this post by Bill Rogers

(note: this blog is NOT legal advice)

The last thing a judge needs in a divorce trial is an expert witness who, instead of remaining neutral and objective like they’re supposed to, joins the fray as a partisan fighter. In a recent and unfortunate case out of Ontario,┬áthe wife’s financial expert did exactly that. “In my view,” ruled the judge, “he became the wife’s general to lead her into battle.”

The fight involved a company owned by the wife and husband. Things began to go off the rails shortly after the couple separated, when the wife thought she was being cut off, and therefore decided to “take what she felt she was owed.” She went to a printer and had secret cheques made, and cashed them. Then she hired a financial expert to assess the company’s status and provide evidence for the trial, apparently encouraging him to be similarly aggressive. The judge was not amused.

For one thing, the expert’s demands to the husband for financial disclosure entered the arena of the absurd. It was a “never-ending search for minutia,” said the judge, noting that, at one point, the expert actually demanded documents he already had.

Moreover, the expert largely snubbed opportunities to go to the company’s office to inspect documents, question company accountants, and discuss the matter with the opposing expert in order to narrow the differences between them. “Instead,” said the judge, “he embarked upon his own search. He conducted himself like an advocate instead of a neutral, objective expert attempting to assist the court. He was more on a path to demonstrate some nefarious activity.”

Such a partisan approach is not appropriate for any kind of expert involved in litigation, because it taints their objectivity. True, noted the judge, experts are paid by one side in an adversarial proceeding, and their interests are “aligned” with that party. (Here, the expert’s fees were well into six figures.) Nevertheless, they “must be neutral and objective, and to the extent they are not, they are not properly qualified to give expert opinions.”

In this case, the wife’s expert even admitted in cross-examination that other judges in previous cases had found him not to be impartial, conducting himself like an advocate,and disregarding his obligation to be neutral. Despite that admission, the expert went on to testify that, in his own eyes, he has always complied with his duty, and the judges who made those previous rulings against him “had their opinion, and he had his.”

This cavalier statement was “disrespectful of the court,” said the judge. His ruling comes as no surprise but should still be a warning to expert witnesses everywhere and those who hire them — in spite of the big fees the wife’s expert charged, his testimony was given “very little weight.”

Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice.