While it doesn’t happen in every case, from time to time there is a request made by a client or opposing counsel to tape the meeting between the opposing expert.  This happens more frequently in contested custody cases, but it could happen as to any expert, I suppose.  The general rule seemingly had been that these sessions can be taped (with notice – not surreptitiously).  Why do people want to do this?  Some people are not trusting.  Others want to make sure that they are not misquoted in an experts report.  Some even do this if an expert is known to ask leading types of questions suggesting a response that may then be used against the party being interviewed.

A question recently arose as to whether the experts can be compelled to tape all interviews, not only of the one party, but of the children too.  In a reported (precedential) trial court opinion in the case of Koch v. Koch which was decided last year but approved for publication last week, the judge refused to allow all interviews to be taped.  Specifically, the court concluded that concludes that a party has the right to record his or her own interviews with a psychologist or psychiatrist, but does not have the right to compel the other party’s expert to record interviews of the other party or the parties’ children.

As to the general rule noted above, the judge here was not so sure and the opinion included a threshold discussion as to whether expert interviews in a custody case could be taped since the case that lawyers generally relied on involved the taping of a session with a psychologist in a civil litigation.  Notwithstanding the conclusion, the judge noted:

Accordingly, a custody evaluation is an expert report where the court expects, and is
assisted by, the independent professional judgment of a licensed mental health expert.  Requiring recordings could undermine the very purpose of the evaluation. If the children know that they are being recorded, and know that their parents are in a custody dispute, the children might be less candid for fear that their parents will hear what they say to the evaluator. Such recordings effectively bring the parents into the children’s interviews and could distort the information needed to prepare an accurate and balanced evaluation.


Continue Reading If you think that all meetings with experts can be recorded, think again

In an interesting unreported (non-precedential) decision released on October 13, 2010, the Appellate Division held that it was error to dismiss a case simply because a litigant was not ready to proceed on the date of a final hearing because they sought their own expert in a custody matter. 

In McCain v. Schultz the court, which had a detailed if not convoluted procedural history that delayed the matter somewhat, the court had appointed a custody expert to prepare a report.  When the report came in about 3 weeks before the final hearing date, the father’s lawyer wrote to the Court requesting an adjournment so that the father can obtain his own expert, as is his right under the Rules of Court.  The mother opposed the request allegedly given the age of the matter (but probably because the report was favorable to her position).  Rather than adjourn the matter, citing "rules" regarding timing for completion of "non-dissolution" (typically family court matters regarding custody or support between unmarried litigants) matters, the judge dismissed the matter without prejudice.  This appeal ensued.


Continue Reading What Do You Mean That My Case Is Dismissed Because I Want To Get My Own Expert?

If you have never been through the process of a divorce yourself you may not know how, at the end of the day, things are actually decided. For example, how do attorneys or the court calculate how much of a spouse’s pension or 401(k) gets divided?  How do attorneys or the court calculate the value of real property? Experts are obtained to appraise assets in order to obtain values.  Often parties each get their own experts and their are dueling appraisals.  If the parties cannot agree on a value, a court will have to hear testimony from both experts and make the call.

That was an issue that was recently addressed in the published Appellate Division decision of Pansini Custom Design Associates, LLC and Roger Parkin Joint Venture v. City of Ocean City and Patrick Newton and Saving Our Station Coalition, A-2003-07T1, decided May 14, 2009.

Many people who go through the process of divorce own real property.  If parties are unable to reach an agreement as to the value of real property owned so as to determine how much each may be entitled to, how does the issue get resolved?  Typically, the parties may either retain a joint real estate appraiser or each obtain their own real estate appraiser who will create an appraisal.  In the latter scenario, the result may be competing real estate appraisals and values.  If no resolution is reached among the parties and the issue is left to a court to decide in a trial, the importance and validity of these real estate appraisals will be tested.

There are experts available on nearly every topic if you look hard enough.  In family law, real estate experts abound.  Many attorneys have their “go to” experts or others who may solicit them for business.  No matter what, whatever expert is involved in your matter should be selected with thought and consideration to the specific facts of your case and the ultimate goals of the clients they work for.


Continue Reading Courts Can’t “Split the Baby” When It Comes to Dueling Appraisals