At common law, courts restricted lay opinions. Judge Learned Hand, among others, criticized this prohibition as unrealistic:
Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the ‘facts’ in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose.
Cent. R.R. Co. of N.J. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926).
This tension led to the adoption of Rule 701. Before its amendment in 2000, Rule 701 provided:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
The 2000 amendment added subsection (c), which limited such testimony to opinions “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” The advisory committee sought to prevent evasion of Rule 702 requirements while preserving the “prototypical” examples of lay opinion testimony, such as the “appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.” Fed. R. Evid. 701 advisory committee’s note to 2000 amendments (citing Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995)).
But what separates “prototypical” lay opinion testimony under Rule 701 from the heightened scrutiny of Rule 702? Courts often look to three factors: the source of the witness’s knowledge; the process used to arrive at his or her opinion; and, in specific contexts, the identity of the person providing the opinion.
The source of lay opinion testimony must be personal, firsthand perception. Asplundh, 57 F.3d at 1202 n.16. Experts, on the contrary, may opine in response to hypothetical questions. Id. For example, a corporate officer cannot opine on a company’s value when it did not come from his or her own particularized knowledge but rather from facts learned in discovery and from the opinions of an expert retained for the litigation. Caledonian Bank & Tr. Co. Ltd. v. Fifth Third Bank, 2015 WL 5542544, at *6 (M.D. Fla. Sept. 18, 2015). Even if a witness has firsthand experience, that witness may not go beyond “straightforward conclusions” from those observations. United States v. Riddle, 103 F.3d 423, 429 (5th Cir. 1997). In Riddle, an inspector from the Office of the Comptroller of the Currency had examined the defendant’s bank on two occasions. The inspector could draw specific conclusions from his work on those examinations as a lay witness. However, he could not testify as to “sound banking practices in the abstract” without first qualifying as an expert. Id.
Moreover, a lay witness must arrive at his or her opinion through a “process of reasoning familiar in everyday life.” Fed. R. Evid. 701 advisory committee’s note to 2000 amendments. This is distinct from an expert opinion, which “results from a reasoning process which can only be mastered by experts in the field.” Id. The “employment experience” of a maintenance supervisor does not necessarily qualify the supervisor to opine as to the cause of an accident or the design defect in an aerial lift. Asplundh, 57 F.3d at 1194–1206. By contrast, a contractor could testify as to the amount of damage to a home because that calculation process “is the bread and butter of contractors and others in the business of repairing and remodeling real property.” Encompass Ins. Co. v. Berger, 2013 WL 12124281, at *4 (C.D. Cal. Dec. 10, 2013).
A property or business owner may also testify as to the value of the property or projected profits of the business without qualifying as an expert. United States v. An Easement and Right-of-Way over 6.09 Acres of Land, More or Less, in Madison County, Alabama, 140 F. Supp. 3d 1218, 1239–43 (N.D. Ala. 2015). The advisory committee’s note to the 2000 Amendment explains:
Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis.
But because this rule applies to testimony—and not witnesses—one opinion from the same owner may fall under Rule 701 and another under Rule 702. Just because Rule 701 authorizes an owner to testify as to the value of his or her property does not mean the witness has carte blanche to opine on the value of that property free from Rule 702 and Daubert. The analysis thus turns on the two factors discussed above: the source of the owner’s or officer’s knowledge and the process employed to derive conclusions from that knowledge. Is the testimony based on commonly understood considerations of worth flowing from the witness’s perceptions and knowledge of the property? Tampa Bay Shipbuilding & Repair Co v. Cedar Shipping Co., 320 F.3d 1213, 1215–23 (11th Cir. 2003) (allowing corporate officer/employee testimony about reasonableness of corporation’s invoice). Or is the testimony based on technical and specialized knowledge more broadly? Madison County, 140 F. Supp. 3d at 1242 (testimony by property owner’s principals on value constituted expert testimony because they relied on specialized knowledge obtained as real estate developers, rather than matters that would be familiar to layperson in same position).
In sum, the distinction between expert and lay opinion testimony boils down to the source of facts relied on and the methodology used to reach the opinion. Both types of witnesses derive opinions from facts but get there in different ways. Lay witnesses rely on facts gleaned from personal experience and use methods familiar to everyday people. Expert witnesses use methods outside the ken of ordinary people and may opine on hypotheticals.
Litigators must be wary of this distinction to avoid losing key evidence. If a court determines lay opinion testimony is in fact subject to Rule 702 and Daubert, the court may find such evidence insufficiently reliable or hold it was not properly or timely disclosed. So know the difference, and when in doubt, disclose or be prepared to defend that nondisclosure.
