When an Attorney Serves as an Expert Witness – A Recent Exclusion and Considerations

By Maggie Tamburro

A Colorado federal district judge recently excluded certain testimony offered by an attorney serving as an expert witness, finding that the attorney-expert will not be allowed to testify where his opinions would usurp the role of the court in deciding which legal principles govern or dictate to the jury how it should find on certain issues.

Issued September 6th in a published opinion out of a U.S. District Court in Colorado, the ruling offers an opportunity to stay abreast of recent expert witness related rulings – this one made by the Hon. Robert E. Blackburn – as well as merits our attention this week on an expert witness area that can give rise to a number of case-specific considerations: When an attorney serves as an expert witness.

The same framework of rules and precedent apply to admissibility of expert witness testimony in federal cases – namely Federal Rule of Evidence 702 and the non-exclusive factors for reliability and relevancy as set forth in Daubert and its progeny – regardless of whether the expert witness is an attorney, a Ph.D., or otherwise qualified under the federal rules  through knowledge, skill, experience, or training.

Although an attorney might make for a good expert candidate in a number of cases, whether or not to actually use an attorney as an expert witness – at least in cases where the choice remains discretionary – can require consideration of a number of subtle case-driven factors relating to the circumstances of the case, legal strategy, the questions at issue, and the impact the attorney-expert is likely to have on the fact finder, to name a few.

According to one industry insider, who chose not to be identified, “The specifics of the job, the type of expert for which we are looking, and the issues that the expert is being asked to address for the client are all factors that may dictate whether or not we look for an attorney to act as an expert witness. For example, if the client is looking for an expert in licensing agreements or mergers and acquisitions contracts, we will most likely be looking for an attorney. These attorneys can come from corporate general counsel pools or law firms.”

The Colorado Case
The Colorado dispute arose in an area of law no stranger to the use of attorneys as experts – that of insurance – when claims for coverage were denied after plaintiff, doing business as a retail Oriental rug store, asserted he incurred property losses when water entered the building of his store damaging approximately sixty of his rugs. Although the insurance company provided some coverage for the claimed loss, plaintiff contended that he was entitled to additional coverage, claiming breach of express contract, bad faith breach of insurance contract, and unreasonable delay or denial of payments under applicable Colorado statutes.

As a defense, the insurer asserted the property at issue was involved in illegal transport or trade, and therefore not subject to additional coverage under the policy. In support of this contention, the insurance company offered testimony of an expert witness – a licensed attorney experienced in matters of international trade and business law.

The defendant’s attorney-expert submitted an expert report and sought to opine that plaintiff violated both state and federal statutes “relating to licensing or registration of money transmitters,” and that some of the merchandise was purchased in violation of the Iranian Transactions Regulation (ITR), as it was “likely” imported into the U.S. during a time period in which the ITR had prohibited importation of such goods.

The plaintiff, however, sought to exclude the attorney-expert’s testimony on grounds that it was inadmissible under Federal Rule of Evidence 702.

The Colorado Court’s Analysis
The court took ample opportunity to discuss its views with respect to applicable law regarding admissibility of the expert’s testimony. Relying heavily on a 1988 Tenth Circuit opinion, the court staked out its territory, stating, “It is ‘the court’s duty to set forth the law’ applicable to the facts presented at trial.”

The court continued, “Generally, it is improper for an expert witness to opine about what law is applicable to a case on trial. Of course, expert testimony concerning factual questions often is permissible. However, there is a significant danger of confusion inherent in allowing expert testimony about legal conclusions to be drawn from particular facts.”

Quoting the Tenth Circuit en banc ruling, Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988), the court continued, “[T]estimony on the ultimate factual questions aids the jury in reaching a verdict; testimony which articulates and applies the relevant law, however, circumvents the jury’s decision-making function by telling it how to decide the case.”

The court continued, quoting another opinion out of the Tenth Circuit, this one decided in 2007, “While expert witnesses may testify to the ultimate matter at issue . . . this refers to testimony on the ultimate facts; testimony on ultimate questions of law, i.e., legal opinions and conclusions, is not favored.”

In an effort to draw the line, making a distinction between admissible and inadmissible expert testimony here, the court again quoted liberally from Specht, “[A]n expert’s testimony is proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function. However, when the purpose of testimony is to direct the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the case.”

With that, the court found that to the extent the attorney-expert’s proffered testimony was in contravention of those principles – testifying to particular regulations or statutes believed to be applicable to the facts at hand, and whether those statutes and regulations were violated here – constituted improper attempts to usurp the court’s role and instruct the jury with regard to its findings.

Food for Thought with regard to Using Attorneys as Experts?
Consistent with the nuanced-filled nature of expert witness testimony, certain subject matters more readily lend themselves to retaining an attorney as an expert witness than others. However, the exclusion perhaps serves as a reminder that delicate considerations may be warranted when contemplating whether to use an attorney as an expert witness.

Does the issue in dispute require that the attorney-expert witness have business experience or is more academic experience required? How will the attorney-expert’s testimony assist the trier of fact?

Who is the trier of fact? A jury? A judge? An arbitrator? How knowledgeable is the trier of fact in the particular area of law at issue, and will the proffered expert testimony assist the trier of fact or offer merely legal conclusions?

How will the attorney-expert witness be viewed by or relate to the trier of fact? Will the attorney-expert have what may be perceived as industry or other bias?

Are there any conflicts, for example association with a firm that previously represented one of the parties in the dispute? Alleged conflict can surface in a number of different scenarios when utilizing an attorney-expert.

Will the judge perceive the attorney-expert witness testimony as more prejudicial than probative, and exclude it under Federal Rule of Evidence 403, as occurred in a case we wrote about earlier this year?

Does the testimony attempt to dictate which legal principles should govern in the case or instruct the jury as to how they should find – what the court called here usurping the court’s role? Note that, in a footnote to this case, the court politely suggested an alternative, “The parties may, of course, ask this court to take judicial notice of the relevant law under Rule 201 of the Federal Rules of Evidence.”

These questions are not intended to be exhaustive, but could be a useful starting point when deciding whether or not the use of an attorney as an expert witness might be the right path in a particular a case.

Note that the ruling discussed above does not speak directly to attorneys as expert witnesses. The ruling is also consistent with Federal Rule of Evidence 704, which is applicable to all experts and allows an expert to testify as to an “ultimate issue,” but generally does not allow testimony on conclusions of law which tell a jury what decision to reach or are otherwise not helpful to the trier of fact.

But the case does serve as a reminder that using an attorney as an expert witness may warrant some case-specific considerations.

Are there pros and cons of using an attorney as an expert witness? What considerations would you add to the above list?

The citation to the case and ruling discussed above is Bagher, d/b/a/ Cherry Creek Oriental Rugs v. Auto-Owners Insur. Co., Case no. 12-CV-980 (Dist. of Co. Sept. 6, 2013).

Maggie Tamburro

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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