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Lay Opinion Testimony Under FRE 701: Admission and Exclusion Challenges

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, January 22, 2020

Recorded event now available

or call 1-800-926-7926

This CLE course will educate counsel as to the nuances of Federal Rule of Evidence 701, which attempts to define the parameters of admissible opinion evidence from lay witnesses. Trial lawyers who understand Rule 701 can use this powerful tool to expand the testimony of their own witnesses and restrict the testimony of opposing witnesses.


Rule 701's three-part test for the admissibility of lay opinion witnesses confounds even the most seasoned trial lawyers. When a witness offers an opinion, opposing counsel objects almost reflexively. Knowing how to respond to that objection can mean the difference between victory and defeat.

A lay witness may testify as to an opinion if the opinion is within the witness' perception, is helpful to the jury's understanding, and does not constitute expert testimony. Some opinions, such as "the car was going fast," can be easily placed within the confines of the rule. Business valuation, however, while seemingly within the rule, presents thorny issues regarding the future value, as opposed to present worth.

These tensions become even more evident when testimony admitted under the Rule is then used to support a contention that prohibits speculation, such as damages. In those instances, the interplay between Rule 701 and Rule 702 (expert opinions) is at the forefront.

Listen as this seasoned panel of trial lawyers examines the intricate ins and outs of Rule 701 and provides in-depth guidance to how it can be used to admit helpful and exclude harmful evidence.



  1. Separating opinion from fact testimony
  2. The requirements of Rule 701
    1. Rationally based on the witness' perception
    2. Helpful to clearly understanding the witness' testimony
    3. Helpful to clearly understanding or to determining a fact in issue
    4. Interplay with Rule 702
  3. Rule 701 opinions vs. imperssible speculation


The panel will review these and other essential matters:

  • Situations in which lay witnesses can offer opinions
  • Advantages and disadvantages of lay opinion testimony
  • Technical aspects of admitting and excluding lay opinion testimony


Berlage, Jan
Jan I. Berlage

Gohn Hankey & Berlage

Mr. Berlage’s practice focuses on general business litigation ranging from commercial disputes to bankruptcy to...  |  Read More

Thomas A. Kantas
Thomas A. Kantas

Law Office of Thomas A. Kantas

Mr. Kantas has worked on sophisticated auto collision cases, construction accidents, product liability litigation and...  |  Read More

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