Bad Week for Lawyer Witnesses
Testimony from attorney witnesses has not fared especially well in the Daubert era. Indeed, so far as my research discloses, no federal appellate decision has upheld the admissibility of expert attorney testimony against challenge in this millennium. Two recent rulings from the Sixth and Eighth Circuits continue this humiliating trend.
The Sixth Circuit decision, United States v. Collier, No. 02-3081 (6th Cir. July 2, 2003), is unpublished. A businessman included false information on an SBA loan application. He later filed bankruptcy proceedings, and the loan indebtedness was discharged. The government manifested its annoyance by filing criminal charges for bank fraud. At his criminal trial, the businessman called his bankruptcy lawyer, who testified as an expert concerning his mortgage amortizations, and who also opined as a lay witness that the businessman lacked the requisite financial sophistication to form the necessary criminal intent. The district court struck the mens rea testimony under Fed. R. Evid. 704(b), which bars expert evidence on criminal intent, and the businessman was found guilty. On appeal, the Sixth Circuit correctly held Rule 704(b) inapplicable, because the bankruptcy attorney offered only lay opinion on mens rea. But the appellate panel went on to affirm the exclusion, on the grounds that the witness's status as an expert and a lawyer could lead the jury to impart undue weight to her testimony, warranting its exclusion under Rule 403 on the ground that its potential to confuse the trier of fact outweighed its probative value.
At least the bankruptcy attorney avoided the ignominy of having her testimony held "unreliable" under Daubert. She could be forgiven, nevertheless, for feeling miffed at seeing her testimony stricken because of her training and expertise -- perhaps not an unprecedented result, but surely a rare one.
The Eighth Circuit's decision involved arbitration proceedings between Dow Corning and its insurer, which disputed coverage for Dow's silicone breast implant liabilities. After Dow lost in arbitration, it moved to vacate the arbitrators' award in the Eastern District of Missouri, on the grounds, inter alia, that one of the arbitrators initiated ex parte contacts on scheduling and other matters. In support, Dow trotted out a retired judge and arbitration expert, who opined that the ex parte communications were both improper and prejudicial. The district judge considered this to be testimony on issues of law, which it fell within the province of the court to decide, and so it struck the testimony before declining to vacate the award. On appeal, the Eighth Circuit saw no basis for reversing the evidentiary decision, but did conclude that the arbitration was nonbinding, and directed the district court to modify its judgment accordingly. See Dow Corning Corp. v. Safety Nat'l Cas. Corp., No. 02-2048 (8th Cir. July 9, 2003).
Is it possible that judges sometimes disfavor attorney experts because the judges feel their own legal expertise to be affronted? On the face of things, it seems gratuitous to have stricken the arbitration expert's testimony in the Dow Corning case, since there was no jury, and since the ex parte contacts in question appear to have represented a technical infelicity at worst, and not to have worked any outrageous prejudice. A judicial finding to that effect arguably would have done the job. But perhaps there are more benign explanations -- e.g., that when a litigant files an evidentiary motion, judges feel obliged to rule on its merits. At all events, one is hard pressed to find much fault with the ruling here.
The Sixth Circuit decision, United States v. Collier, No. 02-3081 (6th Cir. July 2, 2003), is unpublished. A businessman included false information on an SBA loan application. He later filed bankruptcy proceedings, and the loan indebtedness was discharged. The government manifested its annoyance by filing criminal charges for bank fraud. At his criminal trial, the businessman called his bankruptcy lawyer, who testified as an expert concerning his mortgage amortizations, and who also opined as a lay witness that the businessman lacked the requisite financial sophistication to form the necessary criminal intent. The district court struck the mens rea testimony under Fed. R. Evid. 704(b), which bars expert evidence on criminal intent, and the businessman was found guilty. On appeal, the Sixth Circuit correctly held Rule 704(b) inapplicable, because the bankruptcy attorney offered only lay opinion on mens rea. But the appellate panel went on to affirm the exclusion, on the grounds that the witness's status as an expert and a lawyer could lead the jury to impart undue weight to her testimony, warranting its exclusion under Rule 403 on the ground that its potential to confuse the trier of fact outweighed its probative value.
At least the bankruptcy attorney avoided the ignominy of having her testimony held "unreliable" under Daubert. She could be forgiven, nevertheless, for feeling miffed at seeing her testimony stricken because of her training and expertise -- perhaps not an unprecedented result, but surely a rare one.
The Eighth Circuit's decision involved arbitration proceedings between Dow Corning and its insurer, which disputed coverage for Dow's silicone breast implant liabilities. After Dow lost in arbitration, it moved to vacate the arbitrators' award in the Eastern District of Missouri, on the grounds, inter alia, that one of the arbitrators initiated ex parte contacts on scheduling and other matters. In support, Dow trotted out a retired judge and arbitration expert, who opined that the ex parte communications were both improper and prejudicial. The district judge considered this to be testimony on issues of law, which it fell within the province of the court to decide, and so it struck the testimony before declining to vacate the award. On appeal, the Eighth Circuit saw no basis for reversing the evidentiary decision, but did conclude that the arbitration was nonbinding, and directed the district court to modify its judgment accordingly. See Dow Corning Corp. v. Safety Nat'l Cas. Corp., No. 02-2048 (8th Cir. July 9, 2003).
Is it possible that judges sometimes disfavor attorney experts because the judges feel their own legal expertise to be affronted? On the face of things, it seems gratuitous to have stricken the arbitration expert's testimony in the Dow Corning case, since there was no jury, and since the ex parte contacts in question appear to have represented a technical infelicity at worst, and not to have worked any outrageous prejudice. A judicial finding to that effect arguably would have done the job. But perhaps there are more benign explanations -- e.g., that when a litigant files an evidentiary motion, judges feel obliged to rule on its merits. At all events, one is hard pressed to find much fault with the ruling here.
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