Limiting the testimony of legal experts.

Expert witnesses who testify about the law of a case may do more harm than good.

An increasingly familiar commercial litigation tactic is to offer expert witness testimony from lawyers or other professionals who claim to possess knowledge of legal standards. The expert may say that his or her experience with and study of fiduciary or contractual obligations imposed by law, understanding of legal terms of art such as "probable cause," and knowledge of obligations under federal laws such as the Employee Retirement Income Security Act qualify him or her to testify.

This type of testimony from an opponent can be devastating. It may command heightened deference from the jury. At a minimum, it is likely to confuse jurors about the judge's role in instructing them on the law. As the U.S. Supreme Court said in Daubert v. Merrell Dow Pharmaceuticals, Inc., "expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it."(1)

Moreover, as a practical matter, this testimony can exponentially increase the expense of litigation by forcing you to seek expert advice to prepare for deposing and cross-examining the legal expert at trial. Faced with an expert who will testify about the law of a case and the application of the facts of the case to the law, you may find it necessary to retain a legal expert to counter the imperious testimony.

With appropriate motions, however, you may be able to exclude the proposed expert's testimony from trial. If you succeed in excluding it, you not only save the considerable expense of retaining an opposing legal expert to aid in your preparation for trial and to testify at trial, you will also avoid the possibility of the witness confusing or misleading the jury.

A successful motion to exclude an expert can be a powerful tool in preparing for trial and should not weaken your case on appeal. The court's decision on a motion to exclude an expert will be reviewed by the extremely deferential abuse of discretion standard, which states that such a decision will be overturned on appeal only on a showing that the trial court abused its discretion in its ruling.(2) The cases that are cited in this article should serve as a springboard for your own research on this important issue.

Assisting the jury

Rule 702 of the Federal Rules of Evidence permits expert witnesses to offer opinion testimony when the proposed testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue."

Many states have the same or similar rules. For instance, Mississippi, Pennsylvania, and Texas have identical rules. Some states have more stringent requirements for the admissibility of expert opinions. Tennessee, for example, requires proposed expert testimony to meet the heightened burden of "substantially" assisting the trier of fact.

Courts applying Rule 702 have unanimously refused to permit expert witnesses to provide juries with their legal conclusions. Federal courts have recognized the simple truth that statements of legal conclusions cannot assist a trier of fact as is required by the rule. Moreover, purported expert testimony regarding legal conclusions improperly encroaches on the duty of the trial court to instruct the jury on the law.

As the Tenth Circuit explained in Specht v. Jensen, "it is axiomatic that the judge is the sole arbiter of the law and its applicability."(3) In Specht, the court recognized that testimony articulating and applying the relevant law "circumvents the jury's decision-making function by telling it how to decide the case."(4) Considering the problems associated with legal experts testifying at trial, the Tenth Circuit concluded, "In no instance can a witness be permitted to define the law of the case."(5)

Not only would testimony from an "expert" about the law applicable to the case usurp the role of the trial court, it also could work an improper and substantial prejudice. A jury faced with an attorney-witness who has impressive qualifications that are outlined in detail and who is granted the impressive title of "expert" may determine that the witness is more knowledgeable about the law than the judge. A misled jury might abandon efforts to decide the case and, instead, adopt the expert's conclusions.

In addition, the use of lawyers and other purported legal expert witnesses may ultimately harm the judicial system. As the Tenth Circuit explained in Specht, if one litigant may call an expert to define and apply the law, it is reasonable to suspect that the opponent will do the same. Conflicting testimony about the applicable law would serve only to confuse the jury, a confusion that is compounded when the judge instructs the jury on the law before deliberations begin.(6)

The judicial system and lawyers, in particular, are already under such attack and are the subject of such strong suspicion and mistrust that the use of battling lawyers as experts on the law of a case should not be permitted.

Dueling experts

The fear that one lawyer expert will only lead to an opposing legal expert has proven to be well founded. Opposing counsel in complex litigation rarely leave an attorney expert witness's opinions uncountered. Dueling legal experts do little to comfort jurors, many of whom are already jaded about the legal system.

In fact, more than 20 years ago, the Second Circuit warned that "with the growth of intricate securities litigation over the past 40 years, we must be especially careful not to allow trials before juries to become battles of paid advocates posing as experts on the respective sides concerning matters of domestic law."(7)

It is true that in some complex cases, like securities fraud and shareholder derivative actions, expert testimony may help a jury understand unfamiliar concepts. Courts have cautioned, however, that the use of legal experts "must be carefully circumscribed to assure that the expert does not usurp the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it."(8)

In United States v. Bilzerian, for instance, the proposed expert witness was not permitted to "give his opinion as to what the law requires."(9) The jury was specifically instructed that only the judge could present the requirements of the law to the jury for consideration.

