TYPES OF EXPERTS. Psychological/Psychiatric Experts are used to determine the mental health of the parties and/or children.

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1 WORKING WITH EXPERTS IN FAMILY COURT by J. Benjamin Stevens and Jenny R. Stevens The Stevens Firm, P.A. Family Law Center 349 E. Main Street, Suite 200, Spartanburg, SC :: (864) Attorneys who practice in Family Court rely on and work with experts in various fields on a consistent basis. The range of issues presented in a Family Court case require the harnessing of the expertise and knowledge of others in order to properly explain and present the complexities of the case to the Court. TYPES OF EXPERTS Given the range of issues present in Family Court cases, you can likely find an expert for any issue that arises. Nonetheless, the following is a brief list of experts who regularly interact with the Family Court. Psychological/Psychiatric Experts are used to determine the mental health of the parties and/or children. Forensic Psychologists are used to examine previous mental health assessments or help determine if mental health issues are present in the parties and/or the children which require treatment going forward. Custody/Parental Fitness Evaluators are used to determine each parties ability to parent and co-parent properly. Forensic Accounting Experts are used in cases with complex corporate structures, in case with high-value assets which are difficult to properly value or equitably divide or where it is believed on party is hiding assets. Vocational Experts are used to determine the employability and earning capacity of a party. GAL Experts are used in cases where a GAL may appear to be biased or is failing to properly perform their statutorily ascribed duties. Business Valuators are used to value business assets of the parties The Stevens Firm, P.A. All Rights Reserved. Page 1 of 6

2 Appraisers are used to value personal property, art, antiques, real estate, etc. Educational Experts are used to determine the educational needs of the parties children or the parties. Special Needs Experts are used to determine the needs of the parties child if they have special requirements. Whichever expert you use it is of the utmost importance that you work with a highly credentialed and respected expert. Why? Because sometimes it is not the conclusion the expert reaches, but his credentials which are important. On a contested issue, the court will typically side with the expert who has the better credentials. Further, the better credentialed your expert is, the less likely you will waste time in court arguing over whether the expert should be qualified as such. Precious court time can instead be spent presenting the experts full opinion and then arguing over the issues. IS YOUR EXPERT S REPORT/TESTIMONY ADMISSIBLE? Once you have engaged the services of an expert or opposing counsel has done so, it is important to determine whether the expert s testimony and report is admissible or whether the expert can be qualified as an expert. The following rules and holdings are the standards for qualification and admissibility. RULES OF EVIDENCE REGARDING ADMISSIBILITY OF EXPERT S REPORT Rule 702 of the South Carolina Rules of Evidence states: [i]f 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. See Rule 702, SCRE. However, this Court has never adopted that standard. Instead, prior to 1990, the standard for admitting scientific evidence in South Carolina was the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom. State v. Jones, 273 S.C. 723, 731, 259 S.E.2d 120, 124 (1979). See State v. Council, 515 S.E.2d 508, 517 (S.C. 1999)(emphasis added). In considering the admissibility of scientific evidence under the Jones standard, the Court looks at several factors, including: (1) the publications and peer review of the technique; (2) prior application of the method to 2015 The Stevens Firm, P.A. All Rights Reserved. Page 2 of 6

3 the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures. State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990). This type of evidence is also subject to attack for relevancy and prejudice. Ford, supra. See Council., 515 S.E.2d at 517 (emphasis added). South Carolina courts have not accepted the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993): In 1993, the United States Supreme Court found the Frye test had been superseded by the FRE and adopted new parameters for admissibility under Rules 702 and 703. Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. Before scientific evidence is admitted, the trial judge must determine the evidence is relevant, reliable and helpful to the jury. The Court suggested four factors to consider in deciding reliability in scientific evidence cases: (1) scientific methodology; (2) peer review; (3) consideration of general acceptance; and (4) the rate of error of a particular technique. Id. The Court stated if the evidence is reliable and relevant, the judge should determine if the probative value of the evidence is outweighed by its prejudicial effect. Id. The Court recently held the standard of review of a lower court's decision to admit or exclude evidence under Daubert is an abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Daubert, we find the proper analysis for determining admissibility of scientific evidence is now under the SCRE. When admitting scientific evidence under Rule 702, SCRE, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable. The trial judge should apply the Jones factors to determine reliability. Further, if the evidence is admissible under Rule 702, SCRE, the trial judge should determine if its probative value is outweighed by its prejudicial effect. Rule 403, SCRE. Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate. We conclude the trial judge was well within his discretion in finding the results of the mtdna analysis admissible under the Jones factors and Rule 702, SCRE. State v. Von Dohlen, 322 S.C The Stevens Firm, P.A. All Rights Reserved. Page 3 of 6

