Lay Witness Opinion Testimony

Feb 4, 2020 | Podcasts, T&E Administration, T&E Litigation

Lay Witness Opinion Testimony,” that’s the subject of today’s ACTEC Trust and Estate Talk.

Transcript/Show Notes

This is Margaret Van Houten, ACTEC Fellow from Des Moines, Iowa. To give us more information on this topic, you will be hearing today from ACTEC Fellows Jamie Pressly of Palm Beach, Florida and Tom Karr of Miami, Florida. Welcome!

The Evidence Subcommittee of the Fiduciary Litigation Committee of ACTEC is presenting a program on commonly encountered evidentiary issues. One of those is lay witness opinion testimony, and our subcommittee member who will speak on that is Tom Karr.

Thank you, Jamie. Let me first start with this, and that is that any good presentation, of course, has at its heart a controversy or conflict that keeps us on the edge of our intellectual seats. The presentation anticipates the next revelation of the subject matter. The presentation, it peels back the onion of all of the issues and the intricacies of the topic that we’re analyzing, and in the end, it leads us to a conclusion. It leads us to statements and ideas that we’ve never had before. A discovery, if you will. This is not one of those presentations. And I say that because this, perhaps, is one of the most uncontroversial topics that I have ever looked at and in fact, it may be so lacking in controversy that someone might question why I delved so far into this. But there are, however, some very interesting observations that I’d like to point out to you today. And first, what I’d like to do is talk a little bit about the variation of the rule depending upon the jurisdiction that you’re in.

Federal Rule of Evidence

The great majority of the states use some iteration of Federal Rule of Evidence 701 and there are three components to that rule that you will find in every state whether or not it has adopted the iteration of Federal Rule of Evidence 701 or the common law has added them through those elements in that state. The first, of course, is that the opinion or testimony must be rationally based upon the witness’s perception, and what’s really being driven at there — and you’ll see throughout my presentation — is that a lay witness, to provide an opinion, has to be speaking from personal knowledge, has to be testifying to observations and thereby drawing their conclusions or their opinions from those personal observations. Two, it must be helpful to clearly understand the witness’s testimony or to determine a fact in issue, which of course is a very liberal standard helpful to determining something. But the thought here is that lay witnesses often have difficulty expressing themselves in language which is not a conclusion or which is not an opinion, and so the bar is set low on the admissibility of that evidence, but it is tested, of course, by cross-examination. And so, the adversarial system steps in as the break to the liberal standard of allowing the evidence in. And the third, of course, is that it may not be based on scientific, technical or other specialized knowledge; and of course this eliminates the risk that the reliability requirements of Federal Rule of Evidence 702 governing expert witnesses won’t somehow be subverted by laying in, so to speak, lay witness opinion testimony when it’s not being tested by the appropriate standards under the Federal Rule of Evidence 702.

States Adoption of Federal Rules of Evidence

Well, 22 states utilize statutes containing the same three components in the Federal Rules of Evidence. Twenty-one states contain the first two components, but not the third component, which is not based on expert knowledge. And two states, New York and Missouri, are governed by common law, and five of these states, interestingly California in particular, have what I call “outlier rules” because they had language that you don’t find in the other rules. California is a little bit unique in the sense that it has a further limitation that I don’t know if it’s a distinction with a difference or not but says, “as permitted by law,” whatever that means. So, you really have to delve deeply into the California jurisprudence, I guess, to find out if there’s some further limitation that doesn’t apply to the other iterations of the statute. So, that’s one of the outliers. Two, Florida is an outlier just because Florida is always an outlier, but Florida also is an outlier because it has components of A and B but it’s sort of a hybrid rule. And Tennessee and Georgia, three and four, they each have codified the “owner opinion rule” which is the rule that allows an owner of property to testify as to the fair market value of the property by virtue of the fact that they own it. There will be more about that later. And five, Virginia uses a statute that includes A and B but Virginia is particularly unique in the sense that they have actually listed the types of subject matters that are permitted for lay opinion testimony, and I’d like to just sort of highlight some of those to you. And, I’m turning to the statute for Virginia and it lists them. It says, “Lay opinion may relate to any matter, such as but not limited to…,” and these are the ones that pertain to our area of practice, “…sanity, capacity, physical condition, disability, the value of property, handwriting.” And, there are many others in this laundry list of items, but it’s interesting because they have taken the committee notes and they have incorporated them into the statute.

