Legal Opinion as Expert Testimony?


In the case of Garrett Bean v Minerva Alcorta (2015 US Dist. LEXIS 88874), the question arose as to whether legal opinion amounted to an expert opinion. The Court upheld previous decisions of the Fifth Circuit Court in holding that legal opinion did not count as expert opinion. The Court also discussed whether it required an expert to determine bullet trajectories from the gunshot wounds. It held in the affirmative that retracing bullet trajectories to pinpoint the location of the shooter required skill which would bring it under the ambit of Rule 702 of the Federal Rules of Evidence as a specialized skill requiring an expert witness to be admissible.


The father of the plaintiffs in this case, Gary Bean, died of injuries sustained from a gunshot wound to his arm and chest. The Medical Examiner’s Office termed the death as homicide. The relevant police report also stated that an unidentified woman had told a patrolling officer that she had shot her boyfriend dead. Soon after the death of Gary Bean, the Defendant was indicted in a suit for manslaughter. Gary Bean had many benefits arising out his employment one of which was life insurance coverage. The Plaintiffs in this case contested that the Defendant had forfeited her rights to the proceeds paid out of the life insurance policy because she had wilfully caused the death of the policy holder. In such a case, the Plaintiffs contended that the proceeds should flow to them as contingent beneficiaries of the policy.


There were two main points of discussion in this case with regards to the role of expert witnesses. Firstly, the Court considered whether the testimony of the criminal defense attorney for the Plaintiff in the manslaughter case mentioned previously, could be considered as evidence provided by an expert. The main contention was whether the legal opinion of the defense attorney, Charles Bunk, was an expert opinion. He had stated that in his professional opinion he did not think that the Defendant was capable of a crime such as manslaughter and thus should be allowed to collect the proceeds from the life insurance policy. The Court held that notwithstanding the fact that Charles Bunk was not designated as an expert witness, legal opinion could not be counted as expert opinion. The Fifth Circuit Court in BNY Mellon v Affordable Housing Inc. (2011 U.S. Dist. LEXIS 75135) held that the legal opinions are not expert testimony because they do not ‘assist the trier of the fact in understanding the evidence’. In that case, the Fifth Circuit Court in Owen v Kerr-McGee Corp [698 F.2d, 236, 240 (5th Cir. 1983)] that allowing legal opinion which extracts inferences from evidence to be admitted as expert testimony would invade the domain of the court in question. In this case, the Court upheld the above cases and also held that since Charles Bunk uses his professional expertise to give his opinion, his testimony could not be admitted as lay testimony either under Rule 701 of the Federal Rules of Evidence. Thus the legal opinion was held to be inadmissible.

In the second part of the discussion, the Court considered whether it required an expert’s opinion to retrace the trajectory of the bullets causing a gunshot wound in order to ascertain the position of the shooter. Under Rule 702 of the Federal Rules of Evidence, the Defendant objected to the admission of the evidence relating to the trajectory of bullets as inadmissible expert testimony. Under Rule 702, expert testimony requires scientific, technical or specialized knowledge. The Plaintiffs argued that the evidence did not require expert testimony but rather an application of common sense to the facts. The Court considered the cases on this point and held that understanding the trajectory of bullets required some degree of specialized knowledge which would come under the ambit of Rule 702. The Court upheld Hathaway v Bazany [507 F.3d 312 (5th Cir. 2007)] and McGrath v Tavarey [757 F.3d 20, 26-27 ( 1st Cir. 2014)] to the extent that they held that without expert testimony it is difficult to rely on the finding about the position of the shooter.