Most of us are familiar with using CPAs to value businesses, and psychologists and psychiatrists to make mental health assessments in custody cases. Pharmacological and DNA experts have become commonplace; so have employment experts in maintenance cases. However, there are many other uses of experts. Our imagination is the only limitation. Nevertheless, there are many things to consider when employing experts. Once you decide how to use your expert, you then must consider the expert’s qualifications, the application of hearsay and other rules of evidence, as well as standards of professional practice.
An illustration of the need to consider the adequacy of your expert’s foundation for the opinion, occurred in the context of an area that has drawn attention lately, ie, child abduction. In Pirayesh v. Pirayesh, 596 S.E.2d 505 (S.C. Ct. App. 2004), the appellate court affirmed a decision that prohibited the father from traveling outside of the United States with the children. The wife brought in an expert witness who was qualified by the court as an expert on child abduction (and remedies) in the Middle East. There was an issue as to whether or not the expert knew Iranian law sufficiently to provide adequate foundation for her opinion. The court of appeals held that the expert did not go beyond her qualification. It did note, however, that allowing an expert to testify beyond the scope of his or her expertise can be reversible error. Thus, it is important to make certain that your expert carries sufficient qualifications to express the opinion competently.
In Jawad v. Whalen, 759 N.E.2d 1002 (Ill. App. Ct. 2001), another case involving the qualification of an expert and the admissibility of testimony, a wife sought to enjoin the husband from fleeing with the children. The wife called a consultant in international child abduction, who testified that she provided evaluations and strategies for coordinating recovery of children and performed prevention evaluation. However, she had no formal education. In fact, her only degree was in nursing. She testified that she had read extensively and researched literature in the area. The trial court allowed her to testify, over objection, as a non-scientific expert. The consultant testified that the husband posed a risk for abduction. The trial court disagreed with her conclusions and believed that the expert improperly substantiated her opinion through her own interpretation of the facts. The trial court, therefore, denied the request for injunction, and the appellate court affirmed the denial. It went a step further, however, and noted that the consultant’s evidence was actually scientific. Applying the Fryetest (Illinois is a Frye rather than a Daubert state), it held that on remand, a Frye hearing would have to be held before the consultant would be allowed to take the stand. The basis for the court’s decision was that the expert’s evaluation was predicated on factors identified in studies of literature authored by psychologists. Oddly enough, one of the psychologists in the case opined that there was no risk of abduction. It appears that no challenge was made to that finding or the foundation for it.
In In re Marriage of Hazard, 520 N.E.2d 1121 (Ill. App.Ct. 1988), the testimony of two experts was properly stricken. A board certified psychiatrist indicated that he had never interviewed the children. Accordingly, it was held that the trial court properly excluded his testimony because it was based on evidence that was considered unreliable according to the standards of his profession. He admitted he failed to follow the standards and recommendation of the Board of Psychiatry. Another report by a supportive services caseworker was issued pursuant to court order, under a statute that allows the court to order an investigation and report concerning the custodial arrangements for the children. It was noted that the report was only evidence of what the investigator observed and of her conclusions concerning suggested custody arrangements, based on those observations. The report contained observations by third parties, which were ruled hearsay, and it was properly stricken by the trial court.
Creative Use of Experts
A good expert can make your case. See, eg, In re Matter of Edward S. v. Moon, 7 A.D.3d 834, 776 N.Y.S.2d 363 (N.Y. App.Div. 2004), in which a Delaware County social worker and a Delaware County caseworker both opined that visitation with an incarcerated parent would not be in the child’s best interests. These uncontradicted opinions by well qualified experts carried the day.
We know that actuaries are often used to value pensions; however, valuation is not their only use. In the case of In re Marriage of Mohrlang, 85 P.3d 561 (Colo. Ct. App. 2004), the court of appeals reversed and remanded to consider whether the value of the husband’s trust interest in certain stock should be discounted by an appropriate rate. There were certain contingencies that might affect the husband’s interest, such as the delay in the husband’s receiving his interests and the possibility of a forfeiture. The appellate court found that the trial court should have considered actuarial information concerning the life expectancy of the husband’s parents and relevant information concerning the likelihood that the trustee would invade the trust corpus in the future. In this case, actuaries would supply the statistical evidence regarding life expectancy and invasion of the trust. 85 P.3d at 563.