Similarly, in Aguilar v. International Longshoremen's Union Local #10, the Ninth Circuit refused to permit expert testimony about the reasonableness and foreseeability of workers relying on representations made in application materials.(10) The proposed expert witness claimed expertise in "employment application interpretation."(11) The expert submitted a declaration to the court stating that, in his opinion, "almost anyone reading these [application] instructions ... would conclude that a definite promise had been made," that is, that the reliance of the casual workers in "enter[ing] or stay[ing] in part-time longshore work ... is reasonable" and that the defendant's labor relations committee should have foreseen this reliance.(12)

The application in question, however, specifically stated that the registration process for work as permanent longshore workers was subject to committee control. The Ninth Circuit found that, under the law, reliance on a promise--in this case, a promise regarding the process for selecting permanent longshore workers--that includes a reservation to change the promise is unreasonable. It held that the proposed testimony had been appropriately excluded because the definitions of reasonableness and foreseeability were matters of law and, therefore, solely for the court's determination.

Based upon these serious concerns, the Second Circuit found that a trial court had abused its discretion in permitting expert testimony in Marx & Co., Inc. v. Diner's Club, Inc.(13) In that case, the expert witness testified about what conduct was required by law under the terms of a contract. In doing so, he construed the contract and expressed his conclusions about the legal significance of various facts. He also testified that the defenses asserted by Diner's Club were unacceptable as a matter of law.

The witness's testimony included, for example, the impermissible legal conclusion that "'best efforts' in the context of a covenant to register shares [means] the assumption on the part of the person who gives the covenant [of] an absolute, unconditional responsibility to set to work promptly and diligently to do everything that would have to be done to make the registration statement effective."(14)

Also, inappropriately, the witness testified that "the best efforts obligation requires you to pursue the registration statement unless there is cause beyond your control."(15) The jury should have never been permitted to hear this testimony. The Second Circuit, in fact, found that the testimony actually gave the improper appearance that the court was shifting to this expert the responsibility of deciding the case.

The reasoning in Marx was adopted by the Fourth Circuit in Adalman v. Baker, Watts & Co.(16) The defendant proffered an expert to testify about the meaning and applicability of securities laws to the transaction at issue, giving his expert opinion on the governing law.

The Fourth Circuit firmly agreed with the refusal to permit this testimony. The court found that it "flies squarely in the face of the precedent and the logic of that precedent set out in Marx."(17)

As the court explained,

   Under our system it is the responsibility and the duty of the court to
   state to the jury the meaning and applicability of the appropriate law,
   leaving to the jury the task of determining the facts which may or may not
   bring the challenged conduct within the scope of the court's instruction as
   to the law.(18)

The court also expressed its fear that if expert opinions on the governing law of a case and application of facts to that law are introduced in complex cases, the testimony could also be introduced in tort cases and potentially all other cases encompassing the "gamut of litigation."(19)

Inadmissible conclusions

In Peterson v. City of Plymouth, the Eighth Circuit granted a new trial after finding that the trial court had abused its discretion by allowing an expert to testify about his opinions of the reasonableness of police conduct based on "Fourth Amendment standards."(20) The appeals court held that these opinions were legal conclusions that only the court should have made.

Likewise, in Estes v. Moore, the Eighth Circuit upheld refusal to permit "expert" testimony about whether an officer had probable cause for an arrest. It explained, "While the existence of probable cause is a mixed question of law and fact, the ultimate conclusion is a question of law. The proposed testimony was, therefore, not opinion testimony but rather it was a statement of a legal conclusion"(21)

The Sixth Circuit has joined in recognizing that expert witnesses may not offer legal conclusions. In Apponi v. Sunshine Biscuits, Inc., it upheld the refusal of the trial court to admit expert testimony that the plaintiffs had not exhausted available grievance and arbitration procedures as well as testimony about the legal obligations imposed on the parties by the pension plan at issue. The court concurred that witnesses must not be permitted to instruct the jury on the applicable principles of law and that this function must be left for the trial court.(22)

In Torres v. County of Oakland, the Sixth Circuit articulated an important method for determining whether proposed expert testimony invades the duties of the jury and judge. The court said that the test should be "whether the terms used by the witness have a separate, distinct, and specialized meaning in the law different from that present in the vernacular."(23)

The judges ruled that specialized legal testimony should be excluded. Thus, in Torres, the opinion of the legal expert witness was inadmissible because he was asked at trial whether, in his opinion, the plaintiff was discriminated against because of her nationality, directly tracking the language of Title VII.

Applying the same test, the Second Circuit found that proposed expert testimony constituted inadmissible legal conclusions, as evidenced by the fact that the opinion was couched in terms of "manipulation" and "fraud," terms lifted directly from the statute.(24)

These cases and other concurring authorities should be useful in attacking proposed expert testimony and in formulating your expert's disclosure and ultimate testimony. Obviously, if you hope to exclude an opposing expert who proposes to testify about legal conclusions, you will want to consider these authorities in deposing the witness.

