Lawyers are often called upon to serve as authorities on evidentiary and ethics matters, and in most courts a lawyer’s testimony is necessary to establish whether another lawyer in a malpractice lawsuit met or did not meet the applicable standard of care.
Under both federal and state rules of evidence the question of whether to accept a witness as an expert and to allow her to offer an opinion is whether her knowledge of the subject matter is such that her opinion will most likely assist the trier of fact (a judge or jury).
An expert has been defined as “one who has superior knowledge of a subject and is, therefore, able to afford the finder of fact a special assistance, and his knowledge may be acquired by professional, scientific or technical training or by practical experience in some field of human activity, conferring on him an especial knowledge not shared by men in general1.”
Thus, an expert witness may properly be called upon to assist the finder of fact in understanding the facts and the evidence, even though the reference to the facts is couched in legal terms.
However, testifying witnesses may not usurp the judge’s or jury’s fact-finding role, and a lawyer witness may not “tell the court the law” or testify about the correct legal standard, Black v. Black2.
For example, in a 2013 case from the U.S. District Court for the District of Colorado, Bagher v. Auto-Owners Ins. Co.,3 the plaintiff was making a claim against his insurance company for about 60 oriental rugs damaged by water.
In its defense, the insurance company invoked a provision in the insurance policy that precluded coverage for damage or loss to property that is contraband, or that is involved in illegal transport or trade.
The insurance company designated a lawyer to be its expert witness, who was prepared to testify that the plaintiff’s purchase of the rugs violated federal and state statutes relating to the licensing or registration of money transmitters. The attorney witness would also testify that some of the rugs were purchased in violation of a federal law known as the Iranian Transactions Regulation because the purchase dates likely fell within the time periods when the regulation prohibited importation of rugs from Iran.
The judge agreed that the attorney’s testimony must be limited: “While expert witnesses may testify to the ultimate matter at issue…this refers to testimony on ultimate facts; testimony on ultimate questions of law, i.e., legal opinions and conclusions, is not favored.”
Accordingly, the judge prohibited the witness from testifying about what laws were allegedly violated: “Allowing [the witness] to testify to opinions of this type would usurp the court’s role as the sole source of the legal principles governing this case and would direct the jury as to how they should find with regard to these issues.”
The judge did note that the parties could ask him to take “judicial notice” of the relevant law as permitted by the Federal Rules of Evidence.
The opinion in this rug case relied on an older and much cited case from the federal Tenth Circuit Court of Appeals, Specht v. Jensen4. But Specht also said that a lawyer-witness may properly be called to aid the court in understanding facts and evidence even though reference to the facts is couched in legal terms: “An expert’s testimony is proper…if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function.”
Gindis v. Gindis5 somewhat contradicted Specht. There the defendant filed a motion to strike the attorney expert (a former probate judge) whose affidavit discussed various kinds of trusts. Defendant argued that the attorney, rather than testifying to his knowledge of the facts in the case, was instead defining the law that must be applied to the case and thus was usurping the function of the court. The plaintiff responded that the attorney’s testimony at trial would assist the jury’s determination of whether the facts in evidence supported the existence of a trust, or a gift, or a contract, which issues were themselves factual in nature. The trial judge said that doubts about the usefulness of expert testimony should generally be resolved in favor of admissibility and that, under these principles, he was not persuaded that the attorney’s testimony should be excluded. He also observed that under the rules of evidence, courts “allow an opinion by a legal expert in which the expert applies the principles of his expertise, the law, to the facts in evidence.”
So, Where is the Line Drawn?
Here are some examples of court opinions approving expert legal testimony:
- Colorado’s securities commissioner was allowed to give the jury a broad overview of securities law, including what qualified as a security and the meaning of “materiality.”6
- In a complex case involving disputed liability among partners that owned a financially-troubled bank, the court allowed the plaintiff’s expert witness – a lawyer – to testify because “the testimony could be of assistance in sorting out business transactions, directing the court to various documents, and analyzing the communications that had occurred among partners.” Noting that this was a non-jury trial, the appellate court found no abuse of discretion “considering the complex nature of the involved relationships and transactions and further considering that trial judges sitting as fact finders are presumed to ignore incompetent and inadmissible evidence.”7
- An expert in insurance claims practice with 22 years of insurance industry experience was allowed to opine that the insurance company had violated several provisions of Colorado’s Unfair Claims Settlement Practices Act and applicable industry standards:
- “Thus, while we agree with State Farm that an expert witness should not dictate the law that the jury should apply, an expert witness is permitted, in the trial court’s discretion, to refer to the facts of the case in legal terms. Here, because the expert’s testimony discussed the facts, his mention of legal standards and terms was admissible.”8
- A tax expert’s opinion on liability for withholding taxes was held admissible in Fiataruolo v. U.S.9 allowed expert testimony on the nuances of tax law.
