By Fredrick P. Niemann, Esq. of Hanlon Niemann a Monmouth County New Jersey Will Contest Attorney
In a Will contest case where probate is being challenged, experts are often called upon to testify and give expert opinion(s). When considering whether to retain an expert, counsel should consider the various purposes for which an expert may be used. Some attorneys will retain experts as consultants at the beginning of a case to help evaluate the case, select theories of liability or defense, and suggest avenues of investigation and experts can provide value when retained early in the case. When deciding whether to retain an expert to provide testimony in a certain area, the attorney should weigh the potential benefit to be gained from an expert’s testimony and the potential cost to the case, which may involve considering factors such as the relative importance or unimportance of the issue that the expert would testify about. Generally, expert testimony is only admissible if it involves a subject beyond the experience of a layperson, if it will assist the trier of fact (trial Judge) in, understanding the evidence or in deciding a disputed factual issue, and if it is given by a witness who is qualified to testify on the subject by virtue of special knowledge, skill, education, or training.
The dividing line between acceptable expert testimony and objectionable legal opinion is not always clear, though it seems as though many trial courts will err on the side of allowing expert testimony, especially in a bench trial.
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