The first important point is that even though lay witness opinion testimony must originate with the witness’s perception, that does not mean that the opinion testimony must be limited to the witness’s perception. In fact, lay witnesses may testify about the conclusions they have drawn from a combination of their perception and any background information they had gathered before arriving at that perception. This is consistent with common sense: Witnesses are people, and people are not blank slates. For example, a confidential informant may have a long history of interacting with a criminal defendant, giving the informant privileged insight into what the defendant means when he uses certain words or performs certain actions. That background information, combined with firsthand experience using the program offered by a sham investment company, may constitute a proper foundation for the informant to opine that the company was a “scam.” See United States v. Hoffecker, 530 F.3d 137, 170–71 (3d Cir. 2008).
Moreover, assuming that lay witnesses have the proper firsthand experience, their opinion testimony may be admissible even if it touches on such specialized topics as the valuation of a corporation. Indeed, in In re Appraisal of Dole Food Co., Inc., 114 A.3d 541 (Del. Ch. 2014), Dole Food Company moved to compel, among other things, supplemental Rule 30(b)(6) depositions regarding the pre-litigation valuations of Dole that the opposing parties’ Rule 30(b)(6) designees had prepared. The opposing parties resisted the motion in part because Dole’s discovery request was not reasonably calculated to lead to admissible evidence insofar as any testimony that the designees could give about Dole’s valuation would constitute inadmissible lay witness opinion testimony. While the court was mindful that Delaware Rule of Evidence 701, like its federal counterpart, prohibits lay testimony about “scientific, technical or other specialized knowledge within the scope of Rule 702,” the court ultimately concluded that the witnesses’ “status as lay witnesses [did] not foreclose their ability to testify on the valuation work they performed or their views on valuation” because the witnesses “seem[ed] more than capable of testifying from personal knowledge about Dole and the value of its shares.” Dole, 114 A.3d at 556.
Just as the Dole lay witnesses’ pre-litigation experience allowed them to testify about Dole’s valuation as lay witnesses, witnesses can use their pre-litigation experience to serve as damages witnesses. For example, a company’s accountant may have firsthand knowledge of the company’s tax returns and balance sheets over a number of years. Based on that knowledge, the accountant may be able to calculate the reduction in profits based on diminishing sales of a certain product over the years and arrive at a damages figure in the form of lost profits. Those calculations, based on the accountant’s personal experience, may allow the accountant to give lay witness opinion testimony about the calculations. See Teen-Ed, Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 402–4 (3d Cir. 1980). Significantly, the accountant may give such lay witness opinion testimony even if the accountant might have been able to qualify as an expert witness.
Lay witness opinion testimony is not limitless, of course. Looking again at the requirements for lay witnesses to give opinions, one can see that lay witnesses cannot opine about what they did not perceive. Accordingly, only expert witnesses may answer hypothetical questions—questions based on data or situations provided to them solely for purposes of the litigation. See, e.g., Fed. R. Evid. 702 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of. . . .”). Further, because lay witnesses may not give opinion testimony involving scientific, technical, or other specialized knowledge, courts have identified certain elements that must be established by expert opinion testimony. E.g., Reybold Grp., Inc. v. Chemprobe Techs., Inc., 721 A.2d 1267, 1270 (Del. 1998) (“[T]ypically expert testimony is required to prove causation in a claim for breach of the implied warranty of merchantability.”). But in light of the wide range of opinions that lay witnesses can give—and the obvious fact that lay witnesses need not be qualified as experts—it is worth considering whether lay witnesses may be able to provide clients with the opinion testimony that they need.
In sum, not all testimony is created equal. While litigators tend to put witnesses in two camps—fact and expert—the reality is that some witnesses are hybrids. Depending on the nature of the case, using a highly skilled lay witness can be more effective and economical than using a highly trained expert.