Depp V. Heard and Expert Witnesses
This last week we saw Amber Heard’s witnesses and most of them appeared via video as opposed to live at trial. This is becoming more common in a post Covid world but is difficult to present trial strategy wise. When your witness appears live you get to ask questions based on testimony that has been elicited live at trial as opposed to having only the fixed testimony from depositions that happened months or years prior to the trial date. We also saw a lot of expert testimony in Heard’s case. The use of witnesses is governed by the rules of evidence. The rules of evidence in Oklahoma are based on the Federal Rules of Evidence and are really standardized across jurisdictions.
Witnesses are either “fact witnesses” or “expert witnesses.” A fact witness is someone who testifies regarding the facts of the situation at issue in trial. A fact witness testifies about things that they have direct knowledge of because they saw or participated in the circumstances of the lawsuit. A fact witness is extremely limited in their ability to offer opinions, their testimony is pretty much limited to “just the facts ma’am!” A fact witness can only offer opinions which are 1) rationally based on their perceptions, 2) helpful to understanding their testimony or determination of fact at issue, and 3) not based on scientific, technical or specialized knowledge. In Depp v. Heard it would be proper for a fact witness to testify “In my opinion Ms. Heard looked scared when the phone was thrown.” You could not testify “In my opinion Ms. Heard looked scared when the phone was thrown because she has a history of trauma that dates back to childhood and her romantic relationship with Johnny Depp triggered her male oriented repressed trauma.” This statement is not reasonably based on the perceptions and its based on scientific, technical, or specialized knowledge.
When scientific, technical or specialized knowledge will assist a judge or jury to understand or weigh evidence then an expert is appropriate. An expert witness must be qualified by way of their knowledge, skill, experience, training, or education to offer opinion testimony. For example I am an attorney that has been practicing law for nearly 20 years. I have given expert testimony about the amount of attorney’s fees and the time spent on cases to perform certain tasks on numerous occasions. I am qualified based on my knowledge, education and experience to testify on these subjects in relation to areas of law that I practice in throughout the state of Oklahoma. I can reasonably testify in regard to civil litigation, family law matters, personal injury, civil rights, and employment cases because I routinely practice in these areas. I’m not qualified to testify on these subjects in the area of worker’s compensation or mass tort litigation because I do not practice in those areas.
To offer expert testimony your testimony must be based on sufficient facts or data, based on reliable principles and methods that are applied reliably to the facts of the case. In my attorney fee example that would involve discussing my years of experience practicing certain kinds of cases, the complexity of the case, the location where the case was, and the experience level of the attorney.
Experts are also able to testify to matters those other witnesses cannot. In the Depp case we’ve had a lot of objections based on hearsay. Hearsay is an out of court statement offered for the truth of the matter asserted. There are a lot of exceptions to the hearsay rule, one of which involves having the person who made the statement available for trial and calling them as a witness. Because experts do not have firsthand knowledge of the events, they have to rely on what others say to reach a conclusion. A reliable expert should consider evidence from both sides, take into account any bias of the witnesses, and look at documentary evidence as well as conduct appropriate research.
Experts are also paid their professional rates while fact witnesses are paid the statutory appearance fee which in statutorily is $10 plus mileage. As an attorney fee expert, I am paid my hourly rate for my time spent on the case. Experts are paid for their time they are not paid for their testimony. If the expert’s opinion is based on the payment that is not the kind of expert that should be used in a case. I have seen juries turn their back on expert witnesses they thought were lying and testifying strictly based upon who was paying their bill. A good expert in my opinion testifies for both plaintiffs and defendants and their opinions remain consistent, they don’t change with the wind and who is paying them. There are those kinds of experts and most people in the legal field know who they are and avoid them.
Experts are also allowed to testify on the “ultimate issue of fact.” This means that an expert can testify whether someone is at fault in an accident or whether a criminal defendant acted intentionally. More often than not a judge will not let them testify on the ultimate issue but will let them testify to all but their final conclusions.
In Depp vs Heard we saw experts who testified about the psychological condition of Ms. Heard, the financial condition of both actors, industry professionals who help actors secure work and others. Interestingly, while we heard from Mr. Depp’s treating physicians about his mental health and substance abuse, we never heard from an expert witness on these subjects about Mr. Depp. Had I been presenting this case from either side, I would have retained an expert to evaluate and testify about Mr. Depp just as both sides did to evaluate Ms. Heard. Domestic abuse, personality disorders, and addiction are complex conditions individually and combined are volatile. An expert on this subject would have been helpful and informative to the jury and on trial strategy. As I said at the beginning I suspect this case will be dissected by legal profession for years to come. It had a lot of good and bad lawyering and the use of experts or the lack of use will come up again in my opinion.