Recently I wanted to find out more about use of expert testimony to resolve contract ambiguity. (Remember, ambiguity arises when a contract provision is capable of expressing two or more inconsistent meanings.) So I consulted Walter R. Lancaster & Damian D. Capozzola, Expert Witnesses in Civil Trials. I learned that “it remains a basis for objection [to expert testimony] that the testimony amounts to a legal conclusion.” And I found the following case note:
A linguistics expert who had a Ph.D. in English and ten years experience as an editor could not testify that two provisions in the deed at issue created an inherent ambiguity, since the threshold issue as to whether a deed is ambiguous is a question of law. Phillips v. Harris, 643 So. 2d 974 (Ala. 1994).
And Williston on Contracts § 30:5 confirms that “determination of whether a contract is ambiguous is a question of law for the court.” It goes on as follows (citations omitted):
Under the prevailing, more expansive view of what the court may consider, the court does not simply determine whether, from its perspective, the contractual language is clear; rather, the court hears the proffer of the parties and determines if there are objective indicia that, from the parties’ linguistic reference point, the contract’s terms are susceptible of different meanings. The court must consider the words of the agreement, including writings made a part of the contract by annexation or reference, the alternative meanings suggested by counsel, and any extrinsic evidence offered in support of those meanings. Extrinsic evidence properly considered in deciding whether the contract is ambiguous may include the structure of the contract, the parties’ relative positions and bargaining power, the bargaining history, whether one of the parties prepared the instrument, so that the language should be construed most strongly against it, and any conduct of the parties which reflects their understanding of the contract’s meaning.
So counsel may suggest alternative meanings, but no mention of expert testimony.
And once contract language has been deemed ambiguous, expert testimony is admissible, but only as to the technical meaning of contract language. Here’s what Am. Jur. Expert and Opinion Evidence § 354 has to say (citations omitted):
Generally, unless the words or phrases as used in a writing which is the subject of controversy are terms of art, science, or trade, or there is something to show that they were not used in their ordinary and plain meaning, opinion testimony to interpret the language is not admissible. The view has been followed that the construction of unambiguous contract terms is strictly a judicial function, and that the opinions of percipient or expert witnesses regarding the meanings of contractual provisions are irrelevant and hence inadmissible. Furthermore, there is authority in some jurisdictions to the effect that experts may not testify as to the meaning of a legal term. On the other hand, the view has also been followed that where words have an unusual meaning or application in a particular occupation or trade, persons familiar with that occupation or trade may testify to the meaning of the words, although it is within the discretion of the trial court to determine whether it needs assistance in understanding the evidence. Thus, for example, witnesses with the appropriate background and qualifications have been permitted to give opinions as to the meaning and interpretation of such words and phrases as—
— “structural alterations.”
— “prima facie.”
— “new senior secured debt.”
— “diggable.”
So the prevailing orthodoxy is that (1) no expert testimony of any kind is admissible for purposes of determining whether contract language is ambiguous and (2) in the case of contract language that isn’t ambiguous, expert testimony is admissible only for purposes of determining technical meaning.
I have two problems with inadmissibility of expert testimony for determining whether contract language is ambiguous.
First, determining whether language—a word such as “diggable”—is ambiguous requires the same kind of analysis as is required to determining which of any alternative meanings of “diggable” the parties intended. See Williston on Contracts §30:4 (noting that “the interpretation of a contract requires an initial determination of whether the contract is ambiguous, either as written or as a result of an ambiguity arising during performance of agreement, and this determination itself involves an assessment of the contract’s meaning”). It seems inescapable that if expert testimony regarding technical matters is admissible for purposes of the latter, it should be admissible for purposes of the former.
Second, it’s conclusory to say that whether contract language is ambiguous is always a question of law. Because ambiguity is a question of semantics, it follows that it’s amenable to elucidation through expert testimony. Just because a judge drives a car, that doesn’t make the judge an expert in automobile engineering. Similarly, the fact that a judge speaks and writes English doesn’t mean the judge is wise to the many ways that ambiguity can manifest itself in contracts.
Recently I posted this item about a Texas court’s uncertain grasp of syntactic ambiguity. I could dredge up plenty of other such cases.
Perhaps one reason why courts have been unwilling to admit expert testimony on ambiguity is that they attribute to ambiguity all uncertainty in contract language. In fact, uncertainty in contract language can be attributed to various sources, only one of them being ambiguity; see MSCD chapter 6 and this blog post. As compared with ambiguity, the other sources of uncertainty—undue generality, inconsistency, redundancy, conflict, and vagueness—are generally easier to spot.
Given that counsel can argue that contract language is ambiguous, I’m not sure of the practical effect of the bar on expert testimony. I assume that counsel could always retain an expert, then submit to the court, as if they were counsel’s, the expert’s arguments regarding ambiguity. (I’d appreciate the input of someone who, unlike me, knows something about civil procedure.)
Perhaps the main effect of the bar on expert testimony is to make it easier for judges to feel complacent about their grasp of ambiguity.
Ken, by way of analogy, you might be interested in some of the Federal Circuit jurisprudence about the use of expert testimony (and other extrinsic evidence) to construe terms in patents, especially in patent claims, from the perspective of “those of ordinary skill in the art.”
Ken, interesting blog. As Walter Lancaster and I discuss in the treatise in more detail, this is a fuzzy area and the cases are often difficult to reconcile.
Ken:
My dad once had an English professor at the Univeristy of Texas testify about the effect of a comma in a statute. The case turned on the meaning of the comma. I think it was a question of whether the clause in question was restrictive or not. I’ll have to ask him about it.
Chris
I’m sympathetic to the need for expert testimony, but not overly so, particularly when suggestions from counsel and judicial notice can inform rulings on questions of law.
Expert testimony is the biggest single line item of litigation expenses other than attorneys’ fees in most cases. A judge has some expert qualifications (as an experienced lawyer, at least), yet is free and, ex ante when the contract is being drafted anyway, neutral.
Allowing or denying expert and non-expert testimony on the ambiguity of contract clauses greatly ups the ante very early in litigation when other facts may be mostly uncontested, and while contract claims include the biggest dollar cases, they also include hordes of very small dollar cases (tort cases tend to have high damages, but rarely the highest damages in single transactions).
Ambiguity typically comes up at motion to dismiss or motion for summary judgment stages in a case. So, allowing a hearing to get testimony on something not available via judicial notice, can turn a $2,000 motion case into a $12,000 hearing case. Contract law doctrine is carefully scuplted to avoid just such evidentiary disputes.