Attorney Expert WitnessesIntroduction:

The qualifications of witnesses designated as experts are often in question, and in federal court, the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE) address these requirements. See, e.g., Kelley v. Smitty’s Supply, Inc., Civil Action No. 17-4711§S(3), (E.D. La. 2019). When the expert is an attorney, there may be an added dimension to disputes regarding proposed testimony. Courts have attempted to determine whether a witness would speak to conclusions of law versus factual questions. See, e.g., id. This article discusses attorneys as expert witnesses in the Fifth Circuit, based on a survey of recent case law.

Discussion:

As a federal district court noted, “With respect to testimony by expert witnesses, Federal Rule of Civil Procedure 702 provides: ‘A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.’” Id.(quoting FRCP 702[1]).

Last month, a Louisiana judge was asked to consider whether an attorney could testify as an expert witness. See generally id.In that instance, the court determined that the proffered testimony consisted primarily of legal conclusions, rather than factual opinions. See id.The court explained that while “’Federal Rule of Evidence 704 provides that “[a]n opinion is not objectionable just because it embraces an ultimate issue,’ the Fifth Circuit has ‘repeatedly held that this rule does not allow an expert to render conclusions of law.’” Id., at 2 (quoting Samaratunga Family Tr. v. Am. Tower, Inc., 2018 WL 6592787 (W.D. Tx. Dec. 13, 2018)).

The judge reviewed the expert witness’s reports and proposed testimony and found that the information was predominantly focused on legal suppositions, such as interpreting contract and employment law. See id., at 2-3. In that instance, a motion in limine was brought to exclude the attorney’s testimony, and the court granted that request. See id., at 3.

In 2011, a Mississippi court interpreted the Federal Rules of Evidence and applied them to the plaintiffs’ motion in limine to exclude an attorney expert witness. See BNY Mellon v. Affordable Holdings, Inc.,2011 WL 2746301(N.D. Miss. 2011). The judge found that “[f]ederal courts have consistently held that legal opinions are not a proper subject of expert testimony because they do not assist the trier of fact in understanding the evidence, instead merely telling the trier of fact what result to reach.” Id.,at 2. (citing FRE 702).The witness was designated to speak about corporate law, and he conceded that “his opinion is presumed to deal only with the specific legal issues addressed in it.” Id., at 4. In the court’s view, the attorney’s testimony would not meet the requirements of FRE 702, and the report he provided was “nothing more than pure legal conclusions reached by interpreting a statute and applying that interpretation to the facts in the case.” Id., at 5.

A 2015 Texas case reiterated the Fifth Circuit’s ruling that “an expert may never render conclusions of law.” Aubrey v. Barlin, Case No. 1:10-CV-076-DAE, at 28 (W.D. Tx. 2015) (quoting Goodman v. Harris Cty., 571 F.3d 388, 399 (5th Cir. 2009). The judge expressed that while federal rules may sometimes allow witnesses to testify about “mixed questions of fact and law,” the rules do not permit opinions that apply the law to a factual scenario and/or provide a legal conclusion. See id., at 29.

Conclusion:

The Fifth Circuit has been clear about how it handles attorneys who wish to testify as experts. Although the practice is not prohibited, each of the aforementioned courts have emphasized that the proffered evidence should not include legal conclusions. As one court articulated, “Lawyer experts cannot opine as to what law governs an issue or what the applicable law means because such opinions impermissibly intrude upon the role of the court.” BNY Mellon v. Affordable Holdings, Inc.,supra, at 3-4. Some courts have noted that the expert reports they received began with statutory interpretations or were written like law review articles. See, e.g., id.For litigators contemplating using attorneys as expert witnesses, careful consideration should be given as to what a witness has to offer, and the testimony should not include opinions on legal matters.

[1]FRCP 702 and FRE 702 are identical, but some courts in this article reference one, while others cite the other. Their texts are the same.