Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER VIII: OPINIONS, SCIENTIFIC PROOF, AND EXPERT TESTIMONY
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B. Law Opinions (766)

Marx & Co., v. Diners Club, Inc., 550 F.2d 505 (2d Cir. 1977) (824)


This is an extremely curious opinion. The court states the general rule that expert witnesses may testify to foreign, but not to domestic law. What is remarkable is the forthrightness with which the court states its justification for the rule: "The danger is that the jury may think that the "expert" in the particular branch of the law knows more than the judge -- surely an inadmissible inference in our system of law." (646)

The court also asserts that it must be especially careful not to allow trials before juries to become battles of paid advocates "joining as experts on the respective sides concerning matters of domestic law." This, of course, describes what the courts have allowed to happen with respect to every subject other than domestic law.

The court concludes that Friedman's testimony was highly prejudicial to the Diner's Club, but at no point suggests that what Friedman said was wrong.

If Friedman's testimony was consistent with the trial judge's view of the law, (and there is nothing in the opinion to suggest that it was not), then the only "prejudice" would seem to be some destruction of the myth that judges -- and only judges -- are all-knowing on matters of law. The most interesting question for class discussion presented by this case is whether preservation of the myth of the all-knowing judge is an interest of legitimate judicial concern, and if so, why? In this connection, see the related questions raised by Frye (829).

 

Problem - Wolfman's Law (769)

The point:

Expert testimony on some matters of domestic law may confirm or enhance the authority of the trial judge, not diminish it; and may greatly assist the jury in understanding the case. But it also raises serious questions of efficiency and institutional role and competence.

Answer and analysis:

When Professor Wolfman testified on direct, he referred on numerous occasions to a page of notes that consisted of phrases and numbers. Crossexamining counsel asked to see the piece of paper, then could not resist asking Wolfman what the numbers signified. Wolfman responded that they were page references to his book on taxation, which he was then able to produce and show to the jury with great effect!

Sharp v. Coopers & Lybrand was affirmed on appeal, 649 F.2d 175 (3d Cir. 1981), without attention to the propriety of Professor Wolfman's testimony.

Although most jurisdictions are reluctant to admit expert testimony on domestic law, such testimony is routinely received on foreign law, or specialized areas of the law which are not within the court's general ken. In some states expert testimony is received on such subjects as corporate, finance, or commercial law. In

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