Opinion testimony by lay witnesses in divorce litigation

In divorce litigation, like civil litigation in general, opinion testimony is not limited to experts. Lay witnesses, especially the parties to a divorce case, may testify with respect to the valuation of real and personal property despite a lack of expertise. Rule 701 of the Maine Rules of Evidence provides that:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

For example, in State v. Patton, 2012 ME 101, ¶¶ 20–22, 50 A.3d 544, a victim was allowed to testify about a defendant’s use of hypnosis and its effect on her “because the testimony was largely factual, based on [her] personal knowledge, and aided the jury in understanding [her] perception of her relationship with [the defendant].” In general civil litigation, as long as it is predicated on personal knowledge, lay witnesses can testify to the speed of an automobile. State v. Berube, 669 A.2d 170, 172 (Me. 1995); an opinion regarding intoxication, Stacy v. Portland Publ’g Co., 68 Me. 279, 285 (1878); and an opinion in such matters as quantity, weight, size, heat and cold, age, sickness, and health. Field & Murray at § 701.1.

In divorce litigation, Rule 701 is the basis for a party to testify as to the value of marital and nonmarital property. See Wandishin v. Wandishin, 2009 ME 73, ¶ 13, 976 A.2d 949; Garland v. Roy, 2009 ME 86, ¶ 21, 976 A.3d 940. Likewise, a party may testify as to the value of personal property despite his or her lack of expertise. See Cushman v. Cushman, 495 A.2d 330, 335 (Me. 1985).

In divorce litigation, the dictates of Rule 701 are applied with some flexibility. Judges often expect to hear opinion testimony from the parties with respect to valuation and other issues. The tendency is to admit the opinion, even when of dubious value, as the judges believe that they have the training or experience to disregard lay opinions they do not find convincing or reasonable. See Levy at § 7.7.

This article is the third installment in a series providing general information about the use of expert testimony and opinion testimony in divorce litigation.  The entire Chapter regarding the Use of Experts in Divorce Litigation was published by MCLE New England in February of this year:  A Practical Guide to Divorce in Maine.  The next installment in this series will discuss the admissibility of expert opinion testimony. The Guide is available for purchase at the MCLE New England website at www.mcle.org.

The author of this article, Gene R. Libby, is a founding partner of Libby O’Brien Kingsley & Champion, LLC.  Gene is a highly experienced trial lawyer who practices primarily in the areas of family law, civil litigation and criminal defense.

Gene R. Libby

Gene R. Libby

Gene has a rich history of litigation experience over the last 30 years. He has tried over 100 civil and criminal jury cases to verdict. His practice focuses on a wide variety of civil and criminal litigation representing individuals and small businesses, including divorce, real estate disputes, small business litigation, elder law, personal injury, professional… Read more »