In Uncategorized on 05/16/2022 at 16:33

So many expert witness jousts involve mixed questions of fact and law. And expert knowledge is essential in sorting out facts so as to make them intelligible to the trier of fact. But the judge decides when the expert has stepped out of bounds, to expound the law, or worse, to advocate. Here Judge Mark V. Holmes, summarizing in CFM Insurance Inc., et al, Docket No 10703-19, filed 5/16/22.

Judge Holmes has some thoughts that bring a grin to my battered visage.

“We began by agreeing with petitioner that it is correct that there is a fairly hard rule that expert testimony about domestic law is generally not admissible. This rule is usually accompanied by the line that ‘testimony about the law does not assist the court.’ Judges may pretend this is so, but in their hearts they know that many of the lawyers and sometimes even the witnesses who appear before them know much more about the law than they do.

“The rule would be a weak one if it was helpfulness in reaching the correct result that we focused on. But the rule would be a strong one if we focused on the difference between findings of fact and conclusions of law. Courts mostly serve as human lie detectors in evaluating testimony — they ask if the witness broke down on cross, engaged in self-contradiction, or told an incoherent story. Judges are not supposed to conduct private investigations outside the record into the facts of a case. But in reaching a legal conclusion, a judge is less constrained. He is able to consult his own resources and expertise, and looks to the advocates who appear before him for help in where to look. We expect lawyers to zealously advocate for their clients; we’re suspicious of witnesses who do so.” Order, at p. 1-2.

IRS was looking to eviscerate the petitioner’s expert’s report. Judge Holmes only cuts off a couple sentences. And this is as good a statement of the principles as I’ve seen.


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