• November 11, 2013
Photo by Alan Melancon

Photo by Alan Melancon

Questioning lawyer (“QL”) questioning “Witness” (Plaintiff Jone’s co-worker and eye witness to an accident):  What was Jones repairing when you came into the shop?

Opposing Counsel (“OC”): Objection, calls for expert testimony.

Court: Counsel, approach the bench…

QL: Your honor this entire case depends on whether Jones was inspecting a Widget Model 2007-D or a 2005-A and Witness will testify from eye witness observation that that it was a 2007-D.  This is classic lay testimony.

OC: Your honor, QL is seeking to elicit expert testimony.  The testimony he is seeking is well beyond the knowledge of a lay person. This requires highly specialized knowledge.  It’s obvious that it’s obscure.

QL: He is an eye witness testifying about what he saw.  This is clearly not expert opinion testimony.

OC:  Your Honor, his testimony is that, from 25 feet away, he could see the sanded chamfer inverse flange induction lip, the distinguishing feature in the Model 2007-D.  That is not perceptible by normal people from one foot away let alone 25 feet away.  That requires not only expert training. It requires superhuman skills.  And the witness was never disclosed as an expert. We got no expert report…

Court: I am going to let him testify to what he saw or what he believes he saw.  I think it is eye witness testimony. Your objection goes to the weight of the testimony, not its admissibility. Deal with it on cross-examination…


Later in the examination:

QL: What happened next?

Witness: I went about my business, heard a shriek, turned and saw Plaintiff’s grievous injury, which we saw a lot of with the 2007-D model Widget when installed and tested in the XYZ machine.

OC: OBJECTION!  Expert Testimony! He was not disclosed as an expert! He’s testifying to causation! He was not disclosed!

This conflict plays out every day in civil litigation everywhere.  And the reason it matters quite a lot is that there are different procedural rules, different disclosure rules, for “lay opinion testimony” and “expert opinion testimony.”

This issue gets particularly challenging is with “employees as experts.”  (See here or here, for example.)(Or see G.B. Mickum, IV, L.L. Hajek, Guise, Contrivance, or Artful Dodging: The Discovery Rules Governing Testifying Employee Experts, 24 Rev. Litig. 301 (2005).

Where this gets really difficult is in low dollar cases where a client (or a contingent fee lawyer) will be desperate to enjoy the savings of employee experts but the other side will squawk with alarm that this is an illegitimate “end-around” the special rules for the disclosure of expert testimony.

Courts have been inconsistent in setting out when expert reports are required of “employee experts.”  (Compare here and here.)

Bottom line: there is a great deal more indeterminacy and uncertainty in legal rules than almost any lay people know and probably a lot more than inexperienced lawyers know.  In any given case, an employee’s testimony might be deemed “expert testimony” or it might not.  The court might rule that the testimony is barred for failure to meet the court rules on disclosure of expert opinions or it might not.

The key might be in the answers to questions like: is this the kind of testimony that is normally the subject of expert testimony (an example would be medical causation)?  Is the background knowledge necessary to give this testimony normally part of a formal education or normally subject to professional licensing or not (say, jewelry making or manufacturing machine installation)?  If the answers to these questions are at the extremes, the ultimate answer of whether an expert report will be required or not seems clear.  If, on the other hand, the answers are “in the middle,” you, your client, and your adversary might have to live with uncertainty.

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