I was watching a LeagleEagle YouTube episode where the host assesses how well legal issues have been represented in various media.
In this link he considers how well Joe Pesci and Marisa Tomei do in the movie “My Cousin Vinny” when Pesci asks Tomei for her advice on what is going on. (The video is queued to the right spot watch about two minutes.)
The lawyer notes that, toward the end of that exchange, Tomei asserts fact when she is actually asserting an opinion.
But we know from earlier Tomei is voir dired to establish her expertise.
So, did she give opinion or fact? And, if opinion, does her opinion carry more weight legally (not with the jury but with judges on appeal) than me giving a literal non-expert opinion?
IANAL, but I’d say when she is talking about available options, colors, and what posi-traction is, she is testifying to fact, since those things are verifiable.
That particular exchange is possibly opinion, because I guess she can’t actually know if the car had had it’s transmission changed out or maybe there was some weird transmission problem that led to the tire tracks observed. Note that in addition to not being a lawyer, I’m also not any kind of auto expert so know idea if either of those two things are possible.
Bird Law is my specialty, but based on what I know about general law the judge accepted her as an expert witness. She gave an expert opinion. which may contain facts.
In and of itself, IIRC, that would be opinion, or at the very least, not easily verifiable that it was a Tempest and not some other car. But in the next part of her testimony she explains that only one other car would look even remotely similar to that one and come from the factory in mint green and had the power to do that.
It seems to me the part of her testimony that would be opinion is that the Skylark could never be confused with a Corvette. Sure, maybe not to most people but plenty of people aren’t car people and wouldn’t know a corvette if it was parked in their living room.
In the context of the exchange, she’s really being asked if she’s testifying as a fact witness or an expert witness. Did she observe something (fact witness) or did she figure something out (opinion testimony). She’s says “it’s a fact,” but what is really an expert opinion that she has 100% confidence in.
An expert can testify, for example, that a car was traveling 24.5 mph at the time it hit a pedestrian. The expert didn’t observe the car traveling at that speed, but figured it out based on education, training, and experience. That makes it opinion testimony. Experts are allowed to give opinions. (and lay people too, sometimes)
I don’t know if the court can deem something to be fact. Another expert could provide an opinion that is in direct contradiction. It’s just that what we may objectively believe to be ‘fact’ is still elicited from an expert as opinion. A stipulation may be closest thing to a fact to be considered in a trial. IIRC, expert witness testimony can be rejected by the jury on the basis of credibility, and the jury may disregard all of an expert’s testimony if they find any part of it is not credible (though they don’t have to).
I’d be interested to hear from regular lawyers whether anything is considered a ‘fact’ in a trial. Unfortunately the low entry requirements to practice Bird Law aren’t adequate for me to provide a better answer.
So, if I was an astronomer (I am not) and testified that a solar eclipse happened on a given day in the past, but I was not there to actually witness it, have I rendered an opinion or a fact?
(Assume the eclipse did, in fact, happen.)
For argument’s sake let’s say the eclipse was 500 years ago so no one alive can attest to it as a witness.
Facts are generally up to the jury to determine. They are told that certain things, like stipulations, are to be considered established facts. Sometimes the judge will instruct the jury to consider other things conclusively established. The court could take judicial notice of a fact and instruct the jury about that. As a simple example, “the complaint in this case was filed on June 10, 2018.”
Also, a party could prevail on a motion for partial summary judgment. Perhaps liability of the defendant was established, and the judge would instruct the jury not to speculate about the cause of the accident, it has been determined to be the defendant’s fault, and the jury is only to determine damages.
Legally, the jury determines the facts based on the testimony of the witnesses. Even if a “fact witness” says “the light was red,” a jury could determine it was actually green.
IANAL but I did watch the same Legal Eagle video last night. My impression is that an expert witness is given more leeway to give opinion testimony because both sides agree that their education, experience, and specific knowledge gives them greater insight than a layperson. Their opinion carries more weight than a random witness on the street.
But there is still a difference between testimony that can be verified by measurement or citation (fact) and one that relies on interpretation and conclusion (opinion). The length of the tire tracks is a fact. Determining what kind of car could make those tire tracks is an informed opinion.
Well, if the opposing lawyer questions your expertise, you can say “Don’t take my word for it. Look it up. By the way, you’ll find it in Jane’s Big Book of Eclipses, Volume XVI, page 285, published by the Acme Astronomer’s Union.”