Elmer McDuffy: Family Lawyer Layton Utah

Speak to an experienced Layton Utah family lawyer if you wish to hire an expert witness for your family law court case.

The expert witness should be thoroughly informed about the specific facts and issues in a legal case, so that the testimony can be proffered in a competent and professional manner. The expert is able to form opinions based on known facts and objective evidence, not only on theory. Testimony should be presented in a confident but not arrogant or condescending way. A glib and witty style may impress some courtroom intellectuals but would not be well received by the average juror.

Although often hired by one side in a legal matter, the expert witness does not serve as an advocate, as do the attorneys involved, but remains completely objective and impartial. Having strong convictions based on a professional analysis is a good thing; arguing to win a case for the client or attorney is not. The expert’s role is to help the court understand the case and not to decide its outcome.

The expert witness is able to communicate opinions in a clear, succinct, and persuasive manner, while avoiding technical terminology and jargon. The expert can answer questions directly and completely without volunteering unsolicited information. When faced with a challenging cross-examination, the expert remains calm and responds constructively to vigorous inquiry. Even when the questioning turns hostile, the expert witness demeanor should remain polite and nonargumentative.

Expert witnesses often are ignorant of courtroom dynamics and the rules of courtroom performance. Hence it is important that your expert witness speaks to an experienced Layton Utah family lawyer to know the rules and procedure. These rules cover who can he spoken to, by whom, when, and how. They also structure what can and what cannot be said in court. In an adversarial situation, these requirements lead attorneys to manipulate the rules to present evidence in support of their case, to discredit the evidence of the other side, and to prevent the other attorney from doing the same. Attorneys have different styles just as experts do. Some are principled bargainers who attempt to negotiate a fair agreement. A few are soft bargainers and like to avoid conflict and risk. Others are hard bargainers who have winning as their primary goal and rarely negotiate except in an aggressive manner. Regardless of the opposing attorney’s style in cross-examining an expert witness, the expert should keep several points in mind:

1. The expert witness should be prepared to state professional qualifications clearly and in a well-articulated voice. These include educational level, clinical experience, experience as an expert witness, professional organizations to which the professional belongs or in which he or she holds office, membership on any local committees (especially when they may have to do with the case), and any other relevant information. The opposing counsel may challenge the credentials, but the judge will determine the witness’s status as an expert. A licensed psychologist in clinical practice generally will be considered qualified to serve as an expert, or it is unlikely that he or she would be on the witness stand.

2. Professional dress is a requirement to avoid offending judges or suggesting lack of respect for the court, as well as to protect professional credibility.

3. The witness should speak slowly and clearly, avoiding jargon. This is an area of criticism of attorneys as well as expert witnesses. One should avoid continually defining words, or worse, ignoring the need for their definition.

4. Joking or wisecracking should be avoided, even if the attorney does this. The witness should be relaxed and unintimidated but should show that he or she takes the role of expert witness seriously.

5. The witness should address the judge as “Your Honor” and learn the names of all attorneys, so that responses to questions may be prefaced with the correct name.

6. The witness may restate an attorney’s questions, changing small words he or she may have used to get the witness to contradict an earlier statement. The question may then be answered as restated.

7. The witness should feel free to take notes and/or books on the stand and should not be afraid to use them. However, he or she should be familiar with the location of the information to avoid delays and fumbling. Also, anything taken on the stand may be entered as an exhibit, so only those items should be taken that the witness would not be uncomfortable having the court see.

8. If an attorney asks a multiple-part question and wants a “yes” or “no” answer, the witness should not be afraid to say that the question cannot be answered with a simple ” yes ” or “no.”

9. At the end of testimony, if an expert witness feels that an important piece of information has not been revealed, he or she may request of the judge an opportunity to present evidence felt to be vital to the court’s decision. In family court, this may well be permitted.

10. If asked about his or her fee, the witness should not be apologetic. Expert witnesses are paid for their time, not their support. Fees for court should be charged at the same hourly rate as fees for office visits.

It is a wise professional who reads as much as possible concerning courtroom etiquette and procedure before going on the witness stand. A valid evaluation and a valuable opinion could well be lost in attorney manipulation. Being prepared helps to ensure that such damage is kept to a minimum in the best interests of the child in a custody dispute.

It is perfectly acceptable for your expert witness to meet with your attorney before going to court so that you can be apprised of the critical issues in the case and so that the attorney is thoroughly familiar with your testimony. The exert witness should assist the attorney with the kinds of questions that should be asked in order to elicit his opinion most effectively. The expert witness should also anticipate the challenges that may be made to his opinion and help the attorney in determining how these may be dealt with during direct examination.

Child custody

disputes demand the assessment of multiple relevant factors. The expert considers not only the obvious parent-child relationships and the personalities of each family member, but the evaluation also considers financial matters, living conditions, relatives and support groups, and educational opportunities. If any of these elements has been overlooked, the attorney will probably explore this oversight in cross-examination.
A psychiatric disorder does not, per se, indicate mental incompetency. Thus, a psychotic, a neurotic, or an alcoholic can draw up valid wills. The critical factor is whether the person, at the time of making the will, has sufficient capacity to understand the extent of his or her property and consequences of his or her will.

