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Experts cannot testify about the law - or can they? Under both Illinois and federal law, an expert may not opine about how the law applies to the case at bar or whether a party's actions were legal. But this seemingly simple principle can be hard to put into practice. Here's a look at how courts have applied the rule.

In a trial there is only one legal expert--the judge. (1)

The results in contemporary litigation often turn on how cogent and persuasive one's expert testimony is. More starkly, the results may turn on whether the expert's testimony is even admitted into evidence. Despite the great variety of subjects that experts may testify to, almost all courts agree on one thing that they cannot testify to: the law of any American state or of the United States. (2)

More specifically, the expert witness may not interpret statutes, regulations, or case law and may not offer legal opinions or conclusions. Such opinions are said to invade the province of the judge or the jury. (3)

However, this simple generalization does not do justice to the complexity of the issues surrounding expert testimony. This article looks at how the principle has been applied to several categories of cases and then draws conclusions about that body of case law, focusing particularly on cases that have been liberal in allowing experts to testify about the law.

Interpretation of statutes, administrative regulations, and case law

Magee. The heart of the traditional bar to legal opinion is the exclusion of testimony that interprets statutes, regulations, or case law, or that gives the results of applying any of those forms of law to the case at bar. A frequently cited case for the inadmissibility of such testimony is Magee v Huppin-Fleck, (4) which held that the trial court had improperly admitted expert testimony on the interpretation of the Oregon Business Corporation Act.

Clemons. Magee was cited as followed in Clemons v Mechanical Devices, Co, (5) in which the plaintiff alleged that he had been discharged in retaliation for filing a workers' compensation claim. The defendant's office manager, called as a witness by the plaintiff, read from the Wage Payment and Collection Act and opined that the defendant had violated it. The appellate court held that this evidence should have been excluded as irrelevant and as impermissible statutory interpretation. (6)

Bloomington. In Town of City of Bloomington v Bloomington Township, the appellate court affirmed the exclusion of "expert testimony on legislative intent" offered by an individual who had participated in drafting the statute at issue. (7)

Seventh circuit. The seventh circuit likewise excludes expert testimony on the law. Leading cases are Bammerlin v Navistar Intl Trans Corp, (8) where the court held it was error to admit expert testimony on the meaning of federal regulations concerning seat belts, and Good Shepherd Manor Foundation, Inc v City of Momence, (9) which found it was proper to exclude expert testimony that the defendant violated the Fair Housing Amendments Act and that its actions "had no legal basis."

[ILLUSTRATION OMITTED]

USX Corp. However, expert testimony on the proper interpretation and application of the merger provisions of the Illinois Business Corporation Act was central to the court's decision in USX Corp v White. (10) The plaintiff corporation claimed that a merger had occurred and the Secretary of State claimed that it had not. Both sides presented expert opinions with numerous citations to Illinois and Delaware statutes and (occasionally) federal securities law.

The court found one of plaintiff's experts to be unreliable because he did not cite case law, precedents, facts, data, or learned opinions (i.e., other experts)11 and criticized another because his opinions did not "comport with general principles of statutory construction." (12)

However, neither expert was criticized for offering statutory interpretation. The defendant secretary of state had offered contrary expert testimony on the same points, (13) so it may be that neither side objected to the other side's testimony on the grounds that it was improper legal opinion.

Price. Statutory and regulatory interpretation was also central to Price v Philip Morris, Inc, (14) where a class of smokers was awarded monetary damages for the defendant's advertising and sale of "light" and "lowered tar and nicotine" cigarettes. The defendant's actions allegedly violated two Illinois statutes, namely the Consumer Fraud and Deceptive Business Practices Act and the Uniform Deceptive Practices Act. Both acts contain exemptions for practices otherwise allowed by law. The question on appeal was whether various consent orders issued by the Federal Trade Commission (FTC) constituted such exemptions.

The Illinois Supreme Court held that they did, and in so ruling it extensively reviewed the expert testimony of a former FTC employee and expert in regulatory economics, called by the defendant. (15) The expert's opinion summarized the history of FTC regulation of tobacco advertising and concluded that certain consent orders were "official acts" of the FTC intended to provide guidance to the tobacco industry.

The expert further concluded that the FTC's consent orders permitted the use of such terms as "light" in cigarette advertising and that the defendant's advertising complied with the FTC's requirements. Apparently the proponent of the testimony did not elicit any opinion as to whether the FTC's consent orders constituted exemptions under the Illinois statutes, although the opposing party did ask whether the consent orders and the Illinois statutes were in conflict.

