Divorce and post-judgment cases can involve complex issues that are beyond the expertise of even the most experienced family law attorney. Taxes, estate-planning, trusts, business valuations, vocational assessments, medical issues of a spouse or child, parental responsibility and timesharing, and financial planning needs are just a few of the areas that may call for the hiring of an expert consultant or expert witness in a family law case. What is the difference between the two?
First, let’s talk about how an expert consultant and an expert witness are alike. An expert, whether a consultant or an expert witness, is a person with advanced training and/or education, experience and skill in a particular field. Both consultants and expert witnesses are very knowledgeable in their particular area of expertise and both understand the basic dynamics of family law litigation as it applies to their field of expertise. The difference between consultants and expert witnesses is that a consultant is not a witness in your case, while an expert witness will testify in court hearings.
It’s a critical difference, because if an expert is strictly a consultant, all communication and information exchanged with the consultant is privileged. Your spouse and his or her attorney may never even know you have an expert consultant on your litigation team. But if your expert is hired to be an expert witness on your behalf, all communication is discoverable by your spouse and his or her attorney. This means that all communications between the expert witness and you, your attorney, or others, must be disclosed to your spouse and his or her attorney if they request disclosure of this information.
Whether you want to use your expert as a consultant or as an expert witness can also play a role in your choice of expert. An expert witness, besides being an expert in his or her field, should also be proficient at testifying in a clear manner and capable of conveying a sense of professionalism and competence on the witness stand. On the other hand, your consultant needs only to be an expert in his or her field, capable of educating you and your attorney about a particular field of expertise, and proficient at advising you and your attorney in setting related litigation/settlement goals and how to best achieve those goals …. no special personality traits required!
Be aware that sometimes an expert hired as a consultant can later morph into your expert witness due to the shifts and changes in strategy that are common in family law litigation. This can be a problem if you have told the consultant “everything,” because now all of that information may very well have to be provided to the other side. Discuss the pros and cons of allowing your consultant to testify as your expert witness carefully with your family law attorney — sometimes its better to bite the financial bullet and hire another expert to be your witness in court, rather than allow confidential information to go to your spouse and his or her attorney.
The decision to hire a consultant or an expert witness can be a very important one in family law cases. It’s advisable to consult with an experienced family law attorney before making this decision. An experienced family law attorney will also know reputable expert consultants and expert witnesses in your community who are familiar with the special needs and demands of family law work. The local reputation of your expert witness, in particular, can be very important to your family law judge.