Your friendly neighborhood technology counsel here: The Indiana Supreme Court recently discussed the ability of a lay witness to provide "expert" opinions in Sibbing v. Cave, 922 N.E.2d 594 (Ind. 2010). In that case, counsel asked the plaintiff what she believed caused her pain. She responded something to the effect of "the bulging disc in my lower back", and the opposing party objected based on a lack of expert foundation. The basic argument to the trial court was that this lay person cannot provide a medical diagnosis of what caused her pain because she wasn't an expert. The Supreme Court, upholding the trial court, found that a recitation of one's personal belief regarding a fact (in this case, the source of her pain) was within the scope of Indiana Evidence Rule 701.
I can read your minds at this point of my blog. You are thinking, "What in the heck does this have to do with technology litigation, SaaS litigation, software litigation, or any of the stuff that you normally discuss?" The important point of this case is that it can be used to get to "expert" type opinions from a lay person. This is important in tech lit because most of our technology clients have some knowledge as to the x's and o's of what is happening behind the scenes of a given situation or product, but they don't necessarily have enough expertise to survive a full-blown Daubert challenge to their status as an expert. Using Sibbing, a tech litigator (i.e. me) can now ask the straight forward question of "why do you think the widget broke" or "how do you think this SaaS agreement harms your company" or "what do you think your damages are" and allow our clients to spout their opinions, and in the face of a challenge, cite this precedential case. As you can imagine, the potential of this ruling is huge.
Additionally, for those really interested in law-dorking out [yes, I made up that word, so what], there is also a good analysis in Sibbing of the use of the medical diagnosis exception to the hearsay rule found in IRE 803(4) that distinguishes the previously held standard set forth in Coffey v. Coffey, 649 N.E.2d 1074. Not overly important in tech lit, but a good read for any litigator.
I can read your minds at this point of my blog. You are thinking, "What in the heck does this have to do with technology litigation, SaaS litigation, software litigation, or any of the stuff that you normally discuss?" The important point of this case is that it can be used to get to "expert" type opinions from a lay person. This is important in tech lit because most of our technology clients have some knowledge as to the x's and o's of what is happening behind the scenes of a given situation or product, but they don't necessarily have enough expertise to survive a full-blown Daubert challenge to their status as an expert. Using Sibbing, a tech litigator (i.e. me) can now ask the straight forward question of "why do you think the widget broke" or "how do you think this SaaS agreement harms your company" or "what do you think your damages are" and allow our clients to spout their opinions, and in the face of a challenge, cite this precedential case. As you can imagine, the potential of this ruling is huge.
Additionally, for those really interested in law-dorking out [yes, I made up that word, so what], there is also a good analysis in Sibbing of the use of the medical diagnosis exception to the hearsay rule found in IRE 803(4) that distinguishes the previously held standard set forth in Coffey v. Coffey, 649 N.E.2d 1074. Not overly important in tech lit, but a good read for any litigator.
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