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Key Differences Between Expert Witnesses and Fact Witnesses

By James Komen, RCA #555

Consulting Arborists are hired to provide The differences between expert witnesses knowledge.” Fed. R. Evid. 701. Rule 701 opinions and information about trees. and fact witnesses may seem subtle, but essentially draws a line between the con- Often, they are called to do so in the there are some key distinctions. Expert tent of the testimonies of fact witnesses context of litigation as experts or even witnesses can be well compensated, but and expert witnesses. as lay witnesses, also known as fact wit- most fact witnesses are paid only nom- nesses. Consultants may be designated inal consideration for their time and Fact witnesses can offer such testimony as experts for litigation, or they may pro- expenses. Fact witnesses can be legally as: vide more limited consulting services for obligated to attend trial or deposition, the parties involved. How a consultant but in most cases, experts have discre- • “The tree’s canopy was green.” is classified can have significant conse- tion over which assignments they take. The witness observed the tree. This quences on their testimony, involvement, And, while expert witnesses can testify observation is based on the witness’s and compensation. to a broad range of topics and assertions, sense of sight. If the witness did not assertions by fact witnesses are very lim- personally observe the tree, then this A witness is an individual who testifies, ited in their admissibility in court. statement would be inadmissible as under oath, a fact that will aid a court hearsay (an out-of-court statement of law in resolving a case. In general, Expert witnesses and fact witnesses are used to prove the truth of the matter “every person is competent to be a wit- governed by different sets of rules with asserted). ness, unless [the rules of evidence] pro- respect to the admissibility of their tes- vide otherwise.” Fed. R. Evid. 601. But timony, the pre-trial disclosure of their • “The tree was 5 feet from the property unless a witness has special qualification identities and opinions, and their com- line.” as an expert in the subject matter, that pensation. This article addresses some This assumes the witness actually witness will be limited to her own per- important differences between the two measured or perceived the tree’s distance sonal knowledge of the matter at hand. through the lens of consulting arboricul- from the property line. Although it may Fed. R. Evid. 602. Statements given by ture. Though this article focuses mainly include the use of a tool (a measuring witnesses are evaluated by the court’s on the Federal Rules of Evidence and Fed- tape, in this case), the results of the finder-of-fact—the group or individual eral Rules of Civil Procedure, most state measurement were directly perceived. charged with determining the answer procedural laws regarding witnesses share to a factual question based on evidence a number of close similarities. An in-depth • “The tree appeared healthy.” admitted at trial. discussion of various states’ procedural Unlike the prior two assertions, this laws is beyond the scope of this article. one is an opinion. Opinion testimony The resolution of questions of fact often from fact witnesses is admissible if requires specialized knowledge, experi- Testimony the opinion is rationally based on ence, or training to interpret facts. Thus, According to Federal Rules of Evidence the witness’s perception. Here, the there is a need for expert witnesses, those Rule 602, fact witnesses may testify fact witness perceived the canopy who are qualified by “knowledge, skill, to a matter only if they have “personal was green and inferred the tree was experience, training, or education” to knowledge” of it. Fed. R. Evid. 602. This healthy. Although another witness may “help the trier of fact to understand the includes not only sensory and perception, contradict and opine that the tree was evidence or to determine a fact in issue.” but also opinions “rationally based on the not healthy despite its green canopy, Fed. R. Evid. 702. witness’s perception” and “not based on this assertion is still admissible for the scientific, technical, or other specialized finder of fact to evaluate during trial.