So, you might be saying right now, Oh great, actually there is controversy. Look at all of the differences that exist but no, not really. Based on my reading of the cases, the admissibility of opinion testimony is basically handled the same in every U.S. jurisdiction, and in some, if the opinions, inferences or conclusions of the lay witness are based on personal experience and personal observations and otherwise derived from a process — and this is important — of reasoning typically utilized in everyday life, in other words, “we all do it,” then it’s generally going to be admissible. But it could be challenged on cross-examination, but it will generally be admissible. Conversely, if the opinions, inferences or conclusions are not based on personal knowledge, if it’s just something that you’re surmising, then it’s pure speculation. It’s not going to be allowed in by a lay witness, and which is, again, something that we all typically do, because we surmise and speculate a lot. And, if it’s in any way derived from specialized training or knowledge, the testimony, again, will generally not be permitted.

Lay Witness Opinion Applications

So, let’s talk a little bit about some of the specific applications which may make this, hopefully, a little bit more interesting. It should be no surprise to anybody that the great majority of cases decided in the trust in litigation context regarding the application of this rule arise in the context of capacity. A recent Virginia, again Virginia Supreme Court opinion, it is the case of Martin v. Lahti, L-A-H-T-I, I think says it best in the quoted language of the Supreme Court there that, “The rule expressly permits a lay witness to offer an opinion about the sanity or mental capacity of another. Such opinions are properly admitted when they are based on the witness’s personal experience or observations. For instance, when the witness has observed erratic behavior, heard incoherent statements and the like.” That’s the personal knowledge part of it. Yes, you can say: I think the guy is crazy; I don’t think he was crazy. But you have to base it on something that you personally observed, that you saw. Conduct, words, statements, things that the decedent did that caused you to reach that conclusion. So, for example, other examples, and there are a number of them in Pennsylvania in particular that I liked, one in the In Re: Mampe case (Mampe and Cominsky v. Donovan, 846 A. 2d 1256 (Pa. Super.)) in 2007. There, the court affirmed the admissibility of the decedent’s daughter’s lay opinion testimony regarding the decedent’s capacity based on their first-hand observations, even though there was no medical evidence at all that would show that the decedent lacked capacity. Another interesting case out of Pennsylvania, In Re: Bosley in 2011, there, the lay witness testimony actually trumped the expert witness testimony because the lay witness testimony was based upon personal knowledge. I saw this happen. I heard the decedent say these things, whereas the medical expert here was just reviewing medical records post death, and the court said: you know what? That’s just not probative enough for me. Whatever that witness said, however they said it, was much more convincing to the court than some pointy-headed expert. So, that was a very interesting difference. Another one, I just can’t help myself, in Pennsylvania there are a number of these cases. In 2017, in the Marrone v. Dalonzo case, there, it was the handyman. The handyman was able to testify to the capacity of the individual and it didn’t matter that he’s the guy that cut the grass. He’s the guy that showed up every morning and said, “I don’t think that guy knew what he was doing because sometimes he recognized me, sometimes he didn’t recognize me, sometimes he said crazy things to me. I don’t think he really understood what was going on.” And the handyman’s testimony came in and it was powerful in that case.

There are a number of other examples. The one in particular I want to just mention real briefly, because I can see that my time is running out, is there’s a case out of Ohio called In re Gannett (Gannett v. Booher, 465 N.E. 2d 1326 (Ohio Ct. App. 1983)). What is interesting about that is, is that there, it was a doctor’s lay witness opinion testimony that was allowed to come in because he was the treating physician as a general practitioner but not as someone who had specialized knowledge in mental capacity. He was allowed to testify and provide a lay [opinion]. Imagine that. The doctor goes up, he’s qualified as a doctor but he gets to get up there and say all kinds of things where he doesn’t have to go through the Daubert Standard. He doesn’t have to go through 702. But he said, “Look, I treated the guy for 13 years and I watched the decline of my patient.” His testimony comes in, despite the fact that he looks like an expert, but he’s not treated as an expert there. And finally, I wanted to mention one more aspect that I had mentioned before, so let me just run back to it real quick, which is providing opinion testimony about the value of property. It’s often said axiomatically, as a recovering commercial trial lawyer, I’ll tell you. I’ve said many times, “Oh, you know they own the property. He’s allowed to come in. He’s automatically qualified to talk about the value of his property. He owns it.” But, that is qualified by the fact that sure, you can do that without being an appraiser or without having a real estate license, but you actually have to show you have personal knowledge about the property. Because hey, we could own property; property can be owned in a portfolio and people know nothing about it. Not even know, really, where it is. So you have to have some personal knowledge about the property.

In summation, I haven’t gone through any of the, where you can’t do it, but there are two topics in particular I’ll just mention briefly, which is testamentary intent. In other words, what’s going on in the testator’s head when he signed the document, or a construction of a document. Those things, generally, you’re not permitted to use lay witness opinion testimony because of the speculative nature of that testimony and also because of the expertise needed when it comes to construing documents.

So, with that, I hope I’ve given you something interesting to think about with lay witness opinion testimony. Thank you.

Thank you for helping us understand more about Lay Witness Opinion Testimony.

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