Jun 14

Firm Asks Supreme Court to Resolve Split of Authority on Expert Testimony


Washington, DC, June 13, 2014 – Clinton Brook and Peed, in collaboration with former Solicitor General Seth Waxman (counsel of record) and his team at WilmerHale, filed a petition for certiorari with the United States Supreme Court on behalf of Anthony Cuti, the former CEO of Duane Reade, Inc. The petition asks the Supreme Court to hear Mr. Cuti’s case and reverse a decision by the Second Circuit Court of Appeals that affirmed Mr. Cuti’s 2010 conviction for securities fraud. The petition explains:

“Federal Rule of Evidence 701(c) precludes admission of lay opinion testimony based on “technical[] or other specialized knowledge.” In this securities fraud prosecution, the government represented that it would call no expert witnesses, but then called two accountants as lay witnesses and elicited detailed opinion testimony—including answers to hypothetical accounting questions—to show what they believed the proper accounting treatment under Generally Accepted Accounting Principles should have been. Although this testimony was unquestionably based on “technical[] or other specialized knowledge,” the court of appeals ruled it admissible without need for compliance with Federal Rule of Evidence 702 or Federal Rule of Criminal Procedure 16 because it was supposedly “factual testimony” and not “rooted exclusively” in the witness’s specialized knowledge. App. 10a-11a. The courts of appeals are divided on the admissibility of lay testimony that is based on specialized knowledge.

“The question presented is:

“Whether a witness may give opinion testimony based in part on specialized knowledge and in part on personal experience, including answering counterfactual hypothetical questions, without satisfying the reliability and disclosure requirements for expert testimony of Federal Rule of Evidence 702, Federal Rule of Criminal Procedure 16, and/or Federal Rule of Civil Procedure 26.”

A complete copy of the petition is available here: Cuti v. United States — Cert. Petition with Appendix

Brian C. Brook, who also manages the Firm’s New York practice, has represented Mr. Cuti since 2008, including serving as lead counsel on Mr. Cuti’s appeal to the Second Circuit. Mr. Waxman entered an appearance shortly after the Second Circuit issued its decision. Also involved in drafting the petition for certiorari were Ryan Bates in Austin and Matthew Peed in DC, as well as Mark Fleming and Brook Hopkins of WilmerHale’s Boston office.