Evan L. Goldman, Esq. | Goldman, Davis Krumholz & Dillon Hackensack N.J.
While employment cases normally do not lend themselves to a great deal of expert testimony, we all have cases in which expert testimony is used both to support economic claims and emotional distress claims.
Attorneys who try employment cases, unlike those who try personal injury (products liability/medical malpractice/slip and fall) are not necessarily used to calling experts in every case. Therefore it is important for plaintiffs attorneys in Employment Cases to understand the law regarding experts, especially when confronted with objections from defense counsel. In many cases the objections are baseless, but unless one fully understands the law re: expert testimony, and is able to counter these objections, it could negatively affect the case.
Unfortunately, many Judges also do not adequately understand the law re: experts and are often “swayed” by the arguments made by defense counsel. Whereas in the past many judges came from the ranks of trial attorneys, this is less and less the case and in fact many Judges in front of whom we now appear never tried a case before a jury whether it be civil and/or criminal.
As a result, if it extremely important to understand the law re: expert testimony.
Rule 701.
If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness’ testimony or in determining a fact in issue.
Comment:
As we know, it is permissible for a plaintiff in an employment case to testify as to non permanent emotional distress suffered as a result of either a hostile work environment, wrongful termination and or discrimination claim. While this should be common knowledge for most attorneys and judges, there is no question that there are some judges in this state who when trying an employment case will try to prevent a plaintiff from testifying as to their own emotional distress.
This Rule makes it clear (in addition to case law) that it is permissible for a lay person to testify as to emotional distress suffered in the work place, as long as they are not claiming that the emotional distress suffered is permanent in nature.
It is important to know this Rule (and also to have the Rules of Evidence with you when trying a case).
Rule 702. Testimony by Experts
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.
There are three basic requirements for the admission of expert testimony:
- The intended testimony must concern a subject matter that is beyond the knowledge of the average juror;
- The field testified to must be at a state of the art that such an expert’s testimony could be sufficiently reliable; and
- The witness must have sufficient expertise to offer the intended testimony
While this rule should not pose an issue for most practitioners and Judges, it is still important to be knowledgeable of this basic concept.
Rule 703. Bases of Opinion Testimony By Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
The above rule mirrors that of the Federal Rule of the same number. This rule became part of our rules in 1982. Prior to that time, and without this rule, it was possible as a defendant to object to an expert’s testimony since information that he relied upon (and which was well known in a particular field) was objected to as “hearsay” or claimed to be lacking a proper foundation.
It is extremely important that you are aware of this rule. Often, a defendant will attempt to prohibit an expert opinion as the expert is relying on a treatise or known fact that experts in the field always rely upon. However, defendants will stand up and claim that it is hearsay. Unfortunately, most judges will simply accept the argument made by defense counsel unless of course you have the law in front of you.
However, it is important to note that even the results of generally reliable and accepted scientific tests should not be regarded as conclusive evidence. See. R.K. v. Dept. of Human Services, 215 N.J. Super 342 (App. Div. 1987). In other words, even if an expert provides backup for his/her opinion, this does not mean that a jury “must” accept this as conclusive evidence. A juror is allowed to accept or reject an expert opinion, just the same as a juror can accept or reject any testimony by any witness. This Rule does allow the expert to not have to establish the accuracy of the scientific tests that he relies upon. It is sufficient if the tests or data he/she relies upon is of the type normally relied upon by experts in the field.
So, even if two experts agree on a certain thing, this does not mean that it “proves” the case or that it “must be accepted”.
For example, lets assume that in an employment case, an economist testifies as to the potential lost wages by a plaintiff. Even if the economist is not cross examined and even if the opinion of the expert is not “contested” by defense counsel, this does not mean that the jury has to accept his ultimate opinion. It is for the jury to accept or reject his/her conclusion.
But, simply because a plaintiffs expert may not be relying upon something already in evidence, does not mean that he/she cannot provide opinion testimony simply because what the expert is relying upon is not already in evidence.
Therefore, when confronted with Expert Testimony it is important to:
- Bring the Evidence Rules into Court.
- Know the Rules of Evidence.
- If an objection is made by defense counsel, ask, in front of the Judge, what the defense is basing his/her objection on and ask the adversary to provide the rule that he/she is relying upon
- Make sure that Defense Counsel cites specific rule and/or case that he/she is relying upon for the objection.
- Often Courts will simply accept the defense objection because it sounds “good”. Good does not cut it. It has to be legally based.
- Do not be concerned about the Court getting angry at you for pressing for the reasons behind the objection. You have a client to protect and a record to protect. Even if the Court does not accept your reasoning at the time, come in the next day loaded with law and make sure that the Court permits you to place your full reasoning on the record. While Judges may be unhappy about, they will almost always let you made the record (even if they do not accept your reasoning).
REBUTTAL TESTIMONY
While not often used, it is important to fully understand when one can use rebuttal testimony. Unfortunately, Courts, in their haste conclude a trial, often to not permit rebuttal testimony when in fact it should be permitted.
A Court has considerable discretion in determining when to permit rebuttal testimony, at least where the objection to the proferred testimony is based on the
Rules of Evidence rather than on Constitutional grounds. State v. James, 144 N.J. 438 (1996).
While the court has great discretion, many of the reported decisions involving rebuttal testimony have reversed trial court’s refusal to allow in rebuttal testimony. See Weiss v. Goldfar, 295 N.J. Super 212 (App. Div. 1996) rev’d on other grounds 154 N.J. 468, (1998) and Casino Dev. Auth. V. Lustgarten, 332 N.J. super 472 (App. Div.) Cert denied 165 N.J. 607 (2000).
The point is again that if you feel that rebuttal testimony is necessary in a case, make sure that you have the case law in front of you to argue in favor of the rebuttal testimony.
In 2015, I was involved in a hotly contested employment trial. There was only one witness that could counter one of the allegations of the employee of the defendant (it was a wrongful termination/discrimination case). The witness could not be located for a period of time, although she apparently still worked for the defendant. I was finally able to serve her with a subpoena during the middle of the trial. I spoke to her and she was willing to come to court and testify as to certain facts.
The plaintiff’s case was already over and the case was nearing an end (although the defense was still putting on their case). I immediately advised that court that as soon as the defense was finished with its case (that same morning) I was prepared to bring in rebuttal testimony to counter a statement made by one of the defense witnesses (it was arguably an important fact). The Court was pushing for the case to be over with and had already told the Jury when they could expect to hear the case. The Court felt that my bringing in this witness was going to further delay the trial (it was not) and refused to allow me this rebuttal witness.
The point is that if you feel that it is necessary to bring in rebuttal testimony be prepared for some push back especially from the Court. While the Court does have great discretion, it is usually easier for the Court to permit the rebuttal testimony rather than to exclude it. Remember, Judges do not like being reversed! !
Be prepared with the Law and make a record if in fact the Court is not inclined to permit your rebuttal testimony.