14.10 Article Vii—opinions and Expert Testimony

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

14.10 ARTICLE VII—OPINIONS AND EXPERT TESTIMONY

14.1001 Index.

2:701. Opinion Testimony by Lay Witnesses ²⁹

2:702. Testimony by Experts ³⁰

2:703. Basis of Expert Testimony ³¹

2:704. Opinion on Ultimate Issue ³²

2:705. Facts or Data Used in Testimony ³³

2:706. Use of Learned Treatises With Experts ³⁴

14.1002 Comments.

A. In General. The Rule 2:701 text recognizes that the approach in Virginia has never been to create a limiting list of specific circumstances where lay opinion is permitted but to recognize that lay testimony that partakes of opinion to some extent yet provides a convenient and accurate

[Page 1005]

way to recount in court the observation of the witness must be assessed under a flexible approach measuring the reliability and helpfulness of such proof in each situation presented. As adopted, this rule distills the underlying principles that have guided the specific decisions already in the case reporter volumes allowing specific instances of lay opinion testimony. The key factors identified are whether there is an underlying factual basis for the testimony of this lay witness, found in the perceptions or observations of the individual and whether the opinion-like nature of the summary expression being offered ("he appeared intoxicated to me," for example), amounts to an effective means for the witness to convey the substance of his or her observations to the trier of fact for evaluation. An important unstated subtext of Rule 2:701, therefore, is the message that Virginia law on lay opinion is not fixed and that additional examples of proposed lay opinion testimony that meet these criteria—and are comparable to the numerous listed circumstances already recognized in case law—may qualify for admission.

Codification of the evidence rules has made no change in the Virginia doctrines governing receipt of evidence from experts. Since the General Assembly many years ago adopted a version of the national rules governing experts, making them applicable only in civil cases, that distinction between traditional common law doctrines that are applicable in criminal proceedings and the statutory tests that are more open to receipt of expert proof in civil cases is replicated in the rules of evidence. For example, Rule 2:702(a) contains separate subsections for civil and criminal case principles concerning use of expert testimony but a single subsection (b) relating to the form of expert opinion applicable in all cases, civil or criminal.

B. Rule 2:701. Rule 2:701 (opinion testimony by lay witnesses) allows the presentation of opinion testimony by a lay witness if it is "reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness' perception." This is partially based on Va. Code § 8.01-401.3(B), which authorized a lay witness to offer an "otherwise admissible opinion." That statute did not provide any specific examples. The rule does, stating that the opinion may relate to "any matter" which could include (but is not limited to):

1.	Sanity,
2.	Capacity,
3.	Physical condition or disability,

[Page 1006]

4.	Speed of a vehicle,
5.	The value of property,
6.	Identity,
7.	Causation,
8.	Time,
9.	The meaning of words,
10.	Similarity of objects,
11.	Handwriting,
12.	Visibility, or
13.	The general physical situation at a particular location.

However, a lay witness can still not offer an opinion of law.

C. Rule 2:702. Rule 2:702 (expert testimony) reiterates and restates Va. Code § 8.01-401.3 allowing the use of expert testimony if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The rule further allows an expert to offer opinion testimony "established with a reasonable degree of probability" or provide "empirical date from which such probability may be established in the mind of the trier of fact." In any event, speculative testimony or testimony opining on the credibility of another witness is not admissible.

The general standard of reasonable professional certainty is also addressed in the case law and only indirectly addressed in Rule 2:702(b).

Some topics that have generated a large body of case law are not expressly mentioned in this rule, such as the considerable volume of decisions in Virginia on speculative or projected claims for damages, such as lost future earnings or profits. Case law remains key in assessing the admissibility of such proof under the standards recited in Rule 2:702 as a codification of the general principles.

[Page 1007]

D. Rule 2:703. Rule 2:703 (basis of expert testimony) reiterates and restates Va. Code § 8.01-401.1 allowing an expert to offer testimony based on the information with which he or she was provided. The basis of the information need not be admissible in evidence if it is "of a type normally relied upon by others in the particular field of expertise." This is the long standing basis for the reliance by experts upon hearsay.

Rule 2:703 preserves the prior distinction between civil and criminal proceedings on the important issue of whether all material on which the expert relies must be admitted (or admissible) in the trial.

E. Rule 2:704. Rule 2:704 preserves the duality, and to some extent the unreality, of existing Virginia practice on the so-called "ultimate opinion rule," barring such opinions in criminal cases but purporting to allow such opinions in civil cases.

In criminal cases this doctrine is straightforward, if a bit particularized. A fairly stable body of case law has limned the situations in which ultimate opinions are barred.

In civil cases there is still something of a disconnect in Virginia practice in that the General Assembly adopted Va. Code § 8.01-401.3(B) and (C), the anti-ultimate-opinion statutory provisions that are now reflected in Rule 2:704(A), but in practice there is still considerable limitation on conclusory testimony in Virginia.

One doctrine that appears to survive in the face of both the Va. Code provision cited and the rules of evidence, and which is used to negate the impact of the statute now set forth in Rule 2:704(a), is the concept that the province of the jury may not be "invaded" by opinion testimony. Thus, reported case law and myriad trial-level rulings appear to exclude...