According to the Illinois State Bar Association (ISBA), an expert witness often plays a “vitally important role” in a family law case. The court may consult with an expert to provide everyone with a deeper understanding of relevant technical issues, or the expert witness might testify on behalf of a specific party. Whatever the case may be, spouses and their attorneys are responsible for evaluating these experts and determining whether they are suitable to provide testimony. This process can be challenging and time-consuming, and the ISBA describes it as both an art and a science. Those approaching these civil cases may wish to work alongside experienced family law attorneys in Illinois when selecting and evaluating expert witnesses. Spouses may find it easier to understand the expert witness selection criteria after calling Johnson O’Keefe at (312) 319-4444.
Why Is the Selection Process for Expert Witnesses Important?
The selection process for expert witnesses is important for various reasons. Perhaps most obviously, it makes sense to choose the most knowledgeable and suitable witness in order to pursue positive results. Medicine, science, and various other fields are highly compartmentalized with many disciplines and subdisciplines. A witness with more general knowledge may not be as effective as someone with highly specialized knowledge in a specific area.
For example, a parent may have a child with obsessive-compulsive disorder (OCD). They may wish to argue that they are more suitable to help with this disorder than the other parent. During a custody dispute of this nature, it may help to choose a child psychologist who specializes in OCD – perhaps someone who has written numerous papers on the subject. This expert witness may be far more effective than a child psychologist with more generalized knowledge.
Why Expert Witnesses Complicate Attorney-Client Privilege
The selection process is also important due to concerns over attorney-client privilege and discovery. Many people are aware of the concept of “attorney-client privilege.” This rule states that when someone hires an attorney to represent them in a legal case, anything they say to their attorney should be confidential. If the attorney reveals these confidential discussions, they face serious legal consequences – including the loss of their license to practice law. An expert witness could complicate this concept because their discussions may not be subject to the same confidentiality rules.
Early discussions with expert witnesses could prove problematic, depending on the intended purpose of the witness. If an expert acts as a consultant and educates both parties without “taking sides,” their discussions are generally privileged (confidential). If the expert joins these discussions to testify on behalf of a specific party, however, their communications may not be confidential. As the American Bar Association (ABA) notes, this becomes even more complicated when an expert initially joins the case as a consultant and later switches roles to testify on behalf of a specific party. In this situation, early discussions could become “discoverable” – and the disclosure of this information could be detrimental. These complexities highlight the need to exercise caution when evaluating expert witnesses – and Johnson O’Keefe may be able to assist with these early evaluations.
What Are the Selection Criteria for Expert Witnesses in Illinois?
While attorneys and their clients must evaluate expert witnesses on their own, family courts in Illinois may also play a role in determining the suitability of a specific witness. The family court may assess whether the expert has specialized knowledge of the specific issue relevant to the case. For example, a family law case might involve a spouse fighting for more alimony due to their disability. The most suitable expert witness in this case should have specific, specialized knowledge of the disability in question.
The family court may also assess whether the expert witness has spent enough time dealing with the relevant issue in a professional setting. In the case of a medical expert witness, this might be a specific health condition, disorder, or injury. If they have not handled the issue in a professional setting, the individual may still qualify as an expert witness after teaching or researching the subject in a university setting.
Four Essential Steps in Selecting an Expert Witness
A paper by the American Bar Association entitled “Selecting and Retaining an Expert” outlines four important steps in this process. The first step is to become familiar with the technical issue that the expert will help with. Although it is impossible to gain the same level of expertise as a professional who has dedicated their entire career to the subject, parties should at least gain a cursory understanding of the relevant concepts. Without this basic understanding, it could be difficult to select a suitable expert witness. The second step recommended by the ABA is to identify a pool of potential experts. For example, a spouse navigating a case involving concealed cryptocurrency assets might select several experts in blockchain technology, forensic accounting, and money laundering.
The next step is to properly evaluate these experts and eliminate those unsuitable for the task ahead. Parties may wish to dismiss candidates with limited knowledge or conflicts of interest. If an expert has a history of testifying in a way that could be detrimental to the current case, parties may also wish to select an alternative candidate. Finally, the ABA recommends that parties review how courts treat these types of experts. For example, Illinois family courts may have a history of treating certain technical experts with skepticism – and this may require parties to adjust their strategies accordingly.
Continue This Discussion With an Experienced Attorney From Johnson O’Keefe
An expert witness has the potential to completely change the trajectory of a family law case, whether it involves divorce, child custody, a protective order, or any other family-related issue. However, an expert witness may only be effective if parties successfully navigate the selection process. An expert witness could help explain technical subjects and express important objective opinions, but there is always an element of risk when a witness takes the stand. An experienced family law attorney in Illinois may be able to help spouses get the most out of expert witnesses while mitigating these risks. To learn more about the selection process, consider contacting Johnson O’Keefe at (312) 319-4444.