Use of experts in divorce litigation

Divorces, like general civil litigation, involve the use of experts in a variety of areas.  This article is the second installment in a series providing general information about the use of expert testimony and opinion testimony in divorce litigation.  The entire Chapter regarding the Use of Experts in Divorce Litigation is due to be published by MCLE New England in an upcoming book:  A Practical Guide to Divorce in Maine.  The next installment in this series will address Opinion Testimony by Lay Witnesses.

Maine Rules of Evidence

The Maine Rules of Evidence apply to the admissibility of evidence in divorce proceedings.  See M.R. Evid. 1101(a). The admissibility of expert testimony will be governed by Rules 701 to 705 of the Maine Rules of Evidence.  A thorough understanding of Rule 702 (testimony by experts) and 703 (basis of opinion testimony by experts) is necessary as you prepare to assess the admissibility of expert testimony in a particular case. As a preliminary matter, a judge must determine pursuant to Rule 104(a) (Preliminary Questions) whether expert testimony is admissible. The preliminary questions of admissibility are twofold:

1.  Whether the disputed fact is a proper one for expert testimony; and

2.  Whether the expert is qualified by education, training, or experience to give the opinion sought.

The admissibility of expert testimony is within the exclusive province of the trial judge. The trial court’s decision will be honored on appeal unless the judge made an error of law or there was clear abuse of discretion.  Richard Field & Peter Murray, Maine Evidence § 702.1 (Tower 6th ed. 2006) [hereinafter Field & Murray].

Testimony by Experts

Rule 702 of the Maine Rules of Evidence states:

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.

A proposed expert is not required to gain his expertise by showing he or she has “knowledge, skill, experience, training, or education” collectively; any basis of expertise is sufficient.  While many experts are qualified on the basis of their education or training, “experience” is an independent basis of qualification.  Therefore, carpenters, mechanics and other trades may qualify as experts.  Field & Murray, Maine Evidence at § 702.3.

Once the trial judge determines the expert witness is qualified, a determination must be made as to whether the disputed fact is a proper one for expert testimony.  Generally, because divorce trials are held before a judge only, the evaluation of admissibility tends to be less rigorous as compared with a jury trial.  Judges are normally concerned that an expert may have a disproportionate impact on a jury’s evaluation of disputed facts.  Since divorces are before only a judge, trial judges normally admit expert testimony, even if the basis or admissibility of the testimony is questionable, believing they have the skill and experience to evaluate and assign weight to expert testimony and disregard it where appropriate.

Basis of Opinion Testimony

The primary difference between an expert witness and a fact witness is that the expert is allowed to testify with respect to “opinion or inference,” including the ultimate issue to be decided by the judge.  Rule 703 of the Maine Rules of Evidence states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data may not be admissible in evidence.

The rule allows an expert to base an opinion on firsthand observation or a review of data and other information provided to the expert. Experts are also allowed to attend trial and hear the testimony directly from testifying witnesses.  An expert can rely on facts “made known to the expert at or before the hearing.” M.R Evid. 703.  As a general rule, when practicable, experts should attend trial and be able to listen to the testimony of fact witnesses and especially the testimony of any opposing expert. This procedure provides a solid foundation for your expert’s testimony and creates focus and interest for the court. Good experts listen and adapt to the testimony as it is admitted, as opposed to the dry and oftentimes tedious review of data.  Try to make the presentation simple, cohesive, and interesting.

The key provision in Rule 703 permits the expert to rely on facts or data that need not be admissible in evidence. Warren v. Waterville Urban Renewal Auth., 235 A.2d 295, 300 (Me. 1967).  As long as the facts or data can be demonstrated to be “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences,” the expert may consider the information and rely on it to form an opinion.  M.R. Evid. 703.  The rule can be abused to try to admit otherwise inadmissible hearsay.  The Law Court has held that Rule 703 does not authorize the admission of hearsay evidence merely because an expert has relied upon it in forming his or her opinion. Henriksen v. Cameron, 622 A.2d 1135, 1144 (Me. 1993). For example, it is acceptable for an expert to rely on hearsay evidence when forming his or her opinion or making an inference, however, that hearsay which formed the basis of the opinion is not automatically rendered admissible. In re Soriah B., 2010 ME 130, ¶ 19, 8 A.3d 1256.

Rule 705 governs the disclosure of facts or data underlying the expert’s opinion. The rule eliminates the need for the expert to set forth in detail the facts or data upon which the opinion is formed. The expert may testify to the opinion directly. The rule eliminates the potential that a testifying expert will attempt to admit into evidence hearsay or other information which may not be otherwise admissible. Of course, Rule 705 preserves the right to examine the expert with respect to the underlying facts or data relied upon by the expert during cross-examination. Obviously, one must understand the risk of opening the door to allow otherwise inadmissible hearsay to be discussed and introduced if inquiry is made during your examination. You must weigh the value of the impeachment if you believe the facts or data do not support the opinion against the opportunity for opposing counsel to bring out further otherwise inadmissible hearsay data during redirect examination.

Rule 704 allows an expert to testify to the ultimate issue to be determined by the judge.  Rule 704 provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

Under prior law, experts were not allowed to testify concerning the ultimate issue to be decided by judge or jury.  Rule 704 abolished the old rule. Thus, in a divorce context, experts may be permitted to testify that certain property is marital or nonmarital property even though the ultimate determination is made by the judge.  The same is true with valuation issues even though the ultimate determination of value is made by the judge.  Rule 705(a) was drafted to eliminate the necessity to use hypothetical questions to elicit expert testimony.  Field & Murray at § 705, Advisor’s Note.

The author of this article, Gene R. Libby, is a founding partner of Libby O’Brien Kingsley & Champion, LLC.  Gene is a highly experienced trial lawyer who practices primarily in the areas of family law, civil litigation and criminal defense.

Gene R. Libby

Gene R. Libby

Gene has a rich history of litigation experience over the last 30 years. He has tried over 100 civil and criminal jury cases to verdict. His practice focuses on a wide variety of civil and criminal litigation representing individuals and small businesses, including divorce, real estate disputes, small business litigation, elder law, personal injury, professional… Read more »