You may think YOU are the expert on every aspect of your divorce or probate case. After all, this is about your family and you. To a degree, you are correct. No one knows your family like you do.
However, when it comes to things like income, assets, debt and best interests of the children, Colorado courts want someone objective and specialized as the expert. That is NOT you.
Unless the other parties to your case and you agree on all issues – and sometimes even if you do agree – get prepared to pony up and pay up for the requisite experts.
For optimal results in your family law, divorce or probate case, you need to know the following 12 things about consultants and experts.
1. Divorce, custody and probate cases often require expert witnesses.
It shocks some people to find out that you need to hire expert witnesses for something as personal as a divorce or probate case. You may ask, why do financial advisors, child family investigators, medical experts, home appraisers, accountants, and guardians ad litem need to stick their nose into your business, much less demand you to pay them thousands of dollars to do so?
The simple answer is that when you go to court for a divorce, custody issue or probate, you are asking the judge to weigh in on what things are worth and who gets them, what parental rights should be, how a business should be divided, who should make decisions for children or a disabled parent.
2. The judge is not technically an “expert” and expects you to hire the necessary experts to educate them on the topics at issue.
A typical judge is NOT an expert in taxes, business compensation, valuations, real estate, parenting or any of the key areas addressed in divorce. They do not have the ability to make the call without evidence to get them in the right direction. If the judge makes an error of law or abuses their discretion in making the decision, they could have their ruling REVERSED or have the case REMANDED on appeal meaning they have to do the hearing again.
Also, believe it or not, judges want to get things right and to be fair. That is usually one of the reasons they became judges in the first place. It is hard to get things right when you are deciding something you do not understand.
Even if you have expertise in an area related to your cases, the judge knows you are biased in your own favor. They want to hear from someone objective and qualified under the Colorado Rules of Evidence (CRE) to testify as an expert.
The answer is to turn to an EXPERT on the issue. The CRE makes clear that, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
An expert like a Child Family Investigator (CFI) or Parental Responsibilities Evaluator (PRE) can help the judge decide what parental responsibilities are in the best interests of the child. An expert like a forensic accountant can help the judge value your business and decide how much money you need to pay the other party to buy them out of their share. An expert in real estate appraisals can value your house in divorce or the deceased person’s house in probate. A medical expert can determine if your relative has a lack of capacity requiring them to have a guardian or conservator.
3. Judges give experts a lot of weight and often follow expert recommendations.
Given the fact that judges do not have expertise and experts do, it should not be shocking that JUDGES TEND TO RELY ON EXPERTS in making rulings. Sometimes, the parties agree on an expert and the expert will usually be followed. Other times, both parties have their own experts — dueling experts — and the judge has to pick one or even find something in between. The Colorado Rules of Civil Procedure (CRCP) do NOT allow the court to give presumptive weight to such reports if they are disputed. See CRCP 16.2(g)(7). Nonetheless, the courts, in my experience, are often persuaded by a compelling expert report unless there is a lot of evidence or a better expert report contradicting it.
4. Experts are expensive and time consuming.
Experts are expensive. Trials are expensive. Presenting an expert witness in court brings with it many obligations, deadlines and expenses. You must disclose the expert witness 63 days in advance of the hearing. You must present the expert witness’s written report, CV (curricula vitae, i.e., resume) and a list of cases in which they testified 56 days in advance of the hearing. See CRCP 16.2(g)(5). You subject the witness to deposition and discovery. You have to subpoena them and have them testify at court. And their reports do not come out of nowhere; you have to give them all the information they need to prepare their report.
Even after all this disclosure, you have no guarantee that the judge will agree that the individual has sufficient expertise to be qualified as an expert at hearing.
And guess what? You have to PAY for all these things! It is time-consuming, invasive and expensive. On the other hand, the risk of proceeding without an expert could be MUCH MORE EXPENSIVE in the long run. See section 6 below. Consult with an attorney on the risks and benefits of each.
5. Judges often require both parties to try to agree on a joint expert.
Colorado law requires the parties to confer on an expert and try to agree on the same one before hiring their own expert. See CRCP 16.2(g). Many judges require parties to confer and then make a motion before hiring an expert who is NOT a joint expert. Another expensive hassle. However, hiring a joint expert makes sense because you pay half the cost and know what their conclusion is before heading into court. Forewarned is forearmed and can even contribute to an early settlement.
6. Settling a case without an expert can be very risky.
Given that many cases settle by agreement in hearing, many people do NOT want to go through all this expense and hassle. But the alternative is to shoot in the dark in an area in which you have NO expertise, just as a judge would do without experts. You might just get it wrong. Moreover, there is case law like the Hunt v. Hunt, 353 P.3d 911, 2015 COA 58 (Colo. App. 2015) that allows the court to THROW OUT any agreements you reach if you fail to have an expert value things like businesses.
7. Consultants and shadow experts allow you to settle a case and prepare for hearing with fewer deadlines, disclosures and expenses.
This is when having a joint consultant — an expert who advises both parties — or an individual consultant — an expert who advises just you. If you have your own expert and want their information to stay confidential, this could be called a confidential consultant or a “shadow expert.” You might even want to have your expert or shadow expert weigh in at mediation or a settlement conference.
8. Hiring a consultant or expert is tricky: If you do not do it right, you may have to turn over all the confidential information.
There is case law in Colorado that requires a person to turn over their expert evidence and reports because they were relied upon in preparation for hearing. If you try to hire a shadow expert in your case and do not follow the strict rules of evidence, you may end up waiving your privilege and confidentiality. This could cause more harm than good. It is critical to have excellent advice from a family law or probate attorney to help you avoid this risk.
9. It is better to hire a consultant sooner than later.
Because it takes a long time for consultants to prepare for hearing, it is a good idea to line them up well in advance. They can even help you prepare for hearing if involved at the first stages. Judges are clear that they will NOT give extensions for experts to prepare if the parties procrastinated and waited until the last minute to hire them. Also a lot of experts are very busy and scheduling a month or two in advance. Better to know in advance if you need them.
10. A consultant can help you prepare for mediation and hearing.
Do NOT overlook the many ways an expert can help you. If you have your own private expert, consultant or shadow expert, they can help you prepare interrogatories, which are written questions you serve on the other party. They can help you decide which documents to request in a formal or informal request for documents. They can outline questions for depositions or hearing. As mentioned above, they can even call in at a mediation or settlement conference to help get the case settled. Some of our most effective settlement conferences have included individual or shared experts who advise everyone involved of their positions and how they plan to testify at hearing.
11. Sometimes you can use your shadow expert or consultant later as a rebuttal witness.
A shadow expert or consultant stays in the “shadows” (i.e., behind the scenes). But you can bring them out of the shadows to testify if you want to dispute the other side’s expert or a joint expert. In this case, they can serve as a rebuttal expert pointing out errors in the other expert’s research and conclusions. Rebuttal experts have later deadlines to disclose so you have some time to decide whether you need to bring your shadow expert out and disclose them as an expert witness. If so, they need to disclose their written report, CV and list of cases in which they testified just like the other experts. Best to have these things in advance in the event you need them. The deadlines for rebuttal experts are quick. See CRCP 16.2(g)(5)(rebuttal expert reports are due 21 days after the disclosure of the expert or no later than 35 days before hearing).
12. An attorney can help you hire and prepare consultants and shadow experts.
If you are considering hiring an expert, visit BethLynnAndersenJD.com to schedule a free consultation with Andersen Law PC, call us at 720-922-3880 or contact me directly at 303-808-4794. We can answer your questions and get you in the right direction.
