Expert Witnesses in Family Law Litigation by Gilbert Feibleman About 25 years ago, Kathryn Johnson came into my office with a very sad story. She was a postal worker who married to a brilliant husband who was also very controlling, and now he wanted a divorce. She wanted to leave the marriage with her house and her pension, but those were the only real assets they had. The estimated present value of those assets was approximately $500,000. I explained that in a long-term marriage the assets were divided equally, and for her to be able to keep her house and her pension we would need to be able to give him something of equal value. I asked if they had anything else and she said, “well, the only thing we have are his postcards.” Upon further inquiry, I learned her husband, Jack Johnson, collected turn of the century postcards insured for over $500,000. The objective was simple but the methodology to achieve that objective was not. In many domestic relations cases, establishing the value of an asset is a highly contested issue requiring expert testimony. In a divorce, there will often be the need for expert testimony on child custody, pension valuation, real property valuation, and of course, personal property valuation. But how could we find an expert on something as unique as turn of the century postcards? In our case we quickly discovered that none of the usual personal property appraisers in the state, or even the west coast, had experience with such assets but we were directed to a book on that very subject. The problem was that the Jack Johnson was the main author of the book and had written 7 of the 10 chapters. As best as we could tell, my client’s husband was the expert in such valuations and any other person who might be a credible witness was either his friend or colleague. As in every case, a strategic decision must be made as to how to establish both an admissible and a credible valuation for the trial court. In this case, with this very unique asset, we opted to go to court without any expert at all, instead making Johnson into our expert, impeaching him by utilizing his prior insurance declarations and simple math. First, we needed to analyze his prior insurance itemization and establish a formula discount rate to value his remaining collection by comparing his personal insurance valuations with actual sales (i.e., show that the average sale was for 85% of the insured value). Second, we needed to obtain the names and contact information of Johnson’s customers. But how do we get the sale records of cards on the prior insurance inventory schedule? The sales of cards that were not on the schedule would provide no useful data. The plan was to finesse Johnson into revealing his national customer list without him suspecting why. To achieve this result, we planned for and took multiple depositions of Johnson, each of which had non-repetitive questions, to make him think we were looking at one thing when in fact we were looking at another. This was critical because, in his first deposition, he made it very clear that he knew he was smarter than me and he wanted me to know that by explaining his prior experience in the Office of Strategic Services (OSS), the predecessor of the CIA. I did all I could to let him believe he was smarter and the multiple depositions led him to think we did not know why we were even deposing him. Over the course of the three depositions, the questions were designed to suggest we did not understand anything about buying and selling collectibles, we thought he was hiding something, and he was cheating on his taxes by not declaring all of his income. In the process of educating me that he had nothing to hide, he declared all his taxable income, and buying and selling was not complex, he ultimately disclosed the names and addresses of most of his major past and current customers. Third, we needed to obtain as much sales data as we could of the cards sold. I then issued subpoenas all over the country. I did not have the resources or time to craft, file, and serve multiple interstate depositions, all of which would have required notice to Johnson and given him the opportunity to undermine the GILBERT FEIBLEMAN, after 45 years of civil litigation, limits his practice to being a reference judge, meditator and expert witness primarily in matters relating to family law and legal ethics. Feibleman is the founder of First Call Consulting, c/o 1815 Commercial St. SE, Salem, OR 97302. He can also be reached at gil@fcconsulting503.com and 503-910-6776. See Expert Witnesses p. 26 25 Trial Lawyer | Summer 2024
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