Some of the testimony was admitted over objection. (16) One of the dissents also discussed the expert's opinion in detail. (17) The opinion of the court concluded that consent orders and other informal actions of the FTC constituted grounds for exemption under the Consumer Fraud Act and the Uniform Deceptive Practices Act. It extensively reviewed the published record of the FTC's regulatory activity, and while it did not refer to the defendant's expert's testimony, it seems likely that the publications it discussed were largely the ones that defendant's expert had also discussed. (18)

Vancura. A very recent suit, Vancura v Katris, (19) was brought by a real estate investor against several defendants, including Kinko's Inc., whose employee had notarized a forged version of his signature. Kinko's liability turned on the Illinois Notary Public Act. (20)

Following a bench trial, the trial court entered judgment for the plaintiff on both counts: violation of the Notary Public Act and common law negligence for improper training and supervision of its employee. The majority on the appellate court reversed the finding on the statutory count (since there was no evidence of the employer's consent to its employee's corrupt act), but affirmed liability on the common law count. (21)

In its ruling on both counts, the appellate court, like the trial court, relied heavily on the opinion testimony of Michael L. Closen, an expert on notary law. Closen's opinion relied on the Illinois Notary Public Act, the Illinois Notary Public Handbook (published by the Secretary of State), and the Model Notary Act, as well as his personal familiarity with the profession.

Closen opined that Kinko's had failed to properly train and supervise its employee. (22) The court noted that Kinko's had objected at trial to this testimony, on the grounds that it constituted inadmissible statutory interpretation, but had inexplicably abandoned this objection on appeal. (23) Regardless of the abandonment, it is apparent that the majority found Closen's opinions relevant and persuasive arguments that Illinois law followed a particular standard for affiant identification and that Kinko's had violated that standard.

In dissent, Judge O'Malley argued that the judgments on both counts should be reversed. Like the majority, the dissent repeated the black letter rule that an expert may not opine on the law, but then concluded that Closen's testimony was irrelevant and inadmissible as to both counts. Like the majority, the dissent weighed Closen's testimony but, unlike the majority, found it lacking in persuasiveness. (24)

Interpretation of contract terms

Courts usually reject attempts to offer expert opinion interpreting the terms of a contract. Those terms are presumed to have their ordinary meanings, and expert testimony is not relevant on the issue of meanings. See Village of Glenview v Northfield Woods Water & Utility Co (25) (meaning of "extension" in agreement concerning water main system) and William J. Templeman Co v Liberty Mut Ins Co (26) (meaning of "malicious prosecution" in insurance policy).

However, if the contractual term at issue is ambiguous, expert testimony may be admitted to clarify it, though that testimony cannot consist of interpretations of statutes or case law. (27) Moreover, if the terms of a contract are so specialized that an average person would not understand them, an expert may testify as to what they would mean to a professional in that field and what sort of agreement they created, i.e., the obligations that they established.

American College of Surgeons. Thus, in American College of Surgeons v Lumbermans Mut Cas Co, (28) an expert was properly allowed to explain the "language, formulas, charts, and similar technical insurance industry terminology" in what the court characterized as a "very esoteric field." (29) Although the court implied that it found the documents ambiguous, the more plausible basis for its holding was that the field was so specialized that expert assistance to the fact finder was necessary. The court rejected the opponent's assertion that the testimony invaded the province of the judge and jury.

Musburger. In Todd W. Musburger, Ltd v Garry Meier, (30) the plaintiff was an attorney who had represented the defendant-radio personality in contract negotiations. After being discharged, the plaintiff sued for quantum meruit damages.

The appellate court ruled that the trial court had properly excluded the testimony of the defendant's expert on the grounds that it contained legal opinions as to liability. Specifically, Maksym [the defendant's expert] was barred from testifying that plaintiff was not entitled to maintain a claim for quantum meruit because such a claim was at odds with the parties understanding of their agreement, that plaintiff breached fiduciary duties it owed to defendant, and that plaintiff was barred from receiving payment for its 2002 and 2003 services due to its failure to be licensed as a private employment agency pursuant to the Act [Private Employment Agency Act]. (31)

Industry practice and custom

Competent expert testimony about industry practice and custom is usually admitted, with the proviso that it may not constitute statutory interpretation or contain legal conclusions. Under the proper circumstances, it can be used to explain the terms of a contract. Thus, Clark v General Foods Corp (32) allowed testimony about customary fees among employment agencies and Barliant v Follett Corp (33) allowed explanation of the term "F.O.B." in a contract for the sale of books, including what charges are customarily accepted as part of "F.O.B."

