Expert witnesses are some of the most useful participants in any trial. They offer an unparalleled level of expertise in extremely complex topics, and they provide several benefits to the legal teams that use them. They’re instrumental parts of nearly every type of case, both civil and criminal at various levels, and if you’re headed to the courtroom, it’s likely that you’ll want one on your team.
However, there is a unique type of litigation that brings into question the role of an expert witness and what exactly they have to offer. This is “Alternative Dispute Resolution” litigation.
We’re going to go over what alternative dispute resolution is, the point of it, and the various ways that expert witnesses can help you come out ahead in such a situation.
What is Alternative Dispute Resolution?
An alternative dispute resolution is a unique form of “litigation” because it’s actually not litigation at all. In fact, it’s an attempt to keep a problem from ever getting to the courtroom while still giving both parties a chance to resolve their differences.
This is done by bringing both parties together in a private location that is not the courtroom, and instead of a judge listening to testimonies, taking in the facts, and coming to a conclusion, an arbitrator or mediator is used to more or less guide the argument between both parties.
The parties involved will then debate in person and try to settle the issue at hand in a way that satisfies both parties while the mediator ensures that everything is fair and kept on track.
This legal process is useful because once things enter the courtroom, they’re in the judge’s hands. Alternative dispute resolution gives parties the chance to handle their problems in a way that doesn’t get the legal system involved in every detail, and assuming the two parties are capable of working together in such a setting, more favorable outcomes can be had on both sides of the equation.
What is Alternative Dispute Resolution Used for?
Alternative dispute resolution isn’t limited. It can be used for practically any civil argument to help keep things from going to the next level in the legal system. However, it tends to be most commonly used in family court.
Here are a few examples of when alternative dispute resolution might be used.
First, if a couple is getting divorced, and they need to figure out how to split their assets, but they aren’t so embroiled in a conflict that they simply refuse to talk about the matter, alternative dispute resolution can be the perfect solution. With a mediator involved, and proper supporting personnel for either side, the divorcing couple might be able to fairly and adequately split their assets in a way that doesn’t leave either of them with undue hardship, and they don’t have to enter the courtroom, and make things more complicated than they really should be.
Another common use for alternative dispute resolution is when custody is up for debate. This often goes along with the divorce example above, but it’s not always like that. There are instances when unmarried couples with children still need to negotiate a custody agreement that matches everyone’s needs and does what is best for the children involved. In this case, it works exactly like the asset splitting example above, the parties will come to an agreement on who will have the child most of the time when the other parent gets visitation, how holidays are handled, and even details such as how the pickup and drop off exchanges will be handled.
Of course, alternative dispute resolution isn’t just a legal process for couples. Common neighborly disputes, business partner disputes, and other situations often call for a mediator to attempt to resolve things before the courts have to get involved.
For example, let’s say that your neighbor has cut down a tree, and it crushed your privacy fence. The neighbor is on a fixed income and can’t afford to just outright fix your fence. Neither of you really wants to take the issue to the courtroom and turn it into a lawsuit, but a resolution clearly has to be reached. Alternative dispute resolution can be used to come to a payment agreement that gets your fence fixed without putting your neighbor through too much unnecessary financial hardship all at once, or whatever else you and the other party agree on.
Of course, in any situation, if alternative dispute resolution doesn’t prove to be an effective solution, matters tend to be elevated to the courtroom, and then things get far more complicated. That’s why, if you’re in the position to leverage alternative dispute resolution as a solution to your problem, it’s best to enter the dispute with a genuine effort to resolve the problem in a mutually beneficial way, and you should come prepared with a strong case. That’s where expert witnesses come in, but we’ll talk about that more, later.
What is an Expert Witness?
An expert witness is an individual who is extremely experienced in a specific field, and they lend that experience to legal teams and disputing parties to help inform either side of more complex topics that they might not understand from a layman’s point of view.
Typically, an expert witness is used in a court case to explain points to the courtroom and shed light on topics that the average person doesn’t tend to know too much about. This can be something like a doctor explaining the potential long-term effects of various injuries, an offer describing proper protocol in various situations, and similar things.
Qualifications to be an expert witness are quite intense. Since the individual is expected to be regarded as a true expert on the topics they present, they have to have many years of hands-on experience in their field, a long list of academic and career-based accomplishments, and membership in multiple prestigious groups most of the time.
These individuals don’t have to be solely a courtroom tool, though. Expert witnesses can also participate in alternative dispute resolution processes for various reasons. This is a concept that many don’t consider when preparing their argument for debate, and it’s often costly.
