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  • A FEW FOLLOW-UP POINTS CONCERNING EXPERT WITNEESES—PART TWO OF TWO PARTS

    In the last issue of the Almaden Times you addressed my question about expert witnesses and said that was part one of two parts. Thank you for that and now I am wondering about those other issues involving expert witnesses.
    /s/ Angie A.
    Almaden Valley
    Dear Angie—
    Thank you for emailing in again, Angie. I will see if I can cover such things as opinion evidence from expert witnesses, exclusion of certain opinion evidence, and related issues for you and our other Almaden Times readers.
    By way of introduction to this topic, in part one we discussed basic qualifications needed to qualify one as an expert witness, the right of cross-examination, compensation of experts being revealed to the jury, and other issues.
    Generally speaking, opinions of experts are covered in part by California Evidence Code §801, et seq. Basically, if a witness is testifying as an expert, his or her testimony in the form of an opinion is authorized but is limited to such an opinion as is:
    (a) Related to a subject that is sufficiently beyond common experience that the opinion of any expert would assist the trier of fact; and
    (b) Based on matter (including his or her special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him or her at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his or her testimony relates, unless an expert is precluded by law from using such matter as a basis for his or her opinion.
    You can see that in many different types of cases that opinions of experts might be helpful to the judge or jury in deciding the case, such as medical malpractice cases, legal malpractice cases, product defect cases, and others.
    Are the reasons for the expert opinion important? I would say that most often the answer is a definite “yes”. In fact, California Evidence §802 states that a witness testifying in the form an opinion may state on direct examination the reasons for his or her opinion and the matter (including, in the case of an expert, his or her special knowledge, skill, experience, training, and education) upon which it is based, unless he or she is precluded by law from using such reasons or matter as a basis for his or opinion.
    The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his or opinion is based.
    Is there any safeguards as to keeping out of evidence improper opinions? You bet there is, since California Evidence Code §803 provides that the court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such a case, the witness may, if there remains a proper basis for his or her opinion, then state his or her opinion after excluding from consideration the matter determined to be improper.
    There are special rules as to opinion testimony that relate to the value of property, both real estate and tangible personal property. Experts can offer their opinions as to such property as well as the owner or the spouse of the owner of the property or property interest being valued, under California Evidence Code §813.
    Once again, Almaden Times readers can review the cited provisions by themselves by inserting the particular California Evidence Code number in their computer browsers. It makes for very interesting reading. Of course, laws vary from state to state and in our federal system, so a particular California provision may be a little different in other jurisdictions.

    Donald J. DeVries
    Almaden Valley

    You can reach Mr. DeVries with your questions by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries Law Office at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your name will not be used. No attorney-client relationship is created by these articles.

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