FRE 702 Permits Expert Opinion Testimony on Industry Practices
Defending a broker, telemarketer, or other salesperson against allegations of fraud in the sale of stocks, products or services often requires enlisting expert testimony as to industry standards concerning the nature and type of disclaimers and caveats typically provided to customers. This testimony is usually offered to persuade the jury that a defendant lacked any intent to defraud, since the implicit argument to the jury is that his/her compliance with commonly observed practices amounts virtually to adherence to a legal standard of conduct. One must of course avoid an explicit and impermissible cross-over into eliciting testimony from an expert that, as a matter of law, the defendant committed no wrong.
This fine distinction is illustrated by Ji v. Bose Corp., 538 F. Supp.2d 354 (D. Mass. 2008), which involved a dispute over the meaning of language in releases signed by the plaintiff-model for a photo shoot. Both sides sought to call expert witnesses, and the opinion reflects the court's relative assessments of the admissibility of the expert testimony. The defendant’s expert was a casting director, who opined that certain language in a release was routinely ignored in the industry and that certain additional language, not present here, was almost always required in order to effect certain restrictions. That testimony, which hewed to the language of industry standards, practices, and expectations, met the Rule 702 and Daubert standard, according to the district court.
The plaintiff-model’s proposed expert fared less well, perhaps because he was an entertainment lawyer who could not avoid the argot of the law. The lawyer-witness proposed to testify that certain release language controlled while other language had no legal force at all. The district court precluded the testimony as impermissible statements to the jury about the requirements of the law, since this expert's proposed testimony contained pronouncements about the effect of common law on the applicability of certain rights (as opposed to the understanding of those rights held by others in the industry as a matter of custom and usage); the lack of consideration reflected in a contract; and the legal precedent held by one document over another.
Shorn of the legal catchwords and phrases - - “common law,” “consideration,” “precedent” – the two experts sounded very much alike, yet the non-lawyer expert passed through the Daubert gates easily while the lawyer-witness was impaled on the gateposts. Moral of the story: if you want to inform the jury of the legal effect of disclaimers and contractual provisions, do not employ a lawyer-witness and lawyer-jargon to do so, but instead have an industry expert communicate the same concepts to the jury in the language of industry custom and usage.
This fine distinction is illustrated by Ji v. Bose Corp., 538 F. Supp.2d 354 (D. Mass. 2008), which involved a dispute over the meaning of language in releases signed by the plaintiff-model for a photo shoot. Both sides sought to call expert witnesses, and the opinion reflects the court's relative assessments of the admissibility of the expert testimony. The defendant’s expert was a casting director, who opined that certain language in a release was routinely ignored in the industry and that certain additional language, not present here, was almost always required in order to effect certain restrictions. That testimony, which hewed to the language of industry standards, practices, and expectations, met the Rule 702 and Daubert standard, according to the district court.
The plaintiff-model’s proposed expert fared less well, perhaps because he was an entertainment lawyer who could not avoid the argot of the law. The lawyer-witness proposed to testify that certain release language controlled while other language had no legal force at all. The district court precluded the testimony as impermissible statements to the jury about the requirements of the law, since this expert's proposed testimony contained pronouncements about the effect of common law on the applicability of certain rights (as opposed to the understanding of those rights held by others in the industry as a matter of custom and usage); the lack of consideration reflected in a contract; and the legal precedent held by one document over another.
Shorn of the legal catchwords and phrases - - “common law,” “consideration,” “precedent” – the two experts sounded very much alike, yet the non-lawyer expert passed through the Daubert gates easily while the lawyer-witness was impaled on the gateposts. Moral of the story: if you want to inform the jury of the legal effect of disclaimers and contractual provisions, do not employ a lawyer-witness and lawyer-jargon to do so, but instead have an industry expert communicate the same concepts to the jury in the language of industry custom and usage.
