22nd Dec 24 10:00 pm
JamieAccording to the Colorado Bar Association, an expert witness should “never become an advocate or a trier of fact.” Although these experts can help shed light on technical subjects, they always play the role of a witness – and not that of a judge. Even experts are fallible, and their words should not be taken as gospel. As a result, expert testimony is subject to considerable oversight from the court. This “judicial evaluation” helps determine whether the testimony is reliable, and whether the expert is even qualified to speak about certain subjects. Although the Colorado Bar notes that most civil cases (including divorces) are settled out of court, trials are always possible. A spouse who faces potential expert witness testimony in an upcoming trial may wish to discuss this subject further alongside a Colorado divorce lawyer. Consider continuing this discussion with Colorado Divorce Law Group by calling (720) 593-6442.
An expert witness draws upon their knowledge to offer opinions about factual issues related to the divorce. Their expertise may arise from all kinds of fields, industries, and scholarly pursuits. In the context of divorce, medical or psychological experts are particularly common. Doctors and psychologists may testify about domestic abuse, disabilities, addiction, and various related subjects. These issues may affect child custody, particularly when determining whether a parent is fit to look after their children. Disabilities may also affect alimony.
In addition, financial experts may testify on various subjects during a divorce trial. Forensic accountants may help the court understand how a spouse concealed assets or wasted marital funds. Tax experts may highlight certain tax issues that could arise from property division outcomes. That being said, each divorce is unique – and all kinds of experts may take the witness stand during litigation.
In Colorado, judges are responsible for evaluating the admissibility of evidence – including expert witness testimony. This “judicial evaluation” may determine whether the expert is actually qualified to testify about the relevant subject matter. Judges must also consider whether the scientific principles discussed are “reasonably reliable.” According to the Colorado Rules of Evidence, some of this judicial evaluation occurs during the “preliminary questions.” After taking the stand, the expert will generally face questions about their qualifications. They may also face questions about why their specific expertise is relevant to the trial at hand.
Although the judge is responsible for evaluating expert testimony, cross-examination may also help expose various issues. Cross-examination is carried out by the opposing counsel, and its general purpose is to cast doubt on the testimony. Opposing counsel may see issues that a judge missed, and they can raise these observations during cross-examination.
For example, a witness who is an expert on substance abuse may offer opinions about the addiction of a certain spouse. In response, opposing counsel may point out that the spouse suffers from a gambling addiction – and not a substance abuse problem. These kinds of strategies can call expert witness qualifications into question and challenge the relevancy of the testimony. If a spouse faces the prospect of an expert witness testifying against them, they may wish to discuss preparation strategies alongside Colorado Divorce Law Group.
During the judicial evaluation process, various issues with expert testimony may become clear. Perhaps the most obvious issue is lack of relevancy, but there are many other reasons a judge might reject certain testimony.
Even if expert testimony is relevant to a specific divorce, Rule 403 states that a judge may exclude it based on prejudice, confusion, or waste of time. For example, the expert testimony may elicit a strong emotional response from the jury – and this could constitute unfair prejudice. A judge might also exclude expert witness testimony if it is simply too confusing for anyone to understand.
Even if the testimony is relevant, the witness must use words that are easy for the average person to grasp. If they cannot describe the concepts in an accessible manner, the testimony may raise more questions than answers. A “waste of time” might involve expert testimony that drags on without getting to the point. This highlights the need for effective preparation if spouses plan to use expert witnesses in their divorce trials. Ideally, counsel should instruct experts on how to deliver key information in a comprehensible, efficient manner without any superfluity.
If an expert witness lacks sufficient legal knowledge, it may hinder the effectiveness of their testimony. As the Colorado Bar notes, each lawyer shoulders the responsibility of educating their expert witness about these issues before testimony. In particular, the Colorado Bar notes the importance of educating the expert about standards of proof and “reasonable probability.” Expert witnesses should be aware that in the legal world, “reasonable probability” has a very specific meaning – a more than 50% likelihood.
Some professionals may define this legal phrase (and many others) differently in their specific fields. However, they must use legal definitions in favor of their own, more familiar technical jargon before testifying. The Colorado Bar notes that while terms like “reasonable probability” are acceptable in court, more casual words like “might,” “guess,” and “possible” may make the expert opinion inadmissible.
The Colorado Bar warns against using expert witnesses with clear conflicts of interest. These may include experts who have friendships with any of the parties to the divorce. No “extraneous matters” should influence the testimony of the expert, including pressure from clients, attorneys, or professional organizations. If there is any doubt about the impartiality of the expert, their testimony could be excluded. A common tactic is to cast doubt upon the expert by questioning them about compensation during cross-examination.
Some spouses feel relatively certain their divorces will lead to trials, despite the relative rarity of litigation in civil cases. Other spouses may still feel confident about the potential for alternative dispute resolution (ADR) methods like mediation or collaborative law. Whatever the case may be, it makes sense to plan for various eventualities when approaching a divorce in Colorado. That said, this preparation varies depending on the unique circumstances of each spouse. To discuss their specific concerns – including expert testimony – in more detail, spouses may consult with Colorado divorce lawyers. Consider calling (720) 593-6442 to continue this conversation alongside Colorado Divorce Law Group.
