Can a Lay Witness Offer an Expert Opinion?

Can a Lay Witness Offer an Expert Opinion? If you're a trial attorney, this question may come up more often than you'd expect, because introducing lay witnesses is one method of surprising the counterparty, since there are fewer disclosure requirements and procedures for lay witnesses than for expert witnesses in US federal and state legal proceedings.

As an expert witness (not an attorney) I find that the distinction between lay and expert witnesses is critical. Lay witnesses typically provide testimony based on their personal knowledge or observation, whereas expert witnesses are called upon to offer specialized knowledge that aids the court in understanding complex matters. However, the question often arises: can a lay witness ever give an opinion that might resemble expert testimony? The answer lies in a careful analysis of the rules of evidence and case law, which you should discuss with your legal counsel. The below represents my understanding as a non-lawyer, thus it should not be taken as legal advice.

The Role of Lay Witnesses

A lay witness is someone who testifies about facts they personally observed or experienced. According to Rule 701 of the Federal Rules of Evidence, a lay witness may offer an opinion, but only if it is:

Rationally based on their perception: The opinion must stem directly from the witness's personal observations and experiences, not from specialized or technical knowledge.

Helpful to understanding their testimony or determining a fact in issue: The opinion must assist the court or jury in grasping what the witness saw or experienced, providing clarity to otherwise factual testimony.

Not based on scientific, technical, or other specialized knowledge: If an opinion requires specialized knowledge, it falls under the domain of an expert witness, per Rule 702.

In other words, lay witnesses can offer opinions that are grounded in everyday reasoning and personal experience. For example, a lay witness may testify that someone appeared “nervous” or “angry” based on their demeanor, or that a vehicle seemed to be speeding. These observations are not considered expert opinions because they are accessible to any reasonable person without specialized training.

The Role of Expert Witnesses

An expert witness, on the other hand, is specifically qualified by knowledge, skill, experience, training, or education. Experts are called to offer testimony on subjects that require a deeper understanding beyond common experience, such as medical diagnoses, technical data, or financial calculations. Their testimony must adhere to the standards of Rule 702, which governs the admissibility of expert opinions.

The Gray Area: When Lay Testimony Resembles Expertise

There are situations where the line between lay and expert opinion blurs. In such instances, courts scrutinize the nature of the testimony to determine whether a lay witness’s opinion crosses into expert territory.

For example, in United States v. Figueroa-Lopez, a lay witness was prohibited from giving an opinion that the defendant was acting in the manner of an experienced drug trafficker. The court ruled that this opinion required specialized knowledge and, therefore, fell under the purview of expert testimony.

However, there are cases where lay testimony can approach expert-like opinions without crossing the line (i.e., when opinions are grounded in firsthand knowledge gained from practical experience, not formal expertise).

Practical Scenarios: When Lay Witnesses May Offer Opinion

• Eyewitness Accounts: A lay witness can offer opinions about the speed of a vehicle, the identity of a person they know, or the emotional state of someone they observed. These opinions are rooted in common sense and direct observation.
  
  
• Business Practices: Business owners or employees with firsthand knowledge of standard operating procedures can provide lay opinions about routine matters within their industry. For instance, a restaurant owner may testify about typical food preparation procedures without being considered an expert.
  
  
• Medical Conditions: A lay witness can testify about obvious, observable medical conditions (e.g., someone appeared to have difficulty breathing or seemed unconscious), but diagnosing a specific medical condition requires expert testimony from a medical professional.

Other Jurisdictions Differ, Including U.S. State Courts

Many US states have adopted rules that are similar or identical to the Federal Rules of Evidence, particularly Rule 701 (lay witness opinion testimony) and Rule 702 (expert witness testimony). However, states may interpret or apply these rules differently, leading to variations in what types of testimony are admissible in state courts.  For example,  New York has not formally adopted the FRE, but its courts follow a similar approach regarding lay and expert testimony. New York courts may allow a lay witness to offer opinions in certain situations where the witness has specialized knowledge from experience, but this remains limited. For instance, a New York lay witness might testify about common business practices in their industry without being formally qualified as an expert, as long as the opinion is based on personal experience and not technical or specialized knowledge.