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Key Differences Between Expert Witnesses and Fact Witnesses continued

Fact witnesses cannot offer testimony c) The testimony is the product of reliable stock pricing and tree measurements. It such as: principles and methods. must be the product of reliable principles d) The expert has reliably applied the and methods, such as those outlined • “Tree cables should be inspected annually.” principles and methods to the facts of in the Guide for Plant Appraisal. And This is an assertion of the standard the case. the expert must also reliably apply the of care, the conduct that would be principles and methods to the facts of expected of a reasonably prudent Fed. R. Evid. 702. the case. person. It is an opinion based on Some states have a more stringent require- • Scientific or Technical Knowledge:An existing documentation, such as best ment for expert designation. California expert witness may explain the results management practices and industry requires experts have knowledge that is of a relevant scientific study and how standards. Since these are not common “sufficiently beyond common experi- they apply to the facts of the case. For knowledge, a fact witness would not ence…” Cal. Evid. Code § 801. example, a study showing the efficacy be allowed to testify to them. In rate of different trunk injection methods contrast, an expert witness in the Unlike a fact witness, an expert is not could be used as evidence to show that a field of arboriculture could make required to have “personal knowledge” of party met its duty of care when it chose this assertion if she was qualified by the matter at hand, and the expert may the method with the highest efficacy adequate experience, knowledge, and base his or her opinion on facts or data rate. training to do so. “that the expert has been made aware of In addition to an expert’s opinions or personally observed.” Fed. R. Evid. regarding the matter at issue, the expert • “If the tree were not pruned in this way, 703. For example, although the expert will also be asked to testify to his or her it would not have died.” may not have personally witnessed the credibility. This may include the expert’s This assertion is a hypothetical; the tree irrigation provided to a tree, the expert credentialing level, past education, or was actually pruned, so the witness is may opine on the sufficiency of irriga- experience in the field. But, while an offering an opinion of a scenario that he tion based on another person’s recollec- expert can discuss her qualifications out- did not directly perceive. This assertion tion of the irrigation schedule. “Unlike side the facts of the case at hand, fact would be inadmissible by a fact witness an ordinary [fact] witness…, an expert witnesses cannot testify as to their own but admissible by a qualified expert is permitted wide latitude to offer opin- honesty and credibility unless their repu- witness. ions, including those that are not based tation has been attacked. (Easton 2000). on firsthand knowledge or observation.” • “He deliberately poisoned the tree.” Daubert v. Merrell Dow Pharm., Inc., 509 Compensation for Testimony This assertion is inadmissible whether U.S. 579, 592. As an inducement for spending time the witness is a fact witness or an gathering data and formulating an opin- expert witness. It is asserting another Based on these requirements, experts ion for the case, experts can be paid for person’s state of mind, which cannot may offer testimony such as: their services. Payment may be hourly, be known—only inferred. While the per diem, or a flat project rate. Some witness may testify to facts that support • Standard of Care: The level of consultants charge a “designation fee” in such a conclusion, it is up to the finder performance at which a reasonably addition to their hourly rate to reflect the of fact to make the determination of a prudent person would be expected to opportunity cost of reserving a trial date person’s state of mind. act is critical in determining whether on the calendar, even if the case settles a party’s duty of care was met in a tort before trial. However, the expert’s com- In federal court, expert witnesses may negligence case. Testimony regarding pensation cannot be contingent upon the testify opinions based on information the standard of care expected of an outcome of the case, or the jury’s percep- that they received and did not directly individual will assist the finder of fact tion of the credibility of the expert will perceive, provided that each of the four in determining whether there was a come into question. All forms of pay- requirements in Rule 702 are met: breach of duty, which is a fact at issue ment and agreement between the expert in such a case. and the hiring attorney are discoverable a) The specialized knowledge [helps] the • Tree Appraisal: An appraisal of the value (see Pre-Trial Disclosure below) by the trier of fact to understand the evidence or cost of a tree will help the trier of opposing party. or to determine a fact in issue. fact determine the amount of loss in b) The testimony is based on sufficient a controversy. It must be based on But whereas expert witnesses may require facts or data. sufficient facts or data, such as nursery special payment for their services, fact

