On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, July 3, 2013.
Divorce law in Florida is becoming so complicated, that the use of expert witnesses – like accountants, vocational experts, and psychologists – are becoming very common to determine values, need and ability and parenting issues.
The Florida rule for experts is Rule 702 of the evidence code, and it was just amended. In fact, it is so new that it just became effective on July 1st. There are some interesting things about the new rule.
1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rule making authority is the court’s job.
2. The way the the Rule came into being by the Legislature could create a constitutional challenge to the rule down the road.
3. The new rule forces Florida courts to abandon the Frye test for admitting expert testimony, a test we’ve used for around 70 years.
4. The new rule requires Floirda courts to apply the standard developed by the U.S. Supreme Court in Daubert; something the Florida Supreme Court has said it doesn’t want to do.
5. The Frye test was a very lenient test, especially as applied here in Florida. In Florida, Frye allowed in all expert testimony – even some “junk science” opinions – as long as they were generally accepted standards.
6. The new (for Florida) Daubert rules, require judges to act as gatekeepers, and focus on an experts qualifications, the relevance of the testimony and the reliability of the testimony using a multi-factor test.
7. The rule change will require state judges to become familiar with the new evidentiary test, and even brush up on the scientific method.
8. For family lawyers, the Daubert test offers an opportunity to challenge the qualifications, relevancy and reliability of experts which we never had before.
9. The change will also force expert witnesses to stay on top of their professional literature, and be able to defend their choice of methods, tests or evaluation techniques.
The Florida Legislature seems to be on a mission to re-write family law, trying to pass alimony reform, change equitable distribution, and modify Rules 702 and 704. Big changes have occurred, and clients need to discuss with their family attorneys about any new issues and strategies to consider.