The California Court of Appeal recently published Marriage of Winternitz. The holding was that a court-appointed expert custody evaluator’s (1) failure to adhere to all the requirements of the California Rules of Court and (2) admission that he made significant errors does not require a trial court to automatically remove him or to exclude his written report. Rather, trial courts are allowed discretion to consider those failures in potentially giving an expert’s reports and testimony less weight in the overall balance of evidence.
At one level, the case provides commonsense guidance for trial courts who can still benefit to one extent or another from an expert’s insights, even if his process might have been flawed.
At another, it reminds us that experts are human. The Winternitz expert, who is otherwise nationally well-reputed, admitted to personnel difficulties in his practice, a loss of phone records, other “problems galore” in his office and “a variety of errors” in his records.
Trial attorneys often need experts. Some are court-appointed under Evidence Code section 730. Others are hired as private consultants or witnesses for hearings and trials. They provide anlaysis, insights and opinions beyond the abilities of lay witnesses.
But they require affirmative handling. Attorneys, charged with managing their client’s cases, are ultimately responsible for some oversight of their experts’ methodologies and procedures. We too often see counsel close their eyes in essentially delegating their cases to experts. In a court hearing just the other day, I heard opposing counsel explain to our judge that he was merely forwarding his accounting expert’s (flawed) legal arguments, as opposed to his own.
Winternitz reminds us that experts are human. “Between the lines,” it also cautions attorneys to monitor their experts and refrain from subcontracting their professional duties.