In commercial litigation, it is a common occurrence for a company to nominate one of their employees as a witness to provide testimony on the design, capabilities, and features of the company’s products or services. Generally, such a witness provides statements as a factual witness founded on their personal knowledge under Federal Rule of Evidence 602, instead of as an expert witness offering opinion-based testimony as per Federal Rule of Evidence 702.
This standpoint means that the witness can offer first-hand information about the company’s products or services without the necessity for additional certification as a subject matter expert.
While this approach works well in most cases, complications can arise when the boundaries between factual and opinion testimony become blurred. This blending can occur when the witness is asked to provide testimony extending beyond the realm of their personal knowledge and into the domain of product-specific attributes or capabilities which they may not have a complete understanding of.
These complex scenarios require thoughtful consideration to ensure that the evidence presented is credible, relevant, and in compliance with the rules of evidence. The ultimate goal is to provide the company with the best chances of success in their litigation endeavors.
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