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  1. #1
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    Aug 2011
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    Default Depose Instead of Calling an Expert Witness to Trial

    My question involves a marriage in the state of: CA

    I am challenging the recommendations of a custody evaluator. We have been referred to trial (short cause), and I am wondering how to go about the challenge.
    Specifically, I would like to avoid the exorbitant fees of calling the evaluator to trial, and I know the other party will not call him to trial. I was wondering if I can depose the evaluator before trial and have that presented to the court as testimony instead of requiring him to appear in person.
    Thanks all ahead of time. :-)

  2. #2
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    Default Re: Depose Instead of Calling an Expert Witness to Trial

    You are choosing to challenge the evaluator's recommendation - your ex will now have the right to cross-examine, too.

    A deposition cannot be cross-examined.

    Do you feel that the evaluator made an unlawful decision? If you're truly going to go ahead and fight this, I strongly recommend an attorney. Because this could get very expensive for you, very very quickly.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  3. #3
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    Aug 2011
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    Default Re: Depose Instead of Calling an Expert Witness to Trial

    The issues on the challenge are failure to comply with the Rules of Court regarding custody evaluations, which his violations are foregone. The deposition would be brief and comprise of a few yes or no questions.
    "Did you receive my list of collaterals, including mental health professionals for the children of this case?" (Yes or No-and yes he did.
    "Did you call any of those collaterals? (Yes or No - No he didn't and they have all stated in writing that he never contacted any of them)
    "Do you recall me asking you if you would speak with my fiance as part of the interview?" Yes or No (Yes I did, he said, "He's not going to tell me you are wrong is he?[...] Then I see no reason to speak with him."
    "Did you interview the other party's wife?" (Yes or no, yes he did)
    "Did you interview the other party's child of his current relationship?" (Yes he did)

    See what I'm getting at? He is required, by law, to conduct a balanced evaluation and by refusing to contact my collaterals and my fiance, yet interviewing the petitioner's family and collaterals, the appearance of bias is formed and law says he must interview all collaterals when possible [See: California Rules of Court rule 5.220(e) & rule 5.220(h)]

    If I am going to depose him as to those facts and nothing else, (He said I was a good mom, basically liked my ex better), then why would the other party want to cross examine those facts when those are the only challenges to his evaluation? (I guess there's any number of answers to that question-withdrawn). But if I depose him with no intention of calling him to trial, wouldn't the other party have to pay the evaluator's fees for calling him to trial, instead of me?
    BTW, the judge has already received a declaration by me regarding those facts and codes and has said in court, prior to setting it all for trial, that he is not convinced he will uphold the evaluator's recommendations based on my arguments. Hope he sticks to that.

    Thanks again. Any and all insight is welcome and appreciated.

  4. #4
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    Default Re: Depose Instead of Calling an Expert Witness to Trial

    I'm not sure you're interpreting the rules correctly. While the evaluator MUST legally do certain things, the rules do NOT say that s/he MUST interview certain people.

    Read more: here
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  5. #5
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    Default Re: Depose Instead of Calling an Expert Witness to Trial

    It's not unusual for parties to hold de bene esse / trial depositions for experts, and to have the expert testify at the deposition instead of at trial. The principal benefit is being able to schedule the expert's testimony to be given at a time and place when the expert is available, avoiding the possibility that the expert won't be available at the scheduled trial date and potentially saving money (particularly if you would have the expert sitting in the courthouse for one or more days waiting to testify). You would normally do this with the assent of the other party, there are special notice requirements, and you may want to arrange a video deposition so that the judge can actually watch the testimony (or read the testimony but watch select portions); you can discuss the details and strategy with your lawyer.

    Whatever you intend to ask on direct examination, be aware that the other party gets to conduct a cross-examination which may be substantially longer and, as it will be your trial deposition, you should expect to bear the cost of the deposition and transcripts. You may believe that the other party won't see a need to cross - I would expect, though, that they'll want to wring every useful tidbit of information out of the expert.

  6. #6
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    Aug 2011
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    Default Re: Depose Instead of Calling an Expert Witness to Trial

    Thank you for pointing that out to me. If I am reading them worng, I certainly need to be corrected on that. Please help me know if I understand this one correctly: Rule 5.220(e) - All evaluations must include2) Data collection and analysis that are consistent with the requirements of Family Code section 3118; that allow the evaluator to observe and consider each party in comparable ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each child's developmental needs; the quality of attachment to each parent and that parent's social environment; and reactions to the separation, divorce, or parental conflict.

    The way this reads to me is that if he has access to other professionals that can assist him in making a determination with all factors consider, he must contact them, right? Isn't that what it means by saying "from multiple sources when possible"?
    Thank you, Dogmatique. :-)

    Thank you Mr. Knowitall. Your advice and warnings make sense. I will definitely look into what you have said and make strategies accordingly.

  7. #7
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    Default Re: Depose Instead of Calling an Expert Witness to Trial

    It says "MUST" include data collection - however it does NOT say that this data MUST include interviews and information from multiple sources. That's where I think you might be misreading it a little.

    If there are other sources, they are certainly available - but the rules do not compel the evaluator to interview every source.

    I truly do think you need to speak with an attorney.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

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