July 23, 2012

Gregory T. Douds is a CPA, attorney and county judge in Georgia. In this article, he pulls from all areas of his background to provide ideas for alternatives to expensive expert witnesses.

I have represented clients in hundreds of hearings and trials in the Georgia and Maryland courts, as well as in the U.S. Bankruptcy Court. Never once have I put up an expert witness.

That was never a strategy choice, but rather a cost-benefit decision for my clients. (Or simply their lack of money.)

Once I put on my CPA hat and testified regarding a federal pension allocation in a divorce trial – at the last minute and for a low fee – with success. I’ve also heard hundreds of civil cases as a county magistrate where I’ve seen too many attorneys struggle while missing some obvious solutions.

Hand on Bible

Many of us have faced this evidentiary dilemma. So what are some creative ways to handle the absence of valuable expert testimony at trial? I will use familiar Georgia law for examples – substitute your own state’s statutory and common law for your needs.

The Evidence Code Is Your Friend

Too many trial lawyers don’t pay attention to the nuances and exceptions affecting evidence laws. Careful research of the evidence laws of your jurisdiction can reveal ways to get evidence before the court without expert testimony.

The key is to use your available witnesses to their best advantage, to identify for the court legal reasons why certain things should come into evidence, and to be prepared with legal references to overcome anticipated objections.

Remember, most lawyers will argue “hearsay,” “best evidence,” or “lack of foundation,” without really being adept at arguing those objections against someone who comes prepared with statutes and case law for particular points of evidence.

Judicial Notice: A small number of specific items are judicially noticeable by statute. But common law is replete with examples of common-knowledge information that can, and cannot, be judicially noticed. In Georgia, you might need an expert’s testimony about the weather, but the time of sunrise and sunset can be judicially noticed. (Consider using the testimony of your witness corroborated by newspaper weather statistics for a particular day.)

There are many common law examples of judicially noticeable facts relating to weather, science, geography, political facts and other facts of common knowledge.

Lay Opinion Testimony: Although a common subject of objections, lay opinion testimony as to market value is admissible in Georgia if the witness has had an opportunity to form a “correct” opinion. The trick is to support the opinion with the documents that led to it, such as automobile blue-book values, repair estimates or the client’s research notebook.

In one case, the defense expert was an experienced professional insurance adjuster who used a method supported by case law. The pro se plaintiff testified based on online Kelley Blue Book research, repair estimates and her own experience with the car. The defendant’s case law only supported the notion that the expert’s method was reasonable as a business policy, but not as to a particular car.

Common law showed the pro se plaintiff’s methods to be admissible and credible, and she won her case.

Learned Treatises: Soon, Georgia law will permit the use of statements made in learned treatises to be read into evidence and used for the cross-examination of expert witnesses. Some other states already permit this use of learned treatises. An example might be to use a copy of a Chilton’s auto repair manual as a learned treatise to defeat the testimony of a plaintiff’s automotive expert on cross-examination. If your client has lifetime experience as a backyard auto mechanic, his testimony might carry substantial weight and credibility.

Statistics and Actuarial Science: A Georgia statute provides that the American Experience Mortality Tables shall be admissible as to life expectancy in a civil case, and common law says that in a death action the jury may apply those tables using any method of calculation it knows to be correct.

Perhaps your witness is a company officer with financial experience, your client’s CPA or your client himself. He might not be an actuary expert, but he still might be accepted as an expert in finance, or his lay opinion might be good enough, given a proper foundation. His Excel spreadsheet using the American Experience Mortality Tables might persuade a judge or jury.

Date and Time: Stern’s United States calendar and Stafford’s Office Calendar are admissible in Georgia as to dates and times between them without further proof.

Use of the Other Side’s Expert: So your opponent has an expert and you don’t? Just use intensive cross-examination to ask about chain of custody and other deadly issues. If you’re careful not to ask the open-ended question to which you don’t know the answer, your cross might turn the decision.

Much of the work has been done for you by statute, and experts aren’t always needed to make proof to the judge or jury. Subpoena records from the other side as needed, and take maximum advantage of your available witnesses’ knowledge and experience.

The lawyer with the best evidentiary skills can make a great case on a small budget.

This article was originally posted on July 23, 2012 and the information may no longer be current. For questions, please contact GRF CPAs & Advisors at marketing@grfcpa.com.