Technically different states follow different standards for the admissibility of expert opinions, namely:

• The Daubert Standard: Under Daubert (adopted by federal courts and many states), the judge acts as a gatekeeper to ensure that expert testimony is scientifically reliable and relevant. This standard tends to be stricter in ensuring that the expert's methodology is sound and applicable.
  
  
• The Frye Standard: Some states, including California (at least historically), follow the Frye standard, which requires that the expert’s testimony be based on scientific methods that are “generally accepted” in the relevant field. Frye is often seen as a more lenient standard than Daubert in some respects.

Under California law, a lay witness may provide opinions that are rationally based on their perception and helpful to understanding the testimony or determining a fact. However, California courts may allow more flexibility in certain types of lay opinions, especially when it comes to areas like business practices or common knowledge.

The difference between Daubert and Frye standards primarily impacts expert testimony, but it also affects how strictly courts will distinguish between lay and expert opinions. A state following the Frye standard might allow lay opinions on subjects that Daubert jurisdictions would restrict to experts, depending on the situation.

Conclusion

While lay witnesses cannot offer expert opinions, they are permitted to provide certain types of opinion testimony based on their personal observations and experiences. The key is that their opinions must be rational, helpful to the trier of fact, and not based on specialized knowledge. This rule ensures that courts maintain the balance between reliable expert testimony and useful lay observations, all while upholding the integrity of the legal process.

Understanding the distinction between lay and expert testimony is vital in preparing for trial. Lawyers must ensure that lay witnesses stay within the bounds of what they are allowed to testify about, while also leveraging their observations effectively to support their case. As always, careful consideration of the rules of evidence will guide which opinions are admissible and which must be left to the experts.

When it comes to intellectual property infringement cases, having the right damages expert can make all the difference in a successful outcome. At my firm, Boschan Corp., we specialize in IP infringement damages and are here when you need a seasoned expert to support your case. As a trusted partner in forensic accounting, we’re ready to help. Visit our website: boschan.com for more information or call us today at (424) 248-8866 to clear conflicts and get started.

Bold Journey Magazine Interviews Cedar Boschan

I enjoyed recently being interviewed by Bold Journey magazine, because it gave me time to reflect on one of the key skills needed to be a top forensic accountant: communication. 

I truly appreciate the mentors and consultants who helped me on my journey to be a better communicator, especially Fred Wolinsky, CPA, Jennifer Wilson, and David Zyla.

If you are interested in joining my team at Boschan Corp., or engaging our firm, you will find that we accord greater emphasis on communication than other accounting firms.  Click here to apply.

To all readers: What communication techniques, tactics and skills do you think are under-or-over-rated when it comes to accounting services?

Q&A with California Talent Agencies Act Expert Edwin F. McPherson, Esq.

Edwin F. McPherson, Esq.

Distinguished entertainment litigator Edwin F. McPherson is the foremost expert on California's Talent Agencies Act (the "TAA").  On the heels of a recent Billboard piece - "Did the California Labor Commissioner Just Shake Up the Music Industry?" - we share the Q&A below to benefit talent representatives.  

To contact Mr. McPherson, visit mcphersonrane.com or call 310-553-8833.

Cedar Boschan: What is the Talent Agencies Act?

Ed McPherson: The Talent Agencies Act is found in California Labor Code Section 1700 et seq.  Essentially, the Act governs the licensing and regulation of talent agents in the State of California.  However, what the Act also does is to preclude anyone who is not a licensed talent agent from procuring employment for “artists” in the entertainment industry.  The concept of “procurement” has been expanded over time to include any negotiation whatsoever, so that anyone who is not a licensed talent agent may not negotiate any terms of an employment agreement for an artist unless that person does so at the request of, and in conjunction with, a licensed talent agent.

Boschan: How does it impact recording artists and their representatives?

