chevron-down Created with Sketch Beta.
January 23, 2023 Articles

To Have or Not to Have—That Is the Question (for Expert Witnesses)

Do you need an expert witness in complex litigation, or can a lay witness suffice?

By Travis S. Hunter and Griffin A. Schoenbaum

As any litigator knows, good expert witnesses do not come cheap. Experts spend hours analyzing the discovery record, drafting a report, and sitting for deposition. If the case goes to trial, there are costs associated with getting the expert prepared to testify. But not every case is a multimillion-dollar “bet the company” litigation. Some disputes are much smaller although equally complex. Are experts required in those cases too? And if they are, won’t the cost quickly approach the amount in dispute?

Fortunately, the rules of evidence make clear that not all complex or sophisticated testimony is “expert testimony.” Frequently, lay witnesses can offer “hybrid” testimony that may seem like expert testimony but does not qualify as such under the rules. In smaller disputes, such “hybrid testimony” can satisfy the necessary burdens of proof while also saving substantial resources.

In general, a lay witness can offer opinion testimony if that testimony is (1) rationally based on the witness’s perception; (2) helpful in understanding either the witness’s testimony or a fact in issue; and (3) not based on scientific, technical, or other types of specialized knowledge. See, e.g., Fed. R. Evid. 701; Del. R. Evid. 701. It may be tempting to think that the scope of lay witness opinion testimony is narrow and limited. After all, lay witnesses are generally the storytellers; their purpose is to give a firsthand account of what happened—to the best of their knowledge, perception, and memory. See Virgin Islands v. Knight, 989 F.2d 619, 629 n.4 (3d Cir. 1993) (citations omitted) (“Lay opinion sometimes has been referred to as a shorthand statement of the facts.”). But as courts have found, lay witnesses may opine about a whole host of topics, including some that, at first glance, appear to be firmly in the realm of expert testimony.

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.

Travis S. Hunter and Griffin A. Schoenbaum are with Richards, Layton & Finger in Wilmington, Delaware.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Copyright © 2023, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).