Expert Reports and Enhanced Earning Capacity: The Importance of Getting it Right
Expert testimony is required to determine the value of a party’s enhanced earning capacity based upon the acquisition of a professional license during the marriage. The quality of that expert’s work, including his methodology, assumptions, and allowance for different variables is absolutely critical to the Court in determining whether to accept or reject the testimony of that witness.
Sometimes, however, a retained expert’s work consists simply of plugging in some biographical information and income figures into a computer program and declaring the results to be his or her expert opinion. Little or no attention is paid to the unique facts and circumstances of the particular case. The Court’s reaction to such imprecise work can be devastating to the expert, the attorney, and the party who retained the expert.
In Somnnenfeld v. Sonnenfeld, Justice Robert A. Ross, the supervising justice of the Nassau County Supreme Court, reviewed and dicected the work of two expert evaluations of the enhanced earning capacities of the parties to a divorce action. The experts’ reports, which both attorneys stipulated to admitting into evidence at trial, were so bad in the eyes of the Court that it rejected them both and decided to appoint its own expert.
Sonnenfeld is an object lesson in the importance of retaining the right expert for equitable distribution purposes. It is also a reminder to attorneys that they are ultimately responsible (to the Court and their clients) for the quality and legal sufficiency of the expert’s report.
