The Role of Experts in Trust and Estate Litigation

Gregory W. MacKenzie
Stewart A. Marshall
J. Clay Singleton
Mark E. Swirbalus

The full trial technique will be available to read soon in the forthcoming 43:1 issue of the American Journal of Trial Advocacy.


            Two types of expert witnesses are often involved in trust and estate litigation: attorneys and subject matter experts.  The first Section of this Article explores the challenges of using attorneys as experts, and the second discusses the difference between consulting and testifying experts.  The final Section contains a practical guide to vetting subject matter experts where the controversy involves fiduciary financial liability.

            The question of whether to employ an attorney to serve as an expert witness arises frequently in trust and estate litigation.  To explain complicated estate planning concepts, specialized terms, tax consequences, and standards for fiduciary conduct and to offer opinions in document construction and fee disputes are just a few of the subject areas that raise the question of whether to hire a legal expert witness. Although the question often arises, is it always appropriate to proffer the testimony of a legal expert?  This Section provides a general framework for answering this question.

            How can attorneys use experts to help identify potential fiduciary investment liability associated with mistakes fiduciaries commonly make?  Typically, a financial expert’s opinion regarding breaches of fiduciary duty is not enough.  The expert’s testimony needs to be supported with knowledge of the law and, when damages are an issue, with proper quantitative analysis.  A qualified expert’s investment data analysis and hypothetical investment scenarios coupled with credible investment experience can be important to making or defending a case of fiduciary liability. 

            When considering the admissibility of legal expert testimony, the first question to consider is whether you are engaging your expert as a consulting expert or testifying expert. The major difference between a consulting expert and a testifying expert is that your retention of a consulting expert is usually not disclosed to opposing counsel. This is because your work and communications with the consulting expert are usually protected by the attorney-client privilege and the work-product doctrine. The consulting expert’s role is to assist you in understanding the particular subject matter and to help you assess the strengths and weaknesses of your case.

            Attorneys testifying as experts should be helpful to the triers of fact and not usurp their role as determiners of the applicable law.  Just as a witness may not testify as to a defendant’s guilt or innocence, attorneys are generally barred from testifying on the ultimate issues of fiduciary liability but can testify on issues of the standard of care.  If an attorney explains industry standards, uses sound reasoning and does not opine on the law, then her testimony is likely to be permitted.

            Once you have determined to hire an expert, you must then be careful about how you communicate with the expert to protect the confidentiality of those communications in the discovery process, and you should consider how to use your expert to your case’s best advantage.