Know the difference between factual testimony and opinion testimony

Posted May 17th, 2016.

Categories: Custody Tips, Family Law.

testimony mark s guralnick

As a general rule, witnesses can only testify to facts of which they have personal knowledge. They cannot give their personal opinions. Only a qualified expert witness can testify as to an opinion. Thus, an attorney could question a non-expert witness as to what he observed your ex-spouse doing around the children on a particular occasion, but he could not ask him whether he believes, in his opinion, that your ex-spouse is a fit parent or good parent or emotionally well-adjusted. Such opinions are best left to expert witnesses, such as a psychiatrist, a psychologist or a social worker.

Despite this general rule, there are some useful ways to get “opinions” out of non-expert witnesses, without facing an objection in court. For example, a witness such as a school teacher,a pastor, or family friend could be asked to testify about her observations of the parent in question. Such a witness could testify as to a parent’s demeanor, physical appearance, actions, language and speech patterns. She could tell what she sees or hears from your ex-spouse, detailing his or her conduct on a particular occasion, and what impressions she may have formed. For example, she might testify that your ex had slurred speech and bloodshot eyes, while she was caring for the children on a particular occasion, that she smelled of alcohol and was having difficulty maintaining her balance. Even if she gave the opinion that your ex was “drunk” on the date in question, it would likely not be considered an expert opinion but rather only a reasonable impression or observation the witness drew based on all of the obvious telltale signs.

Be careful. Do not depend on non-expert witnesses to give the key opinions in the case. While factual testimony by friends, neighbors, teachers and clergymen may lead to inevitable conclusions about one party or another, they are not professional expert opinions. A judge may not permit even the most observant witness to testify as to whether one parent or the other should have custody of the children. Such an opinion may, in fact, be relegated to experts only.

It is, therefore, useful to cultivate the best witness testimony you can from your non-experts. But weigh what they will say in court, and ask yourself whether an expert witness will also be necessary to carry the day. The double-punch of good factual testimony from your non-expert witnesses, and good opinion evidence from the expert witnesses, will have the greatest impact on the outcome of your custody case.

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