Many experts are used in custody cases, including social workers, teachers, therapists and physicians. It is important to establish and follow the proper rules of admissibility as they apply to each expert in your particular state. For example, inHastings v. Rigsbee, 875 So. 2d 772 (Fla. Dist. Ct. App. 2004), the trial court appointed a “parenting coordinator.” This person became more than a coordinator, and in fact, essentially became a fact finder. The appellate court held that the trial court improperly delegated its judicial authority to the parenting coordinator. The primary evidence on which the trial court relied was the report and testimony of the parenting coordinator, and the report and testimony were almost entirely hearsay. The appellate court reversed, noting that some trial courts in Florida can order social services investigations and home studies, but this parenting coordinator had not been appointed pursuant to the proper statute. See also In re Marriage of Divelbiss, 719 N.E.2d 375 (Ill. App. Ct. 1999) (wrong statute employed; custody evaluation not permitted).
In S.J.R. v. F.M.R., ____ So. 2d ____, 2004 W.L. 1012892 (Ala. Cir. Ct. App. 2004), both hearsay and professional standards applied to the experts’ testimony. The appellate court ruled that a child’s statement to a court-appointed counselor was hearsay and should not have been admitted. Another issue in the case was removal of the court-appointed counselor. One of the parties called an expert on the standards of practice for licensed professional counselors as a witness. Thus, while it is possible to have one expert opine that his opponent did not follow proper standards and procedures, it might be beneficial to go a step further and hire an “ethics expert.”
Sometimes, hearsay is permitted. Guardians ad litem, who are usually attorneys, can consider hearsay in some courts. Frank v. Lake, 596 S.E.2d 223 (Ga. Ct. App. 2004). In fact, in Illinois, a guardian ad litem can even rely on inadmissible evidence that may have been wrongfully obtained, such as by an alleged violation of an eavesdropping statute. In re Marriage of Karonis, 693 N.E.2d 1282 (Ill. App. Ct. 1998).
Content of the Testimony
Another bar to the admission of expert testimony may be the content of the testimony itself. For example, over the years certain psychiatrists — including most notably the late Dr. Richard Gardner — testified about “Parental Alienation Syndrome (PAS).” This theory is the subject of much controversy and has not readily been accepted in the majority of United States courts. See, eg, People v. Fortin, 184 Misc.2d 10, 706 N.Y.S.2d 611 (N.Y. Sup. 2000) (defendant failed to establish general acceptance of Parental Alienation Syndrome within the professional community, which would provide a foundation for its admission at trial). Last year, in In re Marriage of Bates, 819 N.E.2d 714 (Ill. 2004), Dr. Gardner had testified and a Frye hearing was held; the trial court found PAS to be generally accepted. The mother objected to Dr. Gardner’s testimony at trial for various reasons. The trial court let it in, but, in its ruling, announced that it would “throw out the words ‘parental alienation syndrome.’ ” In expressly disclaiming any reliance on the PAS theory, the trial court instead applied the Custody Act and found that the mother interfered with the father’s relationship with the child. While the Supreme Court affirmed the change of custody, it noted that:
“Dr. Gardner and PAS have been harshly criticized by scholarly writers. (Citation omitted) Critics have pointed to many flaws in the theory and have challenged Dr. Gardner’s expertise and motivation … Accordingly, even though the trial court, in its pretrial ruling, found PAS generally accepted in the relevant scientific community, the record clearly demonstrates that Dr. Gardner’s PAS testimony was not a basis for the trial court’s judgment. Thus, we conclude that, whatever the merits of the PAS theory, the court’s ruling was not dependent on any finding that PAS was present in this case. We, therefore, need not review the trial court’s general acceptance determination and we express no opinion on the validity of that finding.” 819 N.E.2d at 731.
The court concluded that “PAS is now the subject of legal and professional criticism, and our holding, in this case, does not foreclose further challenges to the validity or general acceptance of that concept in future cases.” 819 N.E.2d at 733-734. Thus, the Illinois Supreme Court is inviting another challenge to PAS, which may or may not be necessary due to the death of Dr. Gardner.
In a neglect proceeding, In re B.J., B.J., & J.J., 735 N.E.2d 1058 (Ill. App. Ct. 2000) a clinical psychologist testified that:
“The child’s reports of sexual abuse were not credible because his interviewers were too forceful in their approach; The respondent did not fit the profile of a sex offender.”
The appellate court ruled that this evidence was properly excluded, stating, “trial courts should reject the attempt to use purported expert testimony to bolster or attack a witness’ credibility.” 735 N.E.2d at 1065. This statement invades the province of the trial judge. (Of course, many custody reports seem to contain findings as to a party’s credibility; this objection is not raised often enough.) The court also ruled that expert testimony is an improper way to introduce general reputation evidence of good character, or good personality/character traits. The court did, however, rule that it was proper for the psychologist to testify regarding the interviewing techniques used on the child, and their validity.
