Teach the Jury to Fish Instead

By Annie Dike, Esq.

Give a man a fish, and you will feed him for a day, but teach a man to fish, they say, and you’ll feed him for life.  The same sentiment can be applied to expert witness testimony.  Expert witnesses are permitted, and often needed, to help the jury understand scientific or technical issues; however, they cannot tell the jury how to rule—meaning that if they teach the jury how to analyze the evidence properly, as opposed to handing them a proposed verdict, the jury is far more likely to reach the correct verdict on their own.  Furthermore, they will do so without the injection of an impermissible legal conclusion that could taint the verdict.

A recent opinion from the Southern District of Alabama serves as a perfect example of this.  In FNB

Bank v. Park Nat'l Corp., 996 F.Supp.2d 1187 (S.D. Ala. 2014), plaintiff filed a motion in limine asking the court to prohibit defendant’s expert, Donald Coker, from offering improper legal conclusions.  According to the court, plaintiff’s “beef” was with Coker’s opinions that certain parties’ conduct did or did not breach the relevant contracts.  Plaintiff argued that Coker could testify as to the meaning of certain terms and provisions in the contract, i.e., he could teach the jury about these technical issues but could not say whether or not plaintiff breached the contract at issue.  The latter, plaintiff argued, would essentially amount to Coker telling the jury how to rule.  The committee notes to Rule 704 state specifically that “telling the jury what result to reach is not helpful and is therefore not admissible testimony.”  As such, an expert cannot take the stand, point to a party, and say, “he should lose,” as this testimony does not help the jury.  Instead, it invades the jury’s sole duty to make their decision independently by reviewing the facts, as explained sometimes by experts, and applying the law, as provided by the court.  Relying on this line of reasoning, the Southern District of Alabama found that Coker’s opinion regarding certain conduct possibly breaching the parties’ agreements constituted an impermissible legal conclusion, and he was prohibited from offering this opinion to the jury.

So, how can the expert “help” the jury without crossing the line?  Simple—by teaching, not telling.  As is evident in the FNB Bank case, experts can help the jury understand certain technical terms by explaining them in a more approachable way.  The experts may not, however, testify as to what specific actions establish liability.  Take the duty of “good faith and fair dealing” for example.  An expert can explain this concept in a way that makes sense to the jury—a requirement, perhaps, that you treat others the way you would like to be treated.  This helps the jury understand a concept that may have previously been foreign to them.  The expert cannot, however, say what specific non-contractual conduct is required, say an extra five days to cure, to fulfill that duty.  Why?  Because this is a legal conclusion.  It is, essentially, a proposed verdict, a fish.  If the accused party did not give the extra five days to cure, the expert is basically telling the jury to find a breach in the contract, testimony which is impermissible.  See Montgomery v. Aetna Cas. & Surety Co., 898 F.2d 1537 (11th Cir. 1990) (finding expert’s opinion that insurer breached its duty under the policy to defend by failing to hire counsel specializing in tax matters constituted an impermissible legal conclusion).  The rules allow the expert to help by teaching the jury how to understand the evidence better, not by telling them how to rule.  Hand them a fish, and you’re not really helping them, but teach the jury how to fish, and you enable them to find the answer on their own.

Litigators, have you found the limitation on legal conclusions to be a difficult one to follow?  Do you find that the art of offering an expert opinion as opposed to a proposed verdict requires a bit of a balancing act?  Don’t let a slip of the fish cost you your case.  If you want experts who can “teach but not tell” with ease, IMS ExpertServices can find them.

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Annie Dike, Esq.

As a former trial and litigation attorney, Annie Dike has a keen eye for expert evidentiary issues and a clear voice for practical solutions.  Annie is a published author of both fiction, non-fiction, and a comprehensive legal practitioner's guide to hourly billing published by LexisNexis. Annie graduated from the University of Alabama School of Law cum laude.  While in law school, she served as Vice President of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama Trial Advocacy Competition Team as well as Lead Articles Editor of The Journal of the Legal Profession.  Ms. Dike has published articles in The Alabama Lawyer and DRI MedLaw Update and has spoken on numerous legal issues at various conferences nationwide.

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