What Does an Expert Witness Do During Alternative Dispute Resolution?
For the most part, despite the actual process being dramatically different from a proper court case, an expert witness does the same few tasks that they do for any other court process.
An expert witness starts by informing you of various things and helping you build your argument, or they can present their opinions to the arbitrator and help keep all participants informed about various aspects of the case regarding their expertise.
Like in traditional cases, expert witnesses are expected to maintain a certain standard with what they present to the case. They need to be neutral parties, their testimonies must be built on factual accounts of things they have experienced firsthand in their professional field, and what they present to the court cannot be persuaded by the hiring team; it has to be an unbiased professional opinion based on firsthand experience.
Examples of Expert Witness Involvement in Alternative Dispute Resolution:
Since alternative dispute resolution is so different from a traditional court case, here are some examples of what one might due in such a situation.
1: Child Psychologist Provides Information About Time Sharing in Split Families
Oftentimes, parents have a hard time letting go of their children in a custody dispute; even if they are going to receive proper visitation and ample opportunity to bond with their children. That’s reasonable, but some of the solutions might have adverse effects on the child. Perhaps the parents want to keep the child for a month alternating between who has the child at the end of each 30-day period. Let’s assume that there is a proven link between agreements like that and some sort of psychological reaction in children. An expert witness who professionally deals with that issue might present their opinions to persuade the party proposing it to try something less detrimental to the child.
2: Accountant Helps Describe Mutually Beneficial Asset Split
Using the divorce example from earlier, maybe there are some more complicated assets such as investment portfolios that need to be split in the divorce. An expert witness who is an accountant might be brought in to explain how that type of split should be conducted to preserve as much value as possible, whose responsibility it is to interact with the portfolio, whether or not liquidating the assets and splitting fiat is more appropriate, and any number of other things that might be important for that specific situation.
3: Arborer Explains Proper Felling Protocol
In a similar situation to what we described earlier with two neighbors arguing over a fallen tree and damaged fence, let’s assume that the person with the fence is claiming the tree was unprofessionally and dangerously cut down; increasing the other person’s liability in the situation.
An arbor might explain what proper protocol is in such a situation, describe the felling process, and give an opinion on any improper techniques used and whether they caused the event to occur.
The Advantages of Hiring an Expert Witness for Alternative Dispute Resolution
There are several reasons that you should consider getting an expert witness to help you and your team during mediation.
First, the information provided by an expert witness is typically considered to be highly credible and factual. If they present something that is useful to your case, then you can expect the mediator and the opposing party’s team to take it seriously.
Then, there’s also the help that an expert witness can provide when it comes to building your argument in the first place. Even though alternative dispute resolution is a process used to keep things civil and between the two parties, it’s still a complex process that you want to get right the first time. An expert witness’s guidance can help you and your legal team to build new argument points or more aptly defend against claims and proposals made by the other side.
Finally, having an expert witness who provides information that tends to make your case look solid and far more likely to win in the courtroom than the opposition is a good way to prevent the opposition from deciding to take it that far in the first place.
The Disadvantages of Hiring an Expert Witness for Alternative Dispute Resolution
Expert witnesses are powerful tools in any type of legal process, but that doesn’t mean that they’re always the right tool to use or that they’re perfect for every scenario. In fact, in alternative dispute resolution, there are some drawbacks and challenges involved in hiring an expert witness.
First, while the rules that expert witnesses have to follow in an alternative dispute resolution are far more lenient than they are in a traditional courtroom setting, there are still rules that must be followed. If you’re not fully aware of those rules and how they affect your usage of an expert witness, you can experience problems in your dispute, or they might pop up later if the problem goes further into the legal system.
There’s also the matter of whether or not the expert is necessary. In some cases, it might be more cost-effective to forego the use of an expert witness, because there simply isn’t much that they can offer in some situations.
Finally, there’s the issue of the witness’s testimony not aligning with your needs. A testimony is supposed to be unbiased and based on firsthand experience. That might not align with your argument, or a portion of the presented information might work against you.
This is why it’s important to vet your potential expert witnesses exceptionally if they’re a valuable part of your case at all.
Getting the Right Expert Witness
Determining whether you need an expert witness is one thing, but getting one that will benefit your argument and push your case further is a different problem entirely.
If you are in need of an expert witness, or you want guidance to help you determine whether one will be of use to your case, contact Legal Litigation Insights Group, today.