4 234, 471 S.E.2d 689, cert. denied, 519 U.S. 972, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996) (the admission of expert testimony is within the discretion of the trial court); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981) (the admissibility of evidence is within the trial court's discretion). This evidence assists the jury in determining whether appellant committed the crimes because it provides an objective confirmation of the subjective microscopical comparison performed on the hairs. Mitochondrial DNA analysis has been subjected to peer review and many articles have been published about this technology. The F.B.I. laboratory validated the process and determined its rate of error. Its underlying science has been generally accepted in the scientific community. Further, while forensic application of mtdna analysis is fairly new, the technology has been used in other contexts for several years. See State v. Council, 515 S.E.2d 508, 518 (S.C. 1999). South Carolina courts have not accepted the standard set forth in Frye v. United States, 293 F (D.C.Cir.1923): Appellant is attempting to apply the standard set out in Frye v. United States, 293 F (D.C.Cir.1923). In Frye, the court held scientific evidence only became reliable, and therefore admissible, when it had attained the general acceptance of the scientific community as a whole. However, this Court has never adopted that standard. Instead, prior to 1990, the standard for admitting scientific evidence in South Carolina was the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom. State v. Jones, 273 S.C. 723, 731, 259 S.E.2d 120, 124 (1979). This standard is more liberal than the Frye standard. See Council, 515 S.E.2d at 517. Rule 703, SCRE, states: [t]he 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 need not be admissible in evidence. See Rule 703, SCRE The Stevens Firm, P.A. All Rights Reserved. Page 4 of 6

5 Rule 704, SCRE, states: [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. See Rule 704, SCRE. Rule 705, SCRE, states: [t]he expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. See Rule 705, SCRE. EXAMINATION OF AN EXPERT Examining an expert in court is different from examination of a lay witness. It requires significant preparation and thought. Deposing an expert prior to the final hearing or the issuing of their report are essential to your preparation. Throughly researching the expert is also important. Below are some tips from James T. McLaren regarding the examination of an expert. JAMES T. MCLAREN S 15 RULES FOR EXAMINING AN EXPERT 1. Think about when to stipulate to the expert s credentials. 2. Think about when to offer the report into evidence. 3. During direct-examination, let the expert teach. 4. During cross-examination, use yes or no questions as much as possible. 5. Use the judge to control the expert only when there is no other resort. 6. Cross examine credentials if your expert s credentials are better than the testifying expert s credentials. 7. Attack where the expert exceeds his expertise. 8. Highlight inconsistencies in the expert s report. 9. Consider the use of constructive cross-examination -- use the opposing expert to bolster your client s credibility. 10. Make it appear that the expert was being subjective instead of objective. 11. Simplify the significant areas of dispute between the experts. 12. Attack illogical conclusions The Stevens Firm, P.A. All Rights Reserved. Page 5 of 6

6 13. Make the numerical differences between the expert s values easy to understand. 14. Use visual aids so that the judge can follow the testimony. CONCLUSION There are any number of ways to find an expert. The best source is usually your colleagues who have handled similar types of cases, as they will know who to use and (equally important) who to avoid. State or local bar associations may have listings or contacts, as well as national or regional organizations, such as the South Carolina Association of Justice or the American Academy of Matrimonial Lawyers. Listserves, blogs, and Google (a/k/a the Internet can also prove helpful in certain cases). Periodicals in specific fields of interest are also great ways to locate either an expert or a colleague who may have suggestions for an expert. No matter where you locate your expert, remember to carefully review their credentials. As mentioned above, it crucial that you find an expert who is highly qualified and/or respected in their particular field. However, while it is helpful, it is not necessary for the expert to have been previously qualified as an expert in Court. Any individual who can meet the criteria under the South Carolina Rules of Evidence can be qualified as an expert. For instance, if you use a local appraiser to determine the value of a party's property, that appraiser could possibly be qualified as an expert. We hope you find this material helpful and are available if you have any questions. You are welcome to visit our blog, or contact us at or We would like to extend a special thanks to our associate, Jonathan W. Lounsberry, for his assistance in compiling and preparing these written materials The Stevens Firm, P.A. All Rights Reserved. Page 6 of 6

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