With knowledge of the controlling principles that the court will ultimately consider, you can carefully plan your examination of the legal expert witness to elicit clear and concise statements of opinions that are couched in specialized legal terms of art or otherwise blatantly consist of legal opinions. You will need to strategically formulate questions to unmask the inappropriateness of the testimony. In the deposition, you should direct the opposing proposed legal expert toward testimony that mirrors these authorities as closely as possible.

It is important to note that these decisions rest on findings that proposed legal experts will not assist the trier of fact, as required by Rule 702, because the opinions do not address facts. The decisions also address the inherent prejudice of legal experts' testimony and its overall harm to the judicial system. None were based on findings that the proposed testimony was unreliable. Under certain circumstances, proposed legal experts may be vulnerable to an additional attack for lacking reliability, which is a separate question.

Daubert

Although the U.S. Supreme Court addressed the proper application of the constraints of Rule 702 of the Federal Rules of Civil Procedure to proposed scientific evidence, its holding in Daubert could prove helpful in such an attack on proposed legal expert testimony. In Daubert, the Supreme Court provided a framework for evaluating the reliability of proposed scientific expert testimony.

The Court explicitly held that the factors outlined in Daubert may be applied to determinations about the reliability of other proposed expert testimony in its more recent decision in Kumho Tire Co. v. Carmichael.(25) Importantly, the Court did not hold that all the Daubert considerations apply equally in evaluating all proposed expert testimony. It explained,

   The conclusion, in our view, is that we can neither rule out, nor rule in,
   for all cases and for all time the applicability of the factors mentioned
   in Daubert, nor can we now do so for subsets of cases categorized by
   category of expert or by kind of evidence. Too much depends upon the
   particular circumstances of the particular case at issue.(26)

Therefore, in preparing a motion to exclude a proposed legal expert, you may also want to look to the Daubert considerations, which weigh whether the legal theory or application underlying the proposed testimony can be and has been tested, whether it has been subjected to peer review and publication, whether it has a known or potential error rate, and whether it is generally accepted by the relevant scientific community. Admittedly, these factors will need modification to apply to the proposed legal expert you face, but Daubert challenges may provide another argument in favor of exclusion and should not be overlooked.

The research you conduct when a legal expert witness is first disclosed may save you and your client much time and expense at trial. If you can exclude expert testimony on the law and the application of the law to the facts, the trial itself can focus on the facts rather than on cross-examination and collateral attacks on such potentially powerful testimony. In addition, if you can successfully exclude the legal expert, you may not feel pressured to incur the expense of searching for a legal expert to offer testimony on your client's behalf.

Better yet, if you can exclude the proposed legal expert witness before deposition, you can save the significant costs of fully preparing for the expert's discovery deposition and, in particular, the costs of hiring an expert to prepare you.

Moreover, from a policy standpoint, abstaining from calling experts to describe the law of a case can assist us all in the effort to restore public confidence in the legal system. Jurors need not be, and should not be, subjected to battles during trial between competing adverse lawyer experts, nor should juror confidence in the judiciary as the source of the law be undermined by them.

Notes

(1.) 509 U.S. 579 (1993).

(2.) General Electric Co. v. Joiner, 522 U.S. 136 (1997).

(3.) 853 F.2d 805, 807 (10th Cir. 1988).

(4.) Id. at 808.

(5.) Id. at 810.

(6.) Id.

(7.) Marx & Co., Inc. v. Diner's Club, Inc., 550 F.2d 505, 511 (2d Cir. 1977).

(8.) United States v. Bilzerian, 926 F.2d 1285,1294 (2d Cir. 1991).

(9.) Id. at 1295.

(10.) 966 F.2d 443 (9th Cir. 1992).

(11.) Id. at 447.

(12.) Id.

(13.) Marx, 550 F.2d 505.

(14.) Id. at 509.

(15.) Id.

(16.) 807 F.2d 359 (4th Cir. 1986).

(17.) Id. at 368.

(18.) Id. at 366.

(19.) Id.

(20.) 60 F.3d 469, 475 (8th Cir. 1995).

(21.) 993 F.2d 161, 163 (8th Cir. 1993).

(22.) 809 F.2d 1210, 1218 (6th Cir. 1987).

(23.) 758 F.2d 147, 151 (6th Cir. 1985).

(24.) United States v. Scop, 846 F.2d 135, 140 (2d Cir. 1988).

(25.) 526 U.S. 137 (1999).

(26.) Id. at 150.

Kathryn E. Barnett practices law with Branham & Day in Nashville, Tennessee.