Limits on Attorney-expert Opinions in Jury Trials Under C.r.e. 403, 702, and 704

• Publication year: 2002
• Pages: 53
• Citation: Vol. 31 No. 2 Pg. 53

31 Colo.Law. 53 Colorado Lawyer 2002.

2002, March, Pg. 53. Limits on Attorney-Expert Opinions in Jury Trials Under C.R.E. 403, 702, and 704

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Vol. 31, No. 2, Pg. 53

The Colorado Lawyer
March 2002
Vol. 31, No. 3 [Page 53]

Specialty Law Columns
Civil Evidence
Limits on Attorney-Expert Opinions in Jury Trials Under C.R.E. 403, 702, and 704
by Elizabeth A. González

Q: May a trial court properly prohibit a party from introducing expert testimony from an attorney about the law governing the case or the law's application to the facts of the case

A: Generally, yes. In balancing the goals of C.R.E. 403, 702 and 704, a court has discretion to prohibit an attorney-expert's testimony where such testimony may confuse the jury, waste time, or usurp the judge or jury's respective roles

Assumed Facts

Penelope Peso ("Penelope") has sued Dangerous Driver ("DD") under several tort theories, including negligence. Penelope submitted an expert witness report by Antonio Abogado ("Expert Abogado"), a well-known and nationally respected attorney. The report indicates that Expert Abogado will testify regarding the applicable negligence standard and whether DD's conduct met that standard.

DD's counsel files a motion in limine to exclude Expert Abogado's testimony. DD argues that if the court allows the testimony, it also should permit DD to introduce his own attorney-expert to opine on these same issues. How should the court rule on DD's motion?

Discussion

The purpose of expert witness testimony is to assist the jury in understanding the facts and determining the issues in the case.1 A trial court has broad discretion to determine the admissibility of expert witness testimony.2 C.R.E. 702 and 704 specify the factors the court should consider in allowing an expert witness to testify. C.R.E. 702 provides:

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.

C.R.E. 704 states further, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."

The Colorado Court of Appeals discussed the admissibility of...