Surety Expert WitnessesA Johnson County, Kansas jury found that a developer breached an indemnity agreement with Surety Company. The indemnity agreement was required to obtain a performance bond from Surety to ensure the payment of excise tax to the City for the development of a subdivision.  

On appeal, Developer contended that the district court erred in allowing the City Attorney to give her opinion as to legal matters when she testified at trial. It was undisputed that the attorney wasn’t designated as an expert witness. Instead, she was called as a fact witness to testify on the City’s claim for an excise tax that ultimately led to the execution of the performance bond and general agreement of indemnity. Specifically, Developer argued that the City Attorney rendered legal conclusions and testified about her interpretation of various contractual agreements. 

The appellate court explained that the admissibility of evidence in the form of an opinion is controlled by Kansas Statute § 60-456. Subsection (a) of that section permits the admission of opinions by a fact witness if the district court finds they are rationally based on the perceptions of the witness and may be helpful to a clear understanding of their testimony.” As a result, the Court of Appeals held that pursuant to the code section, the opinions of a lay witness are admissible even though they may embrace ultimate issues.  

The Court noted that a lay witness may provide an opinion on an ultimate issue only insofar as the opinion will help the jury interpret technical facts or assist the jury in understanding the material in evidence. A witness may not pass on the weight or credibility of the evidence because those matters fall solely within the jury’s role.  

The City Attorney was asked whether there was any way for a developer to avoid excise taxes. Before she could respond, Developers attorney objected on the basis that it was “expert-witness-type [of] testimony”, and she hadn’t been endorsed as an expert. The district court overruled the objection. Later, defense counsel was provided the opportunity to provide a more thorough record of his objection to the City Attorney’s testimony and argued that had she been designated as an expert witness, he wouldve deposed her prior to trial.  

Developer’s attorney also argued that there was a danger the jury will give “undue influence to her testimony” because she was an attorney. Surety responded that the attorney’s testimony simply reflected the position taken by the City with respect to the payment of the excise taxes as well as its claim against the performance bond. 

The Court of Appeals found that in ruling that the attorney’s testimony was admissible, the district court recognized the difficulty when a professional is called as a fact witness. In particular, the district court noted that a professional cannot help but rely upon his experience and expertise when answering some of the most simple questions, so it becomes a dual role of both expert and fact witness. 

After finding that it had wide discretion regarding the admissibility of witness testimony, the district court determined: 

The witness so far has testified what the City’s position is . . . there has not been anything earth-shattering, by any means, as to her interpretation, which . . . does not require an expert to make an assessment of . . . the construction agreement and the bond agreements. The language is plain and I think that our jurors would be able to understand it. […] She has given a perspective that would be consistent with the common position taken by most people in that situation, even if they were not an attorney. There’s not been any question the Court believes that is clearly giving an opinion as to something that would be outside both question of fact and of expert. 

Developers attorney continued to argue his objection even after the district court had made its ruling. Developer’s counsel added that in his opinion, the City Attorney had crossed the line” when she testified that the performance bond and the development agreement hadn’t expired. The district court noted the continued objection but didn’change its ruling. 

Again, the Court of Appeals emphasized that witnesses may render opinions under § 60-456(a) provided theyre rationally based on the perception of the witness, helpful to the jury in understanding the testimony, and aren’t based on specialized knowledge.  

In this case, the Court of Appeals found that the attorney’s opinion testimony was rationally based on her personal observations of the position taken by the City.  

Regardless of whether the City was correct in the position it took, the attorney’s opinions were helpful to the jury because they explained the actions taken by the City to pursue Developer for collection of the excise taxes and in making a demand on surety on the performance bond.  

Lastly, as the district court noted, the attorney’s opinion testimony didn’t invade the province of the jury because the various agreements weren’t difficult to understand.  

As a result, the Court of Appeals didn’t find that the district court abused its discretion in allowing the City Attorney to present opinion testimony. 

In conclusion, the Court held that after nearly five years of zealous litigation, Surety was able to prove its case to the satisfaction of the jury while Developer wasn’t. 

Although the trial may not have been perfect,” the judgment was affirmed.