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Key Differences Between Expert Witnesses and Fact Witnesses continued

witnesses cannot be paid for their ser- amounts to compensate him or her for for example), the opposing counsel could vices. Fact witnesses may only be reim- time lost.” N.Y. C.P.L.R. 8001. However, potentially subpoena the consultant and bursed for their direct expenses and the voluntary payment provision must be require him or her to testify at trial or lost time in delivering testimony. ABA tempered by the potential to bias the wit- deposition with only the meager statu- Comm. on Ethics & Prof’l Responsibil- ness. While a fact witness may be com- tory witness fee as compensation. ity, Formal Op. 96-402 (1996). Different pensated more than the statutory mini- jurisdictions provide for witness compen- mum, “the jury should assess whether This is a good reason for a consultant sation amounts, but they all tend to be the compensation was disproportionately to require the attorney to hire him or very skimpy. In California, it is $35 per more than what was reasonable for the her rather than the party involved in the day plus $0.20 per mile traveled. Cal. loss of the witness’s time from work or conflict. If the party to the suit pays the Gov’t Code § 68093; see also 28 U.S.C.A. business.” Caldwell v. Cablevision Sys. consultant, his or her involvement in § 1821 ($40/day plus reasonable travel Corp., 20 N.Y.3d 365. procuring advice is discoverable (see Pre- costs in Federal Court); see also La. Stat. Trial Disclosure below). But if the attor- Ann. § 13:3671 ($8/day plus $0.16/mile Trouble for a consultant arises when he ney hires the consultant, the consultant’s in LA); see also N.Y. C.P.L.R. 8001 ($15/ or she is hired directly by a party to a law- involvement and reports are protected day plus $0.23/mile in NY). suit and not the party’s attorney. If the under work product privilege and only consultant is not designated as an expert discoverable if the consultant is desig- That is not to say a fact witness cannot witness, the consultant’s client does not nated as an expert witness, for which he be compensated more than the statutory have to pay the requested expert witness or she would likely require compensa- minimums. In New York, the “per-day fee rate. Worse, since the consultant pre- tion. Fed. R. Civ. P. 26. fee does not preclude a party from vol- sumably has personal knowledge of the untarily paying such witness additional matter (after observing the tree in person,

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Key Differences Between Expert Witnesses and Fact Witnesses continued

