Expert witnesses play a crucial role in helping the court make informed decisions in litigious cases. In fact, an expert witness’ testimony can significantly impact the outcome of the legal proceeding. For that reason, many attorneys turn to expert witnesses when looking for professional support on trust and estate litigation matters.
Below we highlight the role of an expert witness as it pertains to trusts and estates and the Uniform Prudent Investor Act (UPIA).
The Role of an Expert Witness
An expert witness is an individual who provides expert testimony during legal proceedings. The expert witness is typically hired by one or more parties, such as the plaintiff’s counsel, defendant’s counsel, insurance company, or even the court itself. An expert witness can also be used during mediation to provide impartial assessment and opinions on guardianship disputes.
In their role, the expert witness is called upon to provide specialized knowledge, analysis, and opinions on a particular subject or field of expertise. Their responsibilities can include:
- Educating the court on complex concepts
- Breaking down technical details consumable for a jury
- Offer professional opinions and conclusions
- Review and analyze evidence, documents, or data
- Prepare written reports detailing their findings
- Formulate legal strategies and provide general technical guidance to attorneys
The primary goal of an expert witness is to enhance the court’s understanding on complex issues and contribute to the fair resolution of the legal dispute.
Leveraging Expertise During Trust and Estate Disputes
In trust and estate disputes, the use of an expert witness can be instrumental in achieving a fair and just outcome by providing clarity, expertise, and professional analysis of the complex, and often emotionally charged, issues involved.
An expert witness can help lend credibility to an ongoing legal, financial, or interpersonal dispute. Here are just a few ways the expertise of a professional can be used during litigation:
Uniform Prudent Investment Act (UPIA) Compliance: Ensure the trustee acted in compliance with the UPIA throughout the investment and monitoring process.
Forensic Investment Research: Examine financial records and detect irregularities in cases of alleged financial mismanagement.
Evaluating Fiduciary Duties: Assess whether the fiduciary acted in accordance with their legal obligations and industry standards.
Valuation and Appraisal of Assets: Provide professional appraisal of estate assets, such as real estate, heirlooms, businesses, and other personal items.
Asset Tracing: Identify the concealment or misappropriation of assets within the trust and estate.
Testamentary Capacity: Assessment from a psychological professional to assess whether the trustor was in right mind in situations of will contests and validity.
Qualifications
Given the breadth of their role, an expert witness should meet strict qualifications presented by the hiring party. However, the only requirement associated with expert witness testimony is highlighted in the Federal Rule of Evidence 702 where it states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
Though the parameters for a witness’s experience are slim according to the courtroom, it is strongly recommended that attorney’s create their own qualifications and criteria before undergoing a rigorous interview process.
Here are some of the qualifications that an experienced witness should present:
- Expertise in a relevant field acquired through training, education, or professional experience
- Hold advanced degrees or certifications in their field
- Positive reputation enhanced through research, media or other recognition
- Familiarity with the legal process
- Ability to provide impartial and unbiased opinion
- Strong communications skills and can easily break down complex concepts
- Adherence to ethical standards
Selecting the Right Expert Witness
Interview Process
Beyond their experience, it is also recommended that the attorney vet the witness on a more personal level. The American Bar Association summed up important factors that contribute to an expert’s effectiveness in court as the “three Ps: planning, preparation, and personality”.
An engaging vetting and interview process allows the attorney to not only verify background information, but get a better understanding of their demeanor as it would appear to a panel of jurors.
Ethical Standards and Conflicts of Interest
Part of due diligence should include a careful review of ethical standards and disclosure of conflicts of interest. Experts must disclose any potential conflicts of interest, including financial, personal, or professional relationships that may compromise their impartiality.
When agreeing to move forward with an expert, a carefully crafted comprehensive retainer agreement is necessary to both outline the scope of the work and keep matters confidential.
Prudent Investors
For litigious matters related to the financial components of trusts and estates, finding an expert witness experienced with the complexities of the UPIA is a must. Prudent Investors serves as a trusted expert witness for attorneys seeking assistance with UPIA compliance and forensic investment research.
As experts in the field, we have had the privilege of sharing our knowledge and insights inside and outside of the courtroom. We frequently present at conferences held by esteemed organizations like the Professional Fiduciary Association of California (PFAC), The American College of Trust and Estate Council (ACTEC), Probate Attorneys of San Diego (PASD), and the National Guardianship Association (NGA), and serve as instructors of the Management of the Investment Portfolio course at Cal State Fullerton.
For those seeking expert witness work related to UPIA compliance, we can assist with diversification analysis, risk tolerance assessment, cost/expense evaluation, and tax opportunities. Those seeking forensic investment research, we provide support through areas like portfolio construction evaluation, asset allocation assessment, income analysis, and portfolio risk diagnostics.
Hiring an expert witness during trust and estate litigation can be a game changer. If you are seeking a seasoned expert with a depth of knowledge on UPIA compliance and investment management, we invite you to connect with our team today.