Rules of Evidence

Rule 801 (c) of the Federal Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 802 provides that hearsay is generally inadmissible. However, Rule 803 enumerates twenty-four exceptions that would allow hearsay evidence to be admitted.

Rule 804 addresses hearsay exceptions applicable only when the declarant is unavailable. This rule covers unavailability due to (1) exemption to testify for a reason deemed valid, (2) refusal to testify, (3) inability to remember specifics required for testifying; (4) death or illness in the family, (5) inability to locate the desired witness, or (6) failure to compel the individual to testify. Former testimony, statements made under belief of impending death, and statements against interest are also admissible as exceptions to the hearsay rule.

If an expert is withdrawn prior to trial, the prior deposition testimony of that witness is most often inadmissible as hearsay evidence. A party must be able to withdraw experts from participating in a case without fear that an abandoned expert’s deposition testimony will be admitted into evidence at trial as an “admission.”

The significant precedents that affect expert witnessing-including Frye, Daubert, Joiner, and Kumho-have shaped the use and solidified the value of expert testimony in the American judicial system. Understanding these precedents and the rules of hearsay are fundamental in becoming an effective expert witness.

Under Daubert, federal courts were given far greater flexibility in determining the admissibility of expert scientific testimony. Rather than looking to the scientific community to determine whether scientific evidence was sufficiently sound to be considered by the trier of fact, a judge is expected to screen scientific evidence to determine its relevance and reliability. While the court is free to consider whether the methodologies used by the expert have been generally accepted, the court is also expected to inquire into the substance of those methodologies. In part, this change evolved as an outgrowth of the flexibility given to judges in the Federal Rules of Evidence to admit or exclude testimony based on their own discretion.

The testimony of expert witnesses is intended to clarify and interpret facts so the jury can understand the relevant scientific or technical information and thereby render a decision. Federal Rule of Evidence 702 states that reliable expert testimony must be based on scientific fact and not subjective belief or opinion. Rule 702 further requires that a valid scientific relationship needs to be established between the evidence to be offered and the issue to be tried. If this relationship can be reasonably established, the expert testimony is admissible as evidence. Testimony that is not relevant does not assist the jury in better understanding the evidence or in ultimately rendering a just verdict.

Daubert suggested two additional considerations for determining the admissibility of expert testimony. The first concerns the extent to which the theory or technique used in the expert testimony relies on the expert’s subjective interpretation. The testifying expert must show that the basis for his or her testimony is objective. This can be established by presenting peer reviewed literature showing that the evidence is based on unbiased and objective methodology, logic, and assumptions. Additionally, the expert’s field of expertise must be recognized as a reliable discipline among other experts, regardless of degrees and experience.

The second consideration concerns the application of the theory or technique outside the context of litigation. In the case of a new theory, the expert must establish that it can be objectively substantiated through independent testing or application.

The decision of the trial judge to admit or exclude expert testimony may come at various times in the litigation. During the pre-trial process, either party may file motions to exclude expert testimony by comparing expert opinions to the Daubert factors. In response to pretrial motions, the judge has several options. First, he or she can rule on the reliability, relevance, and admissibility of the proposed testimony based strictly upon the arguments of the attorneys and supporting material provided to the court. The court may also hold a hearing prior to trial where the expert must testify to matters that address the Daubert factors; this testimony is then considered along with the oral arguments. If the court wishes additional guidance, the judge may appoint independent experts to review the motions and make recommendations. The judge can also allow the case to proceed and decide during trial.

Speak to an experienced Layton Utah family lawyer before you chose an expert witness. Choosing an expert requires consideration of the following:

1. Qualification. First and foremost, an expert must be able to demonstrate specialized skill or knowledge acquired through an appropriate mix of experience or education. Recognized expertise in the subject can be credibly substantiated by the authoring of peer-reviewed papers and books, recognition by peers for contributions to the field over an extended period of time, or other relevant activities recognized and accepted by other experts in the field.

2. Ability to Communicate. To be effective, an expert witness must have the ability to clearly and persuasively explain and communicate complex theories and results through explanation, simplification, and clarification, and by giving examples and analogies.

3. Litigation Experience. Through actual litigation experience, experts learn what is expected of them as well as what to expect in the various steps of the litigation process. Additionally, lawyers are inclined to depend on experts who understand the litigation process and are able to withstand rigorous critique of their testimony by opposing attorneys hoping to discredit the expert.

4. Commitment. An expert must be able and willing to commit the time and energy needed to adequately conduct research and to formulate defensible opinions.

5. Proximity. Experts in the vicinity of the trial location are often more convenient and less expensive due to the absence of travel costs. On the other hand, experts from faraway places may be more impressive to a jury, particularly if the faraway place is a prestigious university or research institute.

6. Cost. The fee of an expert is a significant variable. A proven expert with a highly effective track record may cost more per hour, but may be far more attractive in terms of efficiency, effectiveness, and overall impact.

Layton Utah Family Law Attorney Free Consultation

When you need legal help with family law in Layton Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you with child custody, divorce, adoption, child support, alimony and much more.