Two lawyers were identified as witnesses to testify in a Wisconsin Third-Party Bad Faith case. One of the two lawyers was identified as an Expert Witness by the Plaintiff Policyholder. He was not allowed to testify. The Court noted that this lawyer came into Court with "impressive legal experience". The Court stated that it had no doubt that the proferred Expert "is well qualified to provide an opinion on issues of coverage." Therein lies the rub, however. "[H]is opinion is on purely legal issues and provides his subjective legal conclusions." Cousins Submarines, Inc. v. Federal Insurance Co., 2013 WL 494163 *13 (E.D. Wis. February 8, 2013).
When the Court ruled that this Expert could not offer his Opinions on legal conclusions, the Court in this case left little doubt who has that job:
The Court is perfectly able to analyze the law applicable to the claims in this case and the underlying claims in the prior action; it does not need a separate expert providing what is essentially a separate legal brief to make its legal determinations, here. However, the Court having decided the bad faith issue without the assistance of [the proferred Expert's] brief, and the Court granting summary judgment to Federal on that issue, the Court will deny Federal's motion to exclude [the proferred Expert's] opinion (Docket # 46) as moot.
Cousins Submarines, Inc. v. Federal Insurance Co., 2013 WL 494163 *13 (E.D. Wis. February 8, 2013).
The second of the two lawyers fared better than the first did, at least in terms of being permitted to testify. The other lawyer represented the Plaintiff Policyholder in the underlying action. The second lawyer "offers his beliefs as to the reasons [that the Plaintiff] settled the prior action." The Liability Carrier filed a Motion to Strike this lawyer's Affidavit "as offering improper expert testimony." The Court declined the opportunity and denied the Motion to Strike.
The Court expressly disagreed that the second lawyer's Affidavit is really an Expert Report. The second lawyer in this case "is better classified as a fact witness. Granted, there is a very thin line between the testimony offered by [the second lawyer] and that offered by [the first lawyer]: both witnesses' testimony relies on subjective legal conclusions." The testimony which the second lawyer was in a position to give, however, "derives from his position as an attorney in the prior action. At that time, he was able to gather impressions about the prior action. He now offers testimony regarding the conclusions he reached at that time. To the Court, this seems to be much closer to a fact witness than to an individual offered as an expert." Cousins Submarines, Inc. v. Federal Insurance Co., 2013 WL 494163 *14 (E.D. Wis. February 8, 2013). [Emphasis added.]
When legal conclusions became a matter of fact, this Court allowed evidence of them, a ruling which some would consider discerning or even courageous in the factual context of this particular case. When legal conclusions were matters of opinion, this Court followed the universal rule and disallowed them totally.
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