Expert Excess—When Expert Testimony Is Superfluous

/in

by C. Jean Stewart

From May 1995 through June 2011 I served as Presiding Judge of the Denver Probate Court. Lawyers occasionally complained when I asked them not to burden me with expert witness testimony on a matter of fiduciary fees or legal fees, citing CRE 702 as not contributing to my experience or knowledge on the topic. Often, under CRE 703 the opinion was not properly supported. While I understood their desire to dazzle me with their expert's opinion about the fairness and reasonableness of their upstanding client's proposed fee or, alternatively, about the outrageously excessive fee being siphoned off of the estate or trust by the unscrupulous fiduciary and his/her scumbag accountants and attorneys, I often stood pat on my original ruling that expert evidence would not be heard on the issue because it did not provide "scientific, technical, or other specialized knowledge that I thought would assist me in understanding the evidence or determining a fact in issue." CRE 702

Once or twice I had occasion to rule on a case with facts that I thought might form an excellent appellate case so that my approach could be challenged (and hopefully supported by the prevailing side). It never came to be so Colorado does not have a good appellate opinion on the point.

Recently, I read several Michigan appellate cases (one unpublished) that summarize the issue and state my views succinctly.

The probate court excluded the expert testimony from evidence, finding that the testimony was not properly admitted in accordance with MRE 703. Barron Trust v. Barron, 2013 WL 275913 (Mich.App.) at FN 2, p. 2. [not a published opinion]

The Michigan Court of Appeals has addressed this issue previously and has concluded that

". . . the probate court could adequately evaluate the reasonableness of appellant's fiduciary fee in accordance with the pertinent factors enumerated in Comerica, 179 Mich. App at 724, especially in light of the court's extensive experience and knowledge in evaluating such matters. Thacker, 137 Mich. App at 258. Id.

Obviously, Michigan, where there are numerous specialized probate courts, is not Colorado. It is heartening, however, to see that I was not perched upon a particularly slender reed when I addressed contested fiduciary and legal fees without the use of expert testimony.