- An expert witness was allowed to interpret the terms of a city charter in Phillips v. Calhoun10 because “the use of experts to assist the interpretation of documents in this fashion is generally accepted.”11
- A lawyer with extensive practice in savings and loan law qualified as an expert in a legal malpractice suit on whether a law firm properly handled a thrift application for a federal charter: “lawyers, like doctors, are in a position to become experts from having studied a particular field of law and discussing it with colleagues.”12
- An expert was allowed to testify that a defendant failed to meet OSHA standards in maintaining its factory: “The rule prohibiting legal opinions on domestic law does not always apply in situations where the legal issue is raised in such a manner that it becomes an operative fact to be proven within the case rather than a rule of decision for deciding the case.”13
- An expert on the Uniform Commercial Code was permitted to testify about common banking practices and whether a bank’s conduct warranted the status of a holder in due course.14
- An attorney who was an expert in securities law was allowed to testify that a statement in a prospectus was standard language for the issuance of a new security.15
- An appellate court reversed the trial court for refusing to let an expert on income tax law testify whether the failure to report funds received from the sale of blood plasma constituted income tax evasion.16
- A law professor specializing in federal income taxation could testify about the tax consequences of an oil drilling venture and about the meaning of the relevant Internal Revenue Code provisions.17
- In MCI Communications Corp. v. AT&T18, an expert was allowed to provide an interpretation of FCC regulations.
As can be seen, whether a court will allow testimony from an attorney expert is a carefully nuanced decision, and much depends on how the proposed testimony is framed and offered.
It is also apparent that certain subject matters more readily lend themselves to having an attorney as an expert witness, especially specialized areas that may be beyond the experience of most jurors and judges, such as securities law, tax law, insurance law, banking law, the Uniform Commercial Code, and administrative regulations19 (expert testimony may be particularly appropriate when specialized areas of law are at issue).
Other Considerations
- Who is the trier of fact? A jury or judge? An arbitrator? How knowledgeable is the trier of fact in the particular area of law at issue?
- Does the dispute require an attorney expert who has experience in the business or industry at issue, or is more academic experience required?
- Will the judge perceive the attorney expert as more biased than probative?
- Will the proffered expert testimony assist the trier of fact or merely offer legal conclusions?
- Does the lawyer witness also have other qualifications, such as an MBA, a CPA, an M.D., or a degree in economics?
Perhaps the last word should come once again from the Tenth Circuit: In Smith v. Ingersoll-Rand Co.20, the defendant relied on Specht v. Jensen in objecting to a forensic economist’s testimony about “hedonic damages,” that is, damages to compensate for the loss of enjoyment of life. The court, however, allowed the testimony:
“This rule is not, however, a per se bar on any expert testimony which happens to touch on the law; an expert may be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms. Expert testimony on legal issues crosses the line between the permissible and impermissible when it attempts to define the legal parameters within which the jury must exercise its fact-finding function . . . .We believe [the expert’s] testimony on hedonic damages no more defined the law of the case than did his testimony regarding the computation of other types of damages…such testimony is common and certainly does not define the law of the case.”
For more information on this topic, please contact Jack Berryhill.
1People v. Williams, 761 P.2d 258, 260 (Colo. App. 1988).
2422 P.3d 592, 610 (Colo. App. 2018)
32013 U.S. Dist. LEXIS 127527
4853 F.2D 805 (10th Cir. 1988)
5864 F. Supp. 159, 162 (D. Colo. 1994)
6People v. Lawrence, 2019 COA 84.
7Silverberg v. Colantuno, 991 P.2d 280, 291 (Colo. App. 1998).
8Peiffer v. State Farm Mut. Auto Ins.Co., 940 P.2d 967, 971 (Colo. App. 1996).
98 F.3d 930 (2d Cir. 1993), and U.S. v. Lankford, 955 F.2d 1545 (11th Cir. 1992)
10956 F.2d 949 (10th Cir. 1992)
11Phillips v. Calhoun, 956 F.2d 949 (10th Cir. 1992)
12Jeffer, Mangels & Butler v. Glickman, 234 Cal. App. 3d 1432 (1991)
13Hariri v. Morse Rubber Products Co., 405 N.W. 2d 546 (Iowa App. 1991)
14First National State Bank v. Reliance Electric Co., 668 F.2d 725, 730 (3d Cir. 1981)
15Huddleston v. Herman & MacLean, 640 F.2d 534, 552 (5th Cir. 1981), mod. on other grounds, 459 U.S. 375 (1983)
16U.S. v. Garber, 607 F.2d 92 (5th Cir. 1979)
17Sharp v. Coopers & Lybrand, 457 F. Supp. 879 (E.D. Pa. 1978), aff’d in part, 649 F. 2d 175 (3d Cir. 1981)
18369 F. Supp. 1004, 1026-27 (E.D. Pa. 1973), vacated and remanded on other grounds, 496 F.2d 214 (3d Cir. 1974)
19U.S. v. Cavin, 39 F.3d 1299 (5th Cir. 1994)
20214 F.3d 1235, 1246 (10th Cir. 2000)