Joy Banner brought this suit against Defendants Michael Wright, St. John the Baptist Parish, and Jaclyn Hotard (collectively “Defendants”) alleging violations of her First Amendment right to freedom of speech during a St. John the Baptist Parish council meeting.
Richard Stanley, an attorney-expert, has been hired by Defendants to opine about “whether a person could reasonably believe that a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications.” Banner alleged that she was only allowed to speak for five seconds before she was interrupted by Defendant Parish President Jaclyn Hotard and then by Defendant Chairman Michael Wright. Plaintiff filed a motion to exclude Stanley’s testimony.
Wright recited Louisiana Revised Statute § 42:1141.4(L)(1) which provided that:
“It shall be a misdemeanor, punishable by a fine of not more than two thousand dollars or imprisonment for not more than one year, or both, for any member of the Board of Ethics, its executive secretary, other employee, or any other person, other than the person who is subject to the investigation or complaint, to make public the testimony taken at a private investigation or private hearing of the Board of Ethics or to make any public statement or give out any information concerning a private investigation or private hearing of the Board of Ethics without the written request of the public servant or other person investigated.”
Banner alleged that the Defendants threatened her with criminal sanctions based on the content of her speech. According to Banner, the law they threatened her with had been long ruled unconstitutional – both facially and as applied.
Law And Legal Expert Witness
Richard C. Stanley represents clients throughout Louisiana and the surrounding region in complex commercial litigation and in the representation of lawyers and law firms in connection with issues of ethics and professional liability.
He handles cases in both state and federal courts at the trial and appellate levels. His clients include two of Louisiana’s largest electric utilities (Entergy and Cleco), as well as numerous out-of-state clients with litigation in Louisiana. He has been recognized as Lawyer of the Year by Best Lawyers in America in multiple categories, including Bet-The-Company Litigation (2019), Real Estate Litigation (2020), Legal Malpractice Law – Defense (2014, 2016, 2018) and Antitrust (2012, 2015).
Discussion by the Court
Plaintiff argued that Stanley’s expert testimony should be excluded from trial because (1) Stanley is offering a legal opinion which is in the province of the judge; (2) Stanley’s opinions are irrelevant; and (3) Stanley conceded that he could only opine as to what a reasonable lawyer would do, not a non-lawyer. In opposition, Defendants argued that Stanley did not intend to offer legal opinions, rather he plans to testify as to the reasonable standard of care of an attorney.
A. Plaintiff’s Argument in Support of the Motion
Plaintiff contended that Stanley is a partner at the law firm Stanley Reuter Alford Owen Munson & Paul, LLC, a firm that has represented Saint John the Baptist Parish.
First, Plaintiff argued that Stanley’s testimony should be excluded because his opinion is a legal opinion, and explaining the law to the jury is the province of the judge, not an expert witness.
Plaintiff contended that Stanley’s methodology includes legal analysis, which an expert witness is prohibited from offering at trial.
Next, Plaintiff argued that Stanley’s testimony should be excluded because it was irrelevant. Plaintiff stated that the statute Stanley has been asked to interpret was found unconstitutional “as applied” and on its face. Plaintiff contended that Stanley’s opinions are about the reasonableness of a “person who is either advised by a lawyer or who has the equivalent information as if they were advised by a lawyer.”
Lastly, Plaintiff contended that Stanley’s testimony should be excluded because he testified that he could only opine as to what a reasonable lawyer would do, not a reasonable non-lawyer.
B. Defendants’ Argument in Opposition to the Motion
Defendants contended that Stanley’s testimony is not a legal opinion, rather Stanley intended to testify regarding the standard of care of a reasonable lawyer because a reasonable lay person, even without the advice of counsel, would have no reason to conclude that Louisiana Revised Statute § 42:1141.4(L)(1) is unconstitutional in all applications.
While Plaintiff argued that Stanley’s testimony should be excluded because the standard of care on which he bases his opinion is that of a lawyer, Defendant contended that the standard of care of an lawyer is higher than the standard of care of lay person.
Defendants conceded that neither Wright nor Hotard are lawyers, and Stanley’s expert opinion is that their actions at the Council meeting did not fall below the reasonable standard of care under the circumstances. Defendants asserted that Plaintiff has not attempted to challenge the constitutionality of the underlying statute.
C. Plaintiff’s Argument in Further Support of the Motion
Plaintiff asserted that neither Hotard nor Wright are attorneys, and this Court has excluded an advice-of-counsel defense. Moreover, this case does not involve negligence or malpractice wherein “standard of care” is an element of the claim. Plaintiff averred that Defendants have not offered any authority that requires a showing of a “standard of care” in a First Amendment case.
Analysis
This Court reviewed Stanley’s expert report and found that it clearly invaded the province of the Court to instruct the jury on any applicable law. In his report, Stanley opined that it was reasonable for a lawyer to believe a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications. In addressing Plaintiff’s First Amendment claim, the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.” Consequently, Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder. This Court cannot allow Stanley’s opinion as it runs afoul of the Federal Rules of Evidence.
Further, the Court found that Stanley’s testimony was irrelevant. Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer. Even without Stanley’s opinion, the jury may hear testimony from fact witnesses and consider said testimony alongside the jury instructions regarding the applicable law and make their own determination of whether Defendants’ assumptions and actions were reasonable.
Held
The Court granted Plaintiff’s motion to exclude Defendants’ attorney-expert Richard Stanley under Daubert.
Key Takeaways:
- Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder because the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.”
- Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer.
In conclusion, being a lawyer does not disqualify one as an expert witness. Lawyers may testify as to legal matters when those matters involve questions of fact. However, there is only one legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.
Case Details:
| Case Caption: | Banner V. Wright Et Al |
| Docket Number: | 2:23cv7296 |
| Court: | United States District Court, Louisiana Eastern |
| Order Date: | January 15, 2025 |
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