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Expert Deposition in Divorce


Before reading this article understand that I, Eric Roy, write these articles entirely for my and my staff's benefit. We use this information as a resource. If you wish for a thorough understanding on the subject material then you will be well served by speaking directly to a forensic accountant who regularly testifies in high asset divorce trials.

When preparing to depose an expert know that you will be best served by reviewing all expert disclosures as well as discovered information relating to the expert's proposed testimony prior to deposition. Don't attempt to sift through all this information for the first time during the deposition. Prior to deposition you need to be organized. Prepare a deposition roadmap which divides the various subjects of interest into chapters. Then funnel each chapter down from the broadest possible questions to the narrowest until you have exhausted the subject matter. Then move on to the next chapter. By reviewing all reports and disclosures ahead of time you will be able to intelligently move down each funnel as well as move laterally from chapter to chapter within your examination. When preparing your deposition outline be sure to use your own expert to help you organize your questioning. Your own expert will have a good understanding of any weaknesses you wish to exploit or areas of the unknown you seek more information on. If the budget allows for it have your expert there at the deposition with you. He or she can guide you and mention any areas of needed inquiry at the deposition.

Fortunately the rules of civil procedure require experts to submit written reports prior to testifying. These reporting requirements vary from state to state but generally most states follow the federal rules of civil procedure. Under those rules the expert must disclose the opinions to be opined upon in testimony at trial, facts and data considered in forming those opinions, exhibits to be used to support opinions, witness qualifications, and so forth. Understand that beyond the requirement of the report per the rules of civil procedure counsel can chose how exhaustive he or she would like that report to be. You may want a very thorough report if your goal is to intimidate opposing counsel in the spirit of settlement.

It is also useful to understand that certain experts are guided by specific reporting guidelines. Thus, though it is not necessary that those guidelines be followed for the purpose of divorce litigation, they often will be as they are the customary practice of that reporting expert. For instance, business valuation experts follow the AICPA's Statement on Standards for Valuation Services No. 1 (SSVS or SSVS1). As counsel it's useful to understand the reporting requirements promulgated by the AIPA. In this way you can more intelligently read these reports. This will also of course aid in developing your direct and cross examination on the subject material.

Understand that litigation scheduling may be set by the court or counsel. When you are dealing with high asset cases which may require significant disclosure and discovery it is often a good idea to meet with opposing counsel and stipulate to an agreed upon scheduling order. This order will govern timing for issuing and responding to discovery, expert witness designation, timing for exchange of expert reports, pre-trial motions, pre-trial disclosures, and so forth. Counsel can agree to most any terms they wish, any disagreements can be left to the trial judge if necessary. Keep your expert involved in the negotiation of your scheduling order. Given the fact that he will be heavily involved in preparing and interpreting disclosures and reports you will need to accommodate his schedule. Keep in mind that you will definitely want any and all disclosures well in advance of your deposition of the opposing expert. As I stated earlier you need to be well versed in those disclosures prior to the deposition.

Understand that you should not simply rely on the mandated disclosures required by your rules of civil procedure. You need to go above and beyond this and make specific requests for anything not provided in disclosure. We have gone over these necessary items in other articles but bottom line you need to have any and all documentation regarding the financial operation of the employee spouse including the business that he or she owns or otherwise works for.

When choosing your expert look for an expert who has experience testifying in these types of matters. Don't just look at credentials. Generally speaking I think too much emphasis is placed on credentials by counsel. The finder of fact is really not so persuaded by slight differences in prestige. The important thing is that your expert can communicate effectively. This means you need an expert who can speak in a common sense terms so as to be understood by his or her listeners. Your expert should also have integrity and confidence. The last thing you need is an expert who doesn't appear genuine in his delivery.

Categories: Family Law