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Kelly v. Levandoski4/18/2005
etcetera, and what he normally does as it relates to preparing a case for trial.
Mr. Braje can also testify as to what he does and what he considers to be the standard practice to hire people to assist as experts, and how he enters into agreements with those people.
Mr. Braje may not testify as to his opinion as to whether or not the right person has been sued.
Mr. Braje may not testify as to his interpretation of Exhibit G [the contingency fee agreement between Kelly and the Browns]. The reason for that is the testimony of Mr. Kelly that that agreement is put into common language that ordinary people can understand. Therefore, we do not need an expert to interpret that agreement.
The Court stands in its rulings that Mr. Braje may not testify as to the elements of the contract. He may not testify as to agency, and the other matters that deal with what his opinion as to whether there is or is not a contract, that invades the province of the jury. All of Mr. Braje's opinions as to what the law is, and the Court has extremely high regard for Mr. Braje, are accurate. Those are jury instructions. They're to be given to the jury, that's the Court's function.
(Appellant's App. at 150-51.)
Ind. Evidence Rule 704 provides:
(a) Testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.
(b) Witnesses may not testify to opinions concerning intent, guilt or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
Regarding that rule, we recently explained:
We are cognizant of the trend to allow expert opinion testimony even on the ultimate issue of the case, so long as the testimony concerns matters which are not within the common knowledge and experience of ordinary persons and will aid the trier of fact. . . .
We remain of the opinion, however, that experts should not be permitted to offer legal conclusions as part of their testimony because to do so would violate the spirit of Evidence Rule 704(b), which provides that " itnesses may not testify to opinions concerning . . . legal conclusions." The purpose of the rule is that legal conclusions from a witness are not helpful to the trier of fact; the judge, not an expert witness, instructs on the law.
Vaughn v. Daniels Co. (West Virginia), Inc., 777 N.E.2d 1110, 1122-123 (Ind. Ct. App. 2003) (internal quotations and citations omitted), transfer pending, clarified on reh'g on unrelated matter 782 N.E.2d 1062 (Ind. Ct. App. 2003).
The first three topics about which Kelly wished Braje to testify were: (1) the elements of a contract; (2) case law regarding contracts, including Boesch v. Jones; and (3) the legal concept of agency. Those topics, as the trial court held, are topics about which the court, and not a witness, should inform the jury. See Vaughn, 777 N.E.2d at 1123 ("the judge, not an expert witness, instructs on the law"). Kelly's expert witness should not have been permitted to explain those topics to the jury.
The other four topics about which Kelly wanted Braje to testify included Braje's opinions whether a contract existed between Kelly and Levandoski, whether Levandoski failed to mitigate his damages, whether Levandoski sued the right party, and about the impact of the contingency fee arrangement between Kelly and the Browns. Whether a set of facts establishes a contract is a question of law. Wallem, 725 N.E.2d at 883. Accordingly, Braje's opinion about the existence of a contract would hav
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