The Attorney as an Expert Witness

October 28, 2014 § Leave a comment

Lecia Spriggs and her husband, Kurt Buehler, were involved in a divorce trial. Lecia had consulted with Dennis Horn, an attorney, about disability policies and their requirements, and she tried to call him as an expert witness. Kurt objected on the basis that the law does not recognize expertise in the practice of law. Lecia countered that his testimony would be focused on insurance industry practices, and not on the practice of law. The judge rejected the testimony as speculative.

Thus thwarted, Lecia tried to call Horn as a fact witness, which drew an objection based on failure to identify him as a fact witness in discovery.

In its decision in Spriggs v. Buehler, handed down April 8, 2014, the COA addressed the situation this way:

¶38. Lecia argues that Horn’s expert testimony regarding “the normal and customary actions of disability carriers” should have been admitted. Horn was to give his opinion that a van Lecia had observed near her home “was likely someone conducting surveillance of her on behalf of Northwestern.” Lecia also claims that Horn “should have been allowed to testify as to what he advised Lecia to do in order to minimize the possibility of termination of her payments[.]”

¶39. Mississippi Rule of Evidence 702 governs the admissibility of expert testimony, providing:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

“Relevancy and admissibility of evidence are largely within the discretion of the trial court[,]” and the trial court’s decision will only be reversed “where that discretion has been abused.” Terrain Enters. Inc. v. Mockbee, 654 So. 2d 1122, 1128 (Miss. 1995) (quoting Hentz v. State, 542 So. 2d 914, 917 (Miss. 1989)). We agree with the chancery court’s conclusion that the “expert” information offered by Horn (i.e., how litigation concerning disability claims could last up to two years, and how insurance companies often conduct surveillance on claimants) was speculative and not based on any sufficient facts or data or reliable principles or methods. Counsel for Lecia acknowledged at trial: “The purpose of Mr. Horn’s testimony is to discuss his experience in these types of actions and what could happen and what may happen in the event [Lecia] does certain things. And if this does happen, what are her consequences after that?” (Emphasis added). Accordingly, we find no abuse of discretion in the chancellor’s decision to exclude Horn as an expert witness.

¶40. Horn was also excluded as a fact witness due to Lecia’s failure to include him as such in the scheduling order. As we have already stated, a trial court has “considerable discretion” in managing pretrial discovery. See Bowie, 861 So. 2d at 1042 (¶14). Lecia does not dispute that Horn was not listed as a fact witness in discovery according to the scheduling order. Therefore, we find no abuse of discretion in the chancellor’s decision to exclude Horn as a witness.

In the case of Robertson v. Robertson, 812 So.2d 998, 1004 (Miss. App. 2001), which involved a strikingly similar situation at trial, the COA went further. In that case, counsel for respondent in a child-support modification case sought to call Covington, his former attorney, to testify about the parties’ intent in including certain language on a property settlement agreement. Judge Payne, for the court:

¶ 18. The chancellor excluded Covington’s testimony stating that as chancellor she has expert knowledge of appropriate child support and interpretation of language contained in property settlement agreements. Therefore, the chancellor found that Covington’s testimony would not be necessary to assist the court in determination of any of those issues. The chancellor further found that Debbie would be at a substantial disadvantage because the identification of Covington as an expert did not give Debbie adequate information that Covington would be called as a fact witness, and Debbie’s only source of evidence to defend against Covington’s testimony would be Debbie’s own attorney. Since Mississippi Rules of Professional Conduct 3.7 prohibits an attorney from being both a witness and counsel in the same case, the prejudice would be that Debbie would have to hire a new attorney before the trial could continue or forego her defense which could be proven only by her attorney of record as a witness.

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