In the last column, we talked about issues you need to consider when you are thinking of calling an expert witness. There are times, however, when you aren’t able to have the benefit of an expert’s testimony. Perhaps the witness isn’t available when you need him. Perhaps your client can’t afford to fly the expert in from parts remote or to pay the expert witness to spend a day in court. Perhaps the court refuses to qualify your witness as an expert. In times such as those, is it possible to get what you need from a nonexpert—that is, from a lay witness?
It is a common misconception that if you want a witness to give an opinion, you have to first qualify that person as an expert. The Federal Rules of Evidence allow opinion testimony by lay witnesses. Rule 701 states that a witness who is not qualified as an expert may give an opinion, if that opinion is (a) “rationally based on the witness’s perception,” (b) “helpful to clearly understanding the witness’s testimony or to determining a fact in issue,” and (c) “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” (Remember that Rule 702 is the rule governing expert witness testimony.)