One of the most liberal allowances of such testimony was in Westin Industries, Inc v Newcor Canada Ltd, (34) in which the plaintiff buyer of welding machines had recovered consequential damages at trial. The trial court excluded the testimony of the defendants' three expert witnesses that providing the buyer with consequential damages was not the custom of the "specialty welding machine trade." The seventh circuit held that the exclusion was error, on the grounds that the three proposed experts were experienced executives in the field who could testify as to industry custom and practice. (35)

Western Industries was cited and followed in Rush Presbyterian St. Luke's Med Cen v Safeco Ins Co of America, (36) a construction contract dispute. The court allowed expert opinion on the effects of a change in the sequence of the work and delays in awarding contracts. It allowed the opinion that these events were not the responsibility of the plaintiff but rather of the owner, the architect, and others. (37) In ruling that the testimony would be admitted, the court wrote that "it is permissible for experts to testify about the customs and usages in an industry, and to amplify the terms of a contract if customs and usages shed light on the meaning of those terms." (38)

However, testimony on customs and usages may not consist of statutory interpretation. (39)

Standard of care

An expert may testify about the standard of care of a profession, occupation, or industry if he is familiar with it and may opine about whether a party violated that standard. Thus, it was proper to allow the plaintiff to present evidence on the standard of care for certified public accountants and to testify that the defendant had violated that standard. (40) It was also proper to admit evidence as to the reasonableness or unreasonableness of the defendant's policies for paying bills or settling claims. (41)

In federal civil rights suits, the seventh circuit allows testimony about the proper standards of conduct for prison officials and police officers. (42)

Consistent with the general bar to statutory interpretation, an expert may not give an opinion on the standard of care if it amounts to a legal opinion or conclusion. Thus, the seventh circuit held it was proper to exclude testimony as to whether the defendant's sales practices were "deceptive or misleading," since that testimony amounted to a legal opinion or conclusion. (43)

What do the cases mean?

Of the cases described above, Vancura, USX Corporation, and Price are, on their face, considerably more liberal than most decisions in admitting testimony that comes close to interpreting statutes and administrative regulations.

In Vancura, the opposing party had not pursued its evidentiary objections on appeal. In USX Corporation and Price, the opinions do not make clear how much objection was offered to the expert opinions either at the trial court level or on appeal.

In USX Corporation and Price, statutory and regulatory interpretations were the central issues, and each side presented lengthy and detailed evidence about them. It was the job of the expert to organize the statutes and regulations into a coherent form, arranged chronologically and topically. It seems likely that the reviewing and trial courts appreciated the organizational work of the experts and gave them some leeway in their opinions, out of necessity.

So what do these cases tell us when read with the other recent cases? The foundational principle remains that expert testimony on what the law is will generally not be allowed. If, however, the case turns on the details of a complicated statutory or regulatory scheme, an expert on that scheme can present a summary of statutes and regulations and select the elements most relevant to the case. But he or she cannot express an expert opinion on whether a party to the litigation has or has not conformed to the requirements of the statutory or regulatory scheme.

The decision in Vancura is more difficult to reconcile. It looks very much like a suit for professional malpractice, for which expert testimony has long been deemed useful and sometimes essential. However, the plaintiff's expert testimony came close to asserting that the defendant had violated a statutory and regulatory scheme and therefore was guilty of professional negligence.

That conclusion appeared to be an essential part of the expert's testimony and the majority opinion appeared to rely on it. Nonetheless, the court affirmed liability only for common law failure to train and supervise, not for the statutory violation.

Even on this interpretation, however, this opinion is an outlier, and very much on the side of liberal admission of evidence. Judge O'Malley's dissent forms a useful complement to the majority opinion, and any use of this case as a precedent should consider the arguments of both opinions.

(1.) Pivot Point Intl, Inc v Charlene Products, Inc, 932 F Supp 220, 225 (ND Ill 1996). FRE 703, governing expert opinion testimony, has been adopted by the Illinois Courts. Ryan v E. A. I. Const Corp, 158 Ill App 3d 449, 461, 511 NE2d 1244, 1252 (1st D 1987).

(2.) Benjamin J. Vernia, JD, Admissibility of Expert Testimony Regarding Questions of Domestic Law, 66 ALR 5th 135. However, an expert may opine as to the law of a foreign country. Atwood Vacuum Machine Co v Continental Cas Co of Chicago, 107 Ill App 2d 248, 246 NE2d 882 (1st D 1969). Overseas Development Disc Corp v Sangamo Construction Co, 840 F2d 1319, 1324 (7th Cir 1988).

(3.) Todd W. Musburger, Ltd v Gary Meier, Nos 1-07-3080 and 1-080814 (Cons), 914 NE2d 1195, 1214 (1st D 2009).

(4.) 279 Ill App 3d 81, 664 NE2d 246 (1st D 1996).

(5.) 292 Ill App 3d 242, 684 NE2d 1344 (4th D 1997).

