Plaintiff spouse versus defendant spouse in a court action will each choose an expert to do the same thing–analyze the business finances and property and provide a value. At trial, each expert testifies and is cross-examined by the attorney for the opposing party. The judge may adopt the opinion of one of the experts, or may decide based on consideration of both opinions, perhaps giving one more weight than the other.
When both spouses engage the same expert, the parties retain control of the ultimate decision—whether it be the value of an asset, the amount of spousal or child support with tax considerations, or the parenting schedule between their households. In Collaborative Law divorce, the process agreement signed by the parties provides that any experts needed are jointly retained. The expert works on behalf of both parties, who are each entitled to the expert’s work and the information on which it is based. The parties may agree to be bound by the expert’s opinion, or they may agree they will use the expert’s opinion as a basis on which they will negotiate further. In the Collaborative process, the parties agree that if settlement is not reached, the written work or oral conclusions of the expert will not be admissible in court, absent their joint decision otherwise.
Joint experts work differently
Both parties are the clients of the joint expert, who as a neutral must take into account each of their concerns. The expert will also be working with the attorneys for both parties, sharing equally with the attorneys the clients’ communications and the expert’s conclusions. Each attorney becomes informed of both parties’ perspectives and preferences—not only those of his own client. For example, there are many considerations in valuing a business, and often the party working in the business has opinions and knowledge about the business that are quite different from the other party.
Yet the joint expert in that situation must address the agendas of both parties—by providing unbiased responses, based on the facts of the business gleaned by the expert, and the expert’s own experience and knowledge of how such facts are treated in valuations. The parties will compare their perspectives to the conclusions of the expert as they explore whether they can agree upon a value of the business or even the income generated by the business. Perhaps they will never agree on a value or amount, even after the expert provides an opinion, but they may rely on that opinion to narrow the parameters within which they negotiate. In doing so, each party must consider what she would have to show in court in order to maximize the chances a judge would adopt her position.
Other Joint Experts
A simpler example of a joint expert is a real estate appraiser for the parties’ home. The parties may agree at the outset whether they will be bound by the appraiser’s value. They may agree they will only accept a value within a range they define. They may agree that either can reject the value provided, and they will obtain a second value and average the two. Or they may agree on whether there will be next step once they obtain the value.
The parties may also engage a neutral to assist them in developing a parenting plan. A mental health professional who is knowledgeable about the psychology of divorce and the effects of divorce on children can provide sound information to parents. Rather than dictating a parenting schedule, the neutral expert will help the parents identify their parenting priorities and evaluate how those are reflected in the parenting plans under consideration.
Divorcing parties may agree on how they will work with experts in any process—Collaborative Law, mediation, negotiation with the assistance of attorneys, or even in litigation. In my experience clients often regard a jointly retained expert as the most efficient way to proceed because it avoids the battle of the experts. The efficiency is derived from both parties working in the same context and having the same information, which can enhance the ability of the parties to compromise. The parties are bound to a particular outcome only when they decide what it will be.