1. PREPARE YOUR OWN EXPERT: When preparing for a custody trial, avoid becoming so focused on perfecting your own cross-examination of the adversary’s expert that you neglect a thorough preparation of your own expert’s testimony. This is a monumental mistake. Preparation of one’s own expert—both with regard to direct examination and cross-examination by the adversary—can be the difference between winning and losing the custody trial.
Review your expert’s report in great detail and discuss any questions that you have with regard to the report in depth with your expert. If there are areas of weakness in the report, make sure that your expert knows how to address these weaknesses in terms of responding to both direct and cross-examination. Never assume that simply because the expert wrote the report, he or she remembers every aspect of the report by the time trial rolls around. Moreover, never assume that the expert is prepared to respond to aspects of the report that may not be favorable to your client. Where areas of weakness do exist, find a way to soften them first through direct examination, so that the adversary cannot discredit your expert with the “smoking gun” by bringing the weakness to light for the first time during cross-examination.
Conduct a trial run (or two…or twenty) of your direct examination with your expert. Do not simply provide your expert an outline or notes to study. The expert needs to understand your style, and you need to assess the expert’s ability to answer questions in a credible and understandable manner at trial. The expert might write the best report in town but have little ability to articulate the contents of the report in a way that connects with the judge. The report will not help your client out if the expert is not able to present it to the judge in an intelligible manner.
Prepare cross-examination questions for your own expert. Put yourself in the shoes of your adversary and put your own expert on the hot seat as though he or she were at trial and under examination by the other party. Most experts appreciate this exercise, which serves as a dry run for the real trial.
2. FAMILIARIZE YOURSELF WITH THE EXPERTS’ FILES: Prior to trial, serve a demand for production of the opposing custody expert’s entire file. By reviewing the entire file, you can often find inconsistencies between the contents of the file and what is ultimately put in the final report. Most experts take in depth notes. If you are able to find notes in the file that would be negative to the expert’s client (i.e., the parent you do not represent) and which ultimately do not make it into the report, you can discredit the expert. Similarly, the adversary’s notes could contain positive feedback regarding your own client that does not make its way to the report. The credibility of the adversary’s expert can be undermined if he or she is not prepared to answer why notes that could advantage or disadvantage one of the party’s in connection with the custody decision were excluded from his or her final report.
Review the bills prepared by your adversary’s expert. Is it possible that the expert had more interviews and phone conferences with the parent he or she was retained by than with the other parent? If the expert’s report reflects an equivalent amount of contact with both parties in rendering his or her report, while the bills reflect otherwise, the expert’s credibility can be undermined.
Be prepared for the adversary to know the contents of your own expert’s file. That means you should be familiar with the contents of your expert’s file and be prepared to address any inconsistencies between what is in the file and what makes its way to the final report.
3. KNOW THE RESEARCH CONDUCTED BY EACH EXPERT: In most every custody report, experts refer to the specific research relied upon by that expert in rendering his or her report. Too often, practitioners simply take the expert at his or her word with regard to what this research represents and fail to review the underlying research itself. This can be a costly mistake.
With regard to your own expert’s report, ask your expert to provide you with a copy of any underlying treatise; report; or study he or she cites. Familiarize yourself with the research and confirm that it corresponds with what your expert claims it supports in his or her report. Ask your expert whether he or she is aware of any study or other research which contradicts the research upon which the expert relied in support of his or her opinion. If your expert is unaware of such research, do the homework yourself. You do not want your expert to be caught unprepared during cross-examination with research that completely contradicts the research which serves as the basis for your expert’s opinion. Make sure to require disclosure from your adversary prior to trial of all reports, treatises or other evidence he or she intends to introduce at trial. This will give you a heads up as to any research your adversary may rely upon to undermine the validity of your own expert’s report.
Review any research upon which the adversary’s expert relies in rendering his or her report. Your own expert may be able to provide you with research that contradicts the research relied upon by the adversary. If your own expert is unable to do so, conduct your own research; inquire of other experts in the business; and obtain any research you can to undermine the research cited to by the adversary’s expert in his or her report.
4. KNOW THE HISTORY OF YOUR ADVERSARY’S EXPERT: In advance of trial, research whether your adversary’s expert has previously testified with regard to issues that are similar to the issues in your case. If possible, obtain copies of transcripts from those prior hearings. If you are able to find a case where the opposing expert testified in a manner that is inconsistent with the contents of his or her report in your own case, you can undermine the credibility of the expert—especially if he or she is unprepared to address this situation on cross-examination. (Remember that this rule goes both ways, such that your expert should be prepared to address any prior testimony he or she gave in another case which would appear to contradict his or her report in your case.)
5. KEEP IT SIMPLE: Custody reports are often extremely lengthy. The purpose of direct examination of your own expert is to convey the substance of the report to the court in a Cliff’s Notes version. Do not use your direct examination as a means to have your expert simply recite the report onto the record. The judge does not need your expert to re-recite the date of the party’s marriage or the date of Complaint for Divorce. Rather, focus on the areas of the report that directly relate to factors bearing on a decision regarding custody and parenting time. Weed out areas of the report that will likely have little effect on the judge’s decision. For example, if one parent reported drinking beer in college, this is unlikely to be the case cracker that proves that parent is unfit to care for his or her child.
As to cross-examination, plan carefully. Focus on areas where you can unquestionably undermine the credibility of the expert’s report. An hour of focused cross-examination, in which every question leads to an answer that discredits the witness, is far more effective than days’ worth of rambling cross-examination where the expert is left with the opportunity to further bolster his or her findings. Remember the cardinal rule that you should never ask a question during cross-examination if you do not know exactly how the examinee will respond.
*Megan S. Murray, Esq. is a partner at Paone, Zaleski, Brown & Murray, with offices in Woodbridge and Red Bank, New Jersey. She practices exclusively matrimonial law.