Article
The (Overlooked) Consequence of Easing the Prohibition of Expert Legal Testimony in Professional Negligence Claims
Brandeis Law Journal
(2009)
Abstract
Many believe that the prohibition of expert legal testimony has no place in modern evidence law, and, increasingly, courts allow experts to testify to legal conclusions as long as the jury is able to understand the legal concepts at issue. Within the professional negligence context, however, the easing of the prohibition muddles the distinction between common law negligence and negligence per se. Without the prohibition, an expert can testify that a legally established professional standard exists even though only the court has the ability to decide whether a law provides the basis for negligence per se. This consequence, assumedly overlooked, both illustrates the need to maintain the prohibition and reinforces that, regardless of whether the jury can understand it, expert legal testimony should remain inadmissible. Specific to professional negligence claims, if the source of the proposed professional standard is based in law, expert testimony on that standard is inadmissible.
Keywords
- expert legal testimony,
- professional negligence,
- negligence per se
Disciplines
Publication Date
2009
Citation Information
Jill W Lens. "The (Overlooked) Consequence of Easing the Prohibition of Expert Legal Testimony in Professional Negligence Claims" Brandeis Law Journal Vol. 48 (2009) p. 53 Available at: http://works.bepress.com/jill-lens/6/