During divorce court proceedings, attorneys don’t always take the opportunity to prevent consideration of evidence based on unreliable methodologies. 

Outside of the Federal Rules of Evidence, depending on your jurisdiction, you can use Daubert, Frye, and other standards to survive a challenge to an expert witness’s data, testimony, or opinions. They can also help you find ways to stop the presentation of questionable evidence. Whichever side of the courtroom you’re on, you can use these rules to your advantage.

Testing the Evidence

The Federal Rules of Evidence (“FRE”) 702 define which courts the law applies to, who can provide evidence and general guidelines on which to base the testimony. Oftentimes, the courts leave admissibility to a judge or jury decision. Most state regulations are based on precedent-setting cases such as Frye v. United States (1923), Daubert vs. Merrell Dow Pharmaceuticals, Inc.(1993), and Kumho Tire Co. v. Carmichael (1999).

In Daubert vs. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court ruled that in federal trials, an expert’s testimony must be based on “scientific knowledge” that meets a “standard of evidentiary reliability.” It also stated that “[T]he trial court has the duty to act as a ‘gatekeeper’ to exclude speculative expert testimony.”  Roughly 40 states have adopted the Daubert rules or a modified form of them, while fewer than ten follow Frye or an altered version of it (“Frye-plus”), and some, like Nevada, have their own unique laws. 

Trends in Daubert Challenges

For several years, PricewaterhouseCoopers’ survey “Daubert Challenges to Financial Experts” has tracked nationwide trends. They’ve found that the specialists most likely to have their testimony accepted in court are appraisers, while accountants and economists are among those “most frequently challenged.” Since the survey started in 2000, overall, the number of challenges have increased. In the most recent survey, the top reason for denial continued to be “lack of reliability, either on its own or in combination with other factors.” Another common cause has been insufficient data or the use of non-standard methods. In 2019, the second most common excuse for exclusion was testimony considered irrelevant to the case.

Making or Breaking a Daubert Challenge

You can take a few basic steps to make your expert’s opinions “air-tight” enough for a case and you may also use them to poke holes in the opposing witness’s testimony.

  1. Check their credentials – There are generally no national minimum requirements for the number of credentials specialists must have to testify, nor are hearings on experts mandatory. The expert should have a detailed resume or curriculum vitae (CV) that lists their qualifications (education, training, and experience). Look for any peer-reviewed literature your expert has written on the subject matter they will cover in their testimony.
  2. Establish credibility – Carefully examine the expert’s documents, including any peer-reviewed material, to assess the reliability of their claims and spot any inconsistencies. Even if other publications don’t back up their testimony, the expert should be able to explain why it hasn’t been included (a la Primiano v. Cook, 2010). The Cornell University Law School recommends that you:
  • determine if the theory or method the expert describes in their testimony can be and has been tested
  • see whether it has been subjected to peer review and publication (and its known or potential error rate)
  • research the standards behind the method
  • check whether it’s generally accepted in their field or a relevant scientific community
  1. Get detailed written reports – For appraisals, the analyst should describe their methodologies and why they use them – based on industry-accepted practices — to show their authority and reliability. For example, business valuations involve different methods or standards of valuation. Industry membership organizations, such as the American Society of Appraisers (ASA) or the Institute of Business Appraisers, Inc. (IBA) have their own set of ethical and professional standards valuators must meet.
  2. Follow the rules – Look to precedent-setting cases and the Federal Rules of Evidence for guidance, but keep in mind that these opinions might not apply in your state. Also, as needed for appraisals, get a good grasp on the different business and real estate valuation methods accepted under your state laws. Check past cases in your state involving experts’ qualifications to see how the courts have handled them.

Greater knowledge of Daubert challenges may make the legal process more efficient and prevent unproven testimony from wasting time and money. Our CFL™ course can help you enhance your understanding of these and other complex financial matters in family law. Find out more in our free information packet today.