Pre-Trial Disclosure In contrast, some states require full dis- they use to formulate opinions. If a wit- After a complaint is filed by a plaintiff closure of all communication between ness is intended to be a hybrid, he or she and an answer is filed by a defendant, the designated expert and the attorney must be disclosed as an expert witness the next phase of the litigation timeline and all draft versions of reports. Flor- according to Rule 26(a)(2) or the wit- begins: discovery. Discovery is a pre- ida allows discovery of all drafts and ness’s expert testimony will be excluded. trial exchange of information between communications between attorney and Musser et ux. v. Gentiva Health Services, the two parties. Most information relat- expert. Peck v. Messina, 523 So. 2d 1154. f/k/a Olsten Health Services, No. 03-1312, ing to a case is “discoverable,” meaning See also Nat’l Steel Prod. Co. v. Superior 2004 WL 145335 (7th Cir. Jan. 28, that a party can compel the opposition Court, 164 Cal. App. 3d 476 (identify- 2004). to provide a copy of it during this phase. ing an expert as a witness in CA waived Discoverable materials include, “all doc- the attorney-client privilege). Some cases So, if a consultant is subpoenaed as a fact uments, electronically stored informa- can begin in state court and get removed witness, only testimony that relates to the tion, and tangible things that the disclos- to federal court; others can be remanded witness’s personal knowledge, direct per- ing party has in its possession, custody, or from federal court to state court, subject- ception, or opinion rationally based on control and may use to support its claims ing them to the new jurisdiction’s rules that perception is admissible. That means or defenses…” Fed. R. Civ. P. 26. of civil procedure. It is good practice for that opinions regarding standard of care, a consultant to treat all communications hypotheticals, and scientific research are However, there are some documents and and reports with the same sensitivity and inadmissible. While it may seem that an communications that are protected by caution as any other ordinarily discover- unscrupulous attorney may obtain free the work product privilege—the option able materials. (or very inexpensive) expert testimony by for a party’s attorney to withhold materi- skipping designation and subsequently als prepared in anticipation of litigation. When an expert is designated, the oppos- subpoenaing an expert, the testimony These materials may be disclosed volun- ing party must be informed. In federal would not necessarily be worth much to tarily or withheld, so long as the con- court, designated expert witnesses must that attorney because any opinions rely- sultant providing the information is not be declared at least 90 days prior to the ing on technical knowledge would be designated as a testifying expert witness. trial date, and all reports and materials inadmissible. Dragging the consultant Some consultants are never designated upon which the expert will rely must be into court would be a waste of time for as experts; they provide their opinions furnished to the opposing party. This everyone involved. to the attorney of record, and then their is an important step, because failure to reports are never disclosed to the oppos- identify witness as required in Rule 26 If a consultant is served with a subpoena ing party. But once an expert witness is will result in exclusion of that witness’s to appear as a fact witness, it is advis- designated, their information must be testimony. Fed. R. Civ. P. 37 (c) (1). able to consult a legal advisor regarding provided to the opposing party, and the the applicable jurisdiction’s procedural expert’s materials and communications Experts must be disclosed in advance of rules. Non-party witnesses are permitted become discoverable, subject to some trial, but lay witnesses need not be dis- to have their own counsel. limitations. closed in advance of trial. (Kreiter 2016). This means that consultants can still be Conclusion In federal court, “communications subpoenaed and dragged into court after Fact witness testimony can only be an between the party’s attorney and any the expert designation period has passed. individual’s direct knowledge or opinions [expert] witness” are still privileged (even However, if they are named as witnesses rationally based on perception. Expert after designation), except for communi- after the designation period, they will testimony can be an opinion or infor- cation relating to compensation for the only be fact witnesses, and their testi- mation based on specialized knowledge, expert or the facts or assumptions relied mony would be limited to testifying their training, and experience. Expert testi- upon in forming the expert’s opinion. personal knowledge of the matter. mony is entitled to special protections, Fed. R. Civ. P. 26. Also, federal court but it is subject to rules of disclosure, protects draft reports, so a consultant can Some expert witnesses are hybrid wit- timing, and compensation. These rules prepare a report and revise it, and the nesses having both personal knowledge can vary by jurisdiction in critical ways. opposing party would only be entitled pertaining to the matter at hand relating A prudent consultant should seek the to review the final version of the report. to their observations and perceptions and advice of a qualified legal advisor. Fed. R. Civ. P. 26 (b)(4)(b). also specialized technical knowledge that

American Society of Consulting Arborists 9 Arboricultural Consultant volume 52 issue 1 2019 < home Example Key Differences Between Expert Witnesses and Fact Witnesses continued Reports Works Cited James Komen is a Consulting Arborist in For Consulting Arborists 3rd Ed. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. California specializing in risk assessment 96-402 (1996) and tree appraisal. He employs principles Cal. Evid. Code § 801 This is your resource of finance and accounting to help clients Cal. Gov’t Code § 68093 for knowing what make informed management decisions Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, information to 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993) for individual trees and tree inventories. Easton, Stephen D. Ammunition for the Shoot-Out with include and how to the Hired Gun’s Hired Gun: A Proposal for Full Expert Witness Disclosure, 32 Ariz. St. L.J. 465, 478 (2000). format Consulting Fed. R. Civ. P. 26 Arborist reports. The Fed. R. Civ. P. 37 book encompasses Fed. R. Evid. 602 practice reports Fed. R. Evid. 701 from students of the Fed. R. Evid. 702 ASCA Consulting Academy and a real- Fed. R. Evid. 703 life report as submitted by an author to Kreiter, Maria L. How to Distinguish Lay and Expert Witness Testimony. American Bar Association. 2016. an actual client. Accessed January 2018. Musser et ux. v. Gentiva Health Services, f/k/a Olsten Health Services, No. 03-1312, 2004 WL 145335 (7th Cir. Jan. 28, 2004). Order your copy at Peck v. Messina, 523 So. 2d 1154 www.asca-consultants.org

American Society of Consulting Arborists 10 Arboricultural Consultant volume 52 issue 1 2019