(6.) Id at 251, 684 NE2d at 1350.

(7.) 233 Ill App 3d 724, 735, 599 NE2d 62, 69 (4th D 1992).

(8.) 30 F3d 898, 890 (7th Cir 1994).

(9.) 323 F3d 557, 564 (7th Cir 2003).

(10.) 352 Ill App 3d 709, 817 NE2d 896 (1st D 2004).

(11.) Id at 727, 817 NE2d at 910.

(12.) Id at 728, 817 NE2d at 910.

(13.) Id at 718, 728, 817 NE2d at 903, 911.

(14.) 219 Ill 2d 182, 848 NE2d 1 (2005).

(15.) Id at 219, 848 NE2d at 24.

(16.) Id at 224, 848 NE2d at 27.

(17.) Id at 289, 848 NE2d at 62 (Freeman dissenting).

(18.) Id at 253, 848 NE2d at 43.

(19.) 391 Ill App 3d 350, 907 NE2d 814 (1st D 2009).

(20.) 5 ILCS 312/1-101 et seq.

(21.) Vancura, 391 Ill App 3d at 381, 907 NE2d at 838. Compare Bank of America, NA v Bird, 392 Ill App 3d 621, 627, 911 NE2d 1239, 1244 (5th D 2009), which also found that the employer of a notary has a common law duty apart from the Notary Act.

(22.) Vancura, 391 Ill App 3d at 359, 907 NE2d at 821.

(23.) Id at 361, 907 NE2d at 823, n 4.

(24.) Id at 382, 907 NE2d at 839.

(25.) 216 Ill App 3d 40, 49, 576 NE2d 238, 245 (1st D 1991).

(26.) 316 Ill App 3d 379, 390, 735 NE2d 669, 679 (1st D 2000). Compare T.H.E. Ins Co v Chicago Fireworks Mfg Co, 311 Ill App 3d 73, 76, 724 NE2d 188, 191 (1st D 1999) (error to admit expert testimony on an unambiguous contractual term). A similar holding occurs in Coyne v Robert H. Anderson and Assoc, 215 Ill App 3d 104, 111, 574 NE2d 863, 867 (2d D 1991).

(27.) Harbor Ins Co v Continental Bank Corp, 922 F2d 357, 365 (7th Cir 1991) (an experienced lawyer could testify as to the probable meaning of "indemnity" in a bank charter, but could not recite the results of his research on case law). Compare LID Associates v Dolan, 324 Ill App 3d 1047, 1059, 756 NE2d 866, 877 (1st D 2001) (expert opinion based on interpretation of case law was properly excluded) and Sohaey v Van Cura, 240 Ill App 3d 266, 282, 607 NE2d 253, 266 (2d D 1993) (citing Harbor Ins).

(28.) 142 Ill App 3d 680, 491 NE2d 1179 (1st D 1986).

(29.) Id at 701, 702, 491 NE2d at 1194, 1194.

(30.) Nos 1-07-3080 and 1-08-0814 (Cons), 914 NE2d 1195 (1st D 2009).

(31.) Id at 1214.

(32.) 81 Ill App 3d 74, 79, 400 NE2d 1027, 1031 (3d D 1980).

(33.) 138 Ill App 3d 756, 762, 483 NE2d 1312, 1316 (1st D 1985). Custom and practice testimony was also allowed in Hernandez v Paschen Contractors, Inc, 335 Ill App 3d 936, 943, 781 NE2d 1083, 1089 (1st D 2002).

(34.) 739 F2d 1198 (7th Cir 1984).

(35.) Id at 1203.

(36.) 722 F Supp 485 (ND Ill 1989).

(37.) Id at 496.

(38.) Id at 497.

(39.) Harbor Ins, 922 F2d at 365.

(40.) Jerry Clark Equipment, Inc v Hibbits, 245 Ill App 3d 230, 612 NE2d 858 (5th D 1993).

(41.) Illinois Health Care Assn v Wright, 268 Ill App 3d 988, 645 NE2d 1370 (1st D 1994); National Surety Corp v Fast Motor Service, Inc, 213 Ill App 3d 500, 572 NE2d 1083 (1st D 1991).

(42.) Haley v Gross (proper response to problems between cell mates), 86 F3d 630, 644 (7th Cir 1996); Kladis v Brezck, 823 F2d 1014, 1019 (7th Cir 1987) (proper use of force).

(43.) Federal Trade Commission v Amy Travel Service, Inc, 875 F2d 564, 573 (7th Cir 1989).

James Springer is a shareholder in the Peoria firm of Kavanagh, Scully, Sudow, White & Frederick, PC.
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Publication:Illinois Bar Journal
Date:Feb 1, 2010
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