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Georgia Rules of Evidence on Opinions of Market Value
In Court or Administrative Hearings Such As Property
Tax Appeals
Jon M Ripans, J.D., M.B.A. Finance
Attorney, Appraiser, Arbitrator/Mediator
The Ripans Law Firm, LLC & Valuation Matters, LLC
Atlanta, Georgia
Direct Dial: (404) 993-9467 ripanslaw@gmail.com
http://www.linkedin.com/in/jonripans
couple years ago, I was asked to look into the issue of property tax representatives
providing opinions of market value in property tax hearings. There are a couple of
layers to this issue. First, some jurisdictions have tighter rules than others about
who can provide opinions of value either as a witness in court or as an appraiser.
Second, different jurisdictions have property tax appeals systems that vary widely.
As I a most familiar with Georgia, I will use it as an example. The information provided
here may not accurately state the law in your jurisdiction. Indeed, it is not intended to be
legal advice in any jurisdiction, including Georgia, but merely a discussion that illustrates the
relevant issues.
Short Answer: In the federal system, Georgia, and the courts of most states, opinion
testimony is usually the province of experts, but opinions of market value get treated more
like other perceptions about which non-expert, laypersons may testify. The focus is not so
much on the status of the witness as an expert, non-expert, or – in the notes to the Federal
Rules of Evidence – a “skilled” witness, but the type of opinion being offered into evidence
and whether the witness had an adequate opportunity to form a correct opinion.
When this article was first written, Georgia had adopted a new evidence code – largely
patterned after the Federal Rules of Evidence (“Fed. R. Evid.” or “F.R.E.”) – that had yet to
take effect on January 1, 2013.i
This article touched on opinion evidence in federal courts to
provide a preview of the changes then coming to Georgia opinion evidence and predicted
“not too much change. Opinion evidence of value under the new Georgia evidence code
will operate pretty much along the lines as the existing code and cases.”
That prediction has come true so far. Since 2012, the appellate courts in Georgia have
issued two opinions most on point under the new Georgia evidence code patterned after the
Federal Rules of Evidence. Neither opinion has changed the law. See In re Estate of Hubert,
750 S.E.2d 511 (Ga. App., 2013) (specifically mentioning the change in the Georgia evidence
code) and Mason Logging Co. v. Gen. Elec. Capital Corp., 322 Ga.App. 708, 746 S.E.2d 180 (Ga.
App., 2013) (holding that credible lay opinion evidence can stave off summary judgment)(“
(stating “Under former OCGA § 24–9–66, which was in effect at the time of the trial,
‘[d]irect testimony as to market value is in the nature of opinion evidence. One need not be
A

2. Page ii of x
an expert or dealer in the article in question but may testify to its value if he has had an
opportunity for forming a correct opinion.’ (A similar rule is found in Georgia's new
evidence code at OCGA § 24–7–701(b).)”).
Introduction
The primary purpose of the rules of evidence is to regulate the evidence that a jury may hear
so that it is not swayed by evidence that is unreliable, irrelevant, or relevant but is far more
inflammatory and prejudicial than it is probative.ii
The strictest rules of evidence apply, not surprisingly in jury trials. So, it is useful to look
first at what the courts have had to say about opinion of value evidence in trial courts with
juries, and then move on to talking about bench trials, arbitrators, hearing officers, and,
boards of equalization. Again, the focus is on Georgia, by way of example. The exact rules
in other states may vary.
Without further introduction, here are the broad concepts when it comes to opinion
evidence of value in jury trials, and then we will talk about less strict environments.
Evidence Jury Trials – Steps in Vetting Evidence
Generally speaking, the strictest rules of evidence would apply in jury trials because a jury of
laypersons, not trained in the subject of the dispute or in the rules of evidence can be tainted
by bad evidence.
If you take nothing else away from this article, the single most important point to remember
is that there is a key difference between admissibility of evidence versus the weight and credibility
that should be given to that evidence by the “trier of fact,” be it a jury, judge without a jury,
arbitrator, special master, etc.
Step 1: Admissibility – Relevance vs. Unfair Surprise, Inflammatory,
More Prejudicial than Probative.
The threshold for admissibility is fairly low. In Holowiak v. the State, 308 Ga. App. 887, 709
S.E.2d 39, 11 FCDR 1222 (2011), the Georgia Court of Appeals recently wrote:
Unless the potential for prejudice substantially outweighs probative value,
Georgia law favors the admission of relevant evidence, no matter how slight
its probative value.” (Punctuation and footnote omitted.) State v. Adams, 270
Ga. App. 878, 881(2), 609 S.E.2d 378 (2004). Evidence is relevant if it tends
to prove or to disprove