McPherson: The Act was enacted to protect artists.  Many questions have been raised in the last several years (primarily by me) as to whether the Act really does what it was designed to do, or whether it actually hurts the very artists that it was designed to protect.  Several years ago, professionals in the music industry lobbied to amend the Act to exempt recording agreements from the Acts proscriptions.  That amendment went unchallenged for many years until the California Labor Commissioner, in the Dwight Yoakam v. The Fitzgerald Hartley Co., etc., et al., Case No. TAC 8774, determined that, because modern recording agreements include elements such as music videos, there are parts of a recording agreement that are subject to the Act and parts that are exempted from the Act.  Now that most, if not all, recording agreements include many other “360” type elements, the so-called “recording agreement exemption” is all but gone.

Unfortunately, there was never an exemption made for the negotiation or procurement of publishing agreements, perhaps because nobody ever contemplated that a publishing agreement could be the subject of the TAA.  However, not all publishing agreements are subject to the TAA.  If the agreement is a simple licensing agreement, licensing the use of one or more compositions, the procurement of that agreement is not considered to be a TAA violation; however, if the agreement purports to require the services of the songwriter to write songs for a period of time, the procurement of that agreement is typically going to be found to be a violation of the Act.

The unfortunate fact of life in the music industry is that agents in the music industry do not typically negotiate recording agreements, publishing agreements, producer agreements, or even mixing agreements – so the TAA basically leaves a musical artist without anyone who is adept at negotiating such deals, who is legally authorized to do so.

Boschan: What about music producers and mixers, and their representatives?

McPherson: There is now an odd dichotomy between how producer agreements and mixer agreements are construed in accordance with the TAA.  There is a case from a few years ago, entitled Lord Alge v. Moir Marie Entertainment, Case No. TAC 45-05 (2008), in which the California Labor Commissioner ruled that a management company that essentially did nothing for two mixer partners but procure employment for them was not liable for violating the Act because a mixing agreement is a recording agreement under the recording contract exemption to the Act.  Moir Marie actually found an expert witness who testified as such – and I can tell you that there is probably nobody else in the music industry that would say that a mixing contract is a recording contract.  In fact, most of the time, mixers do not record anything; they only mix the tracks that have been recorded already.  Even the Labor Commissioner thought twice about her decision, and granted Lord Alge’s motion for reconsideration.  However, unfortunately, the case had already been de novo’d to Superior Court, and jurisdiction therefore removed from the Labor Commissioner.  Although it is doubtful that a similar case will be decided in the same way in the future, lawyers unfortunately are still allowed to cite to the case for authority.

More recently, in fact on August 11, 2014, the Labor Commissioner decided Lindsey v. Lisa Marie Entertainment, Case No. TAC 28811 (2014), in which the successor of the same management company, doing exactly the same kind of procurement for a producer client, was found to have violated the Act.  The Labor Commissioner determined that a producer deal is not a recording agreement.  This, of course, is the proper ruling.  However, the interesting thing is that one could argue that a producer agreement is much more akin to a recording agreement than a mixing agreement.  The hearing officer in the Lindsey case treaded carefully around the Lord Alge case, paying deference to the hearing officer in that case, simply by saying that his decision was limited to the (producer) agreement at hand.

Boschan: How do you help clients who are impacted by the Talent Agencies Act?

McPherson: Although I have often criticized the Act, I have represented countless artists against their former managers and others.  Although I question whether the Talent Agencies Act is good for the industry as a whole, it would be malpractice for me not to use it to the advantage of talent that I represent when their former representatives come after them for commissions.  Similarly, I have represented managers against talent when I do not feel that they have violated the Act, or at least have not violated the Act in a way that permeates the relationship, as defined in the Marathon v. Blasi case.

Boschan: You are a Talent Agencies Act activist.  What changes do you think should be made to the act and why?

McPherson: I think that the entire Act should be looked at very closely in light of the entertainment industry as it exists today – not when the law was originally enacted.  However, the first priority has to be the Solis v. Blancarte case!

###

Ed McPherson has been practicing law for over 30 years.  He is licensed to practice law in California, New York, Massachusetts, and Hawaii, and has litigated cases all over the country.  He is a partner with the Los Angeles entertainment litigation firm McPherson Rane LLP, which specializes in the (talent side) representation of artists in the entertainment industry.  A substantial portion of Mr. McPherson’s practice involves the Talent Agencies Act, about which he has written numerous articles, given many panels, and has testified as an expert witness.