Expert witnesses and reports – these are often a thorn in the side for many lawyers because of the difficult questions they bring up for those who need them. How much will they cost? Is it worth the time and money to have one done? Whom should I hire, or even where do I start? Irrespective of the kind of expert at issue, financial, medical, engineering, psychological, legal, or otherwise, key considerations should include the relative amount of practical experience the so-called expert has.
I was recently hired as an expert witness in an international custody case in Florida. The court qualified me as an expert for the mother due to my years of experience dealing with custody cases generally and international custody disputes specifically as well as for my teaching and writings. I also happen to be licensed in Florida and have unique experience dealing with the Hague Convention on the civil aspects of international child abduction, a multinational treaty that governs the return of children wrongfully removed or retained across international borders.
Father’s expert, on the other hand, may be best described as a “professional expert” because his CV is almost exclusively filled with cases where he is retained as an expert. He has written considerably and has lectured on related topics, but he lacked practical experience.
There are many “professional experts.” Too often, these experts default to useful patterns when they present their opinions to courts. Sometimes this results in such experts recommending virtually the same outcome repeatedly. Sometimes, these opinions make little practical sense. In this case, the father’s expert’s lack of practical experience showed itself in his report and testimony to the court. He recommended that the mother not be allowed any international travel due to the risk that she may flee to Russia, a country which is not a member to the Hague Convention. Further, as an added precaution, he suggested that her visitation be supervised to prevent even the risk of abduction.
In the case I describe above, when I testified, I was able to explain why restricting mother’s ability to travel was both unfair and made no sense practically or legally. The other side put a lot of stock in a text that the mother sent to the father that said, “I might as well go back to Russia” and claimed that it showed a major risk that the mother would take the parties’ son with her to Russia and the son would not be able to be returned to the United States. I pointed out that the mother had sent this text eight years ago and that these types of texts are common in the context of a contentious divorce case.
Moreover, without other evidence during the interceding eight years, such as the selling of property or liquidating of assets indicating the mother is planning on leaving, it seems mother made an angry threat, and nothing more, a long time ago, as people do when they get divorced. Finally, mother had enjoyed for years since this text was made week on/week off visitation with the child and had never absconded with the child. I also stated that there is always a risk of travel, but that “a complete bar to international travel is absurd” and prevents the mother from taking completely normal and natural vacations with her son, such as a cruise. The court strongly agreed with me while disregarding the testimony of the father’s expert. The court acknowledged that my practical experience and common sense as a family law attorney gave more weight to my testimony as an expert.
Thus, in any legal matter, an expert who is worth their fee is one who is well rounded in their profession. It is vitally important for experts to not just write expert reports but to also have practical hands-on experience to back up their assertions. These experts are significantly more likely to create a new expert report for each case they are retained and are more in-the-know of recent developments in their fields. And, as we just saw in this Florida case, courts will often value these opinions more than those of professional experts.
This article originally appeared as a column for the Cleveland Jewish News.