In In re Marriage of Cianchetti, 815 N.E.2d 17 (Ill. App.Ct. 2004), the former husband had an interesting idea. At a college education expense hearing, he brought in an expert to testify about other educational programs available to the children, educational costs and alternative methods of funding the expenses. The trial court excluded this testimony, stating it was irrelevant because the expert had not attempted to draw comparisons with the programs offered at the particular private school. The comparisons were, therefore, of limited probative value. The appellate court affirmed. Thus, it appears that such expert testimony would be admissible as long as a proper foundation is laid. The court could have dealt with this particular defect in terms of weight of evidence rather than admissibility, but the trial court cut to the heart of the matter, ruling that the evidence was not helpful to him. The opinion does not discuss the content of the purported testimony (alternative methods of funding or financing educational expenses), which presumably could be the proper subject of expert testimony.
Earning potential is a big subject in matrimonial cases. There is plenty of law regarding lost earnings in the context of personal injury and other cases involving damages, which could possibly be carried over to family law cases. The practitioner must remember that foundation can be an issue. For example, in Christou v. Arlington Park-Washington Park Race Tracks Corp., 432 N.E.2d 920 (Ill.App.Ct. 1982), the court held that impairment of earning capacity was a proper element of damages to be considered by the trier of fact. “Recovery, however, must be limited to such loss as is reasonably certain to occur (Citation omitted). Testimony as to loss of earnings which is merely speculative, remote or uncertain is improper.” 432 N.E.2d at 923. In this case, a restaurant owner was permitted to testify as to the average profitability of an average restaurant. The appellate court found that admitting this testimony was reversible error because owning a restaurant was merely an ambition that the plaintiff had never realized. This case also presents the rule that statutory interpretation is not a matter about which an expert witness is competent to testify, even if the expert witness is an attorney. 432 N.E.2d at 924.
People v. Williams
Another case dealing with lack of foundation was a domestic violence battery case, People v. Williams, 773 N.E.2d 1238 (Ill.App.Ct. 2002). Reversible error occurred when a police officer was allowed to testify as an expert as to the “cycle of domestic violence.” The court ruled that the foundation was inadequate:
“Perkins further testified he had been a police officer for 13 years and had received at least 100 hours of training with regard to domestic violence, with 30 to 40 of those hours on the nature of the relationship between a victim and abuser. Perkins also stated he had completed approximately 20 hours of college and police course work which involved the study of the “cycle of domestic violence,” and that he had responded to approximately 10,000 domestic violence calls. Based on this foundation, Perkins testified regarding the cycle of domestic violence whereby two people in a domestic relationship get along well, followed by a phase where they have disagreements and it becomes violent. The violence is later followed by a “honeymoon” phase. Perkins testified that this cycle is known to occur repeatedly in certain relationships.” 773 N.E.2d at 1240-1241.
The appellate court reversed on two bases: 1) The officer did not refer to the specific source from which he obtained this information; no testimony regarding the scientific basis for this evidence was presented, nor were any treatises or case law introduced indicating the general acceptance of the “cycle of domestic violence” in the scientific community. 2) Citing the rule set forth above on credibility (see In re B.J., B.J., and J.J., supra), the court held that this testimony was really nothing more than his opinion as to the credibility of the victim’s statements.
Similarly, in People v. Howard, 712 N.E.2d 380 (Ill.App.Ct. 1999), a murder conviction was reversed based in part on expert testimony. A psychologist testified that the child victim’s mother suffered from battered woman syndrome. The court held that this testimony was improperly admitted because it constituted merely a commentary on the complainant’s credibility. The court made this finding even though the psychologist had testified on the subject in approximately 180 trials; she interviewed the woman for 30 hours, reviewed police reports, interviewed others, and administered a mental status exam on the woman. The psychologist also testified that there was no evidence the subject was trying to deceive her during the interview. That statement was probably instrumental in the appellate court’s reversal. The court noted that in other cases, testimony regarding the same syndrome was deemed admissible to explain a defendant wife’s state of mind during the murder of her husband.
As stated in Jawad v. Whalen, supra:
“Generally, the opinion testimony of an expert is admissible if the expert is qualified by knowledge, skill, experience, training, or education in a field that has ‘at least a modicum of reliability’ and if the testimony would aid in understanding the evidence. (Citation omitted) However, an expert witness’s opinion cannot be based upon mere conjecture and guess (Citation omitted). An expert’s opinion is only as valid as the reasons for the opinion, and the trial court is not required to blindly accept the expert’s assertion that his testimony has an adequate foundation (Citation omitted). Rather, the trial court must look behind the expert’s conclusion and analyze the adequacy of the foundation.” 759 N.E.2d at 1011.
Think about what finding you want the judge to make; odds are, there is an expert that will make your argument more persuasive.
Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile.