Last week, I discussed the basic rules about expert and non-expert opinions with reference to the George Zimmerman trial. By an interesting coincidence, only a few days before that writing, a federal appellate court in California issued an opinion approving non-expert testimony in a manner that might reduce the cost of litigation in some circumstances.
Matt Strong sued a restaurant near San Diego for violating the Americans with Disabilities Act. Strong is quadriplegic, and he claimed the restaurant and parking lot were not properly laid out to allow him sufficient access.
Unfortunately, Strong’s lawyer made a mistake in procedure. In federal court, experts have to be disclosed to the other side before a specified deadline. Strong’s lawyer missed the deadline. (This may also happen in some parts of Washington, depending on whether there are rules in a particular county. Oregon not only doesn’t require pretrial expert disclosure, it doesn’t even allow the other side to ask.)
The restaurant tried to take advantage of the mistake by filing a motion to end the case before the trial, arguing that without an expert, Strong couldn’t prove his case. Strong responded by signing a declaration (an unsworn substitute for an affidavit) that included the measurements by his expert and his observations of the absence of disabled seating and similar problems.
In a motion for to end the case before trial, the party opposing the motion (usually the plaintiff) only has to show that he or she can present enough evidence that a jury might, if it believed the evidence and was properly instructed as to the law, rule for him or her. That evidence, however, has to be based on the personal knowledge of the witness signing the affidavit or declaration. The trial court thought that Strong didn’t have personal knowledge of the expert’s measurements and conclusions, and disregarded his declaration in ruling for the restaurant.
When Strong appealed, the appellate court pointed out that Strong’s declaration referred to “the barriers that I encountered,” which it thought was enough to say that he had personal knowledge of the conditions at the restaurant. Strong’s declaration also stated that he went to the restaurant with the expert to measure and photograph the conditions, that the purpose of the measurements was to document what he had already found, and described the equipment used by the expert to make the measurements. (One judge of the three disagreed, on the grounds that because the expert read off the measurements, Strong didn’t actually see the results.)
The court also noted that rough observations of size, weight, duration, and the like, were opinions that non-expert witnesses have long been allowed to testify to. As a result, the court ruled for Strong, noting that his observations were of the kind that he could testify about, and sent the case back for trial.
There are cases that experts aren’t necessary, and the court ruled that this was one of them. If you have a case that you think you or other witnesses can give enough evidence without using an expert, discuss it with your lawyer. Sometimes the lawyer will agree; sometimes the lawyer won’t.