to discovery. Therefore, by rule in North Carolina, the party seeking the deposition of an expert witness must: (1) get a court order and (2) pay the expert a reasonable fee for his time.
In practice, however, it is common for agreements to control how parties handle expert depositions. In cases where each side has retained an expert witness or multiple expert witnesses, the parties will agree to conduct reciprocal expert depositions without a court order. Additionally, if a party does not object to the deposition of their expert witness, the party requesting the deposition will pay the deposition fee established by the expert. If the party requesting the expert’s deposition believes that the demanded fee is too excessive, he has the option of filing a motion and letting the court determine a reasonable fee.
An important distinction between being awarded statutory fees and being awarded fees pursuant to Rule 26 is that although the court can only award statutory costs to an expert witness that was deposed under subpoena, the court can order fees for an expert witness deposed without a subpoena under Rule 26. However, a Rule 26 order is issued during the discovery period, whereas, statutory fees are awarded later in the litigation process.
In sum, absent an outside agreement, the party requesting the deposition of an expert witness by appropriate motion will be ordered to pay the expert a fee deemed reasonable by the court. Additionally, the court will assess and order the losing party to pay reasonable and necessary fees incurred in the expert witness’ subpoenaed deposition. However, if the court does not order the requesting party to pay the fees associated with the deposition under Rule 26 and the expert witness is deposed without a subpoena, the court will not award expert witness fees incurred in a deposition.
Fees for Court Appointed Experts
Whereas the compensation of expert witnesses retained by parties is generally established in an outside agreement, the court has the sole discretion to determine the terms of the payment of a court appointed expert. Court appointed experts are entitled to “reasonable compensation” in an amount determined by the court, and the court will decide the manner and proportion each party should pay the expert.
What if an expert refuses to comply?
A situation may arise where an expert refuses to provide testimony, either through deposition or at a trial. . If an expert witness is not subpoenaed for his deposition or trial testimony and he subsequently refuses to attend deposition or trial for lack of advance payment, the deposing party may have an action against the expert for breach of contract, contingent on the terms of the agreement.
If, however, an expert refuses to attend a deposition or respond with an adequate objection after receiving a subpoena compelling his testimony, he may be deemed in contempt of court.
What if an expert is simply appearing as a fact witness?
Sometimes a person who would otherwise be qualified as an expert witness will only be asked to appear as a fact witness, in which case they would be owed no fee. For instance, a treating physician who is called to testify about his care of the patient would be a fact witness, and the doctor would not be treated as an expert. However, if while testifying the doctor begins to discuss matters beyond the scope of being a fact witness, he can ultimately become an expert witness and the aforementioned rules for payment of experts will apply.
A family law example of an expert testifying as a fact witness would be as follows. Say 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 only be a fact witness. If the scope of the testimony expanded to how this could impact the child, she would then be transitioning from a fact witness to an expert witness.
