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Identifying Expert Witnesses

By Bari Brandes Corbin

Anyone who has handled a custody or equitable distribution case knows that expert witness testimony may be necessary at trial with regard to the disputed custody or valuation issues. The Civil Practice Law and Rules require counsel to lay a preliminary foundation for the introduction of expert testimony at trial, if a proper demand is made. However, many attorneys never make such a demand, so their adversary is free to offer such testimony. Attorneys who serve a demand are often successful in precluding such testimony when their demand goes unanswered.

The Uniform Rules also require counsel to lay a preliminary foundation for the introduction of expert testimony well in advance of trial. However, as a general rule, many judges do not insist upon compliance with these rules, and many attorneys ignore them. It is important to know these rules in order to assure that you will be permitted to present expert testimony at trial, and to prevent its introduction into evidence by your adversary. Trial counsel should be familiar with the importance of serving a Notice to Identify Experts (herein, “Notice”) — used to obtain identifying information on the experts the opposing party intends to call at trial – on an adversary well in advance of the trial.

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