What Kind of Witness Are You?

My post on Friday brought up a topic that I'd like to explore with you further - the difference between a fact and an expert witness.  Under our parenting coordination rules, a parent coordinator is a fact witness.  That custody evaluator I wrote about - expert witness.  Your child's teacher - fact witness, but also maybe expert.  Your doctor - maybe fact and maybe expert.  Oh my goodness!  What's the difference? 

Let's start with the simple differences.  A fact witness may only testify to the things they saw, said, tasted, smelled, and felt.  They can't say what someone other than a party (that's the Plaintiff or the Defendant) said.  In other words, they may only talk about facts.  They cannot give an opinion.  They may not draw conclusions from what was said, seen, tasted, smelled or felt.  So, in the case of a parenting coordinator, they can talk about what they saw concerning the interactions between the parents, they can describe whether someone appeared angry or sad or happy, they can talk about their communications with the parents (assuming the parents are the Plaintiff and the Defendant).  They cannot say whether they think one parent was right or wrong.  They can't say whether one parent was acting just to get the other one's goat.  They can't say whether one parent or another is mentally ill.  To quote Joe Friday from "Dragnet," "Just the facts, ma'am."

An expert witness is someone who is qualified because of their education or experience to draw conclusions from the facts.  So, they observe the facts and can testify about them.  They can then draw conclusions from those facts, based on their education and experience.  Our custody evaluator may see all the same things as the parenting coordinator, but because of their designated role in the case, they can draw conclusions from the facts.   They are permitted to testify to their opinions and conclusions.

Sometimes, the same person can be either a fact or an expert witness.  Sometimes a teacher is a fact witness when they observe how a child is doing in school, if the child seems out of sorts on one day as opposed to another, whether the child is paying attention, clean, or hungry.  Some teachers have more training or specialized education than others, and their knowledge of how children learn, child development or special education; those teachers could also testify as an expert witness even though they are also the child's classroom teacher.  The same thing with doctors.  A doctor can be someone's treating physician, and only their treating physician, or they can have enough knowledge and training to be deemed an expert and give their opinion based on their observations.

Wow, this is confusing, and I'm a lawyer.  Why is it we think clients will understand the difference?  Yet, in almost every set of interrogatories I send or receive, clients are asked to identify all expert witnesses and in another question, to identify all fact witnesses.  Most clients don't get it right, and can you blame them?  I think I'll just give them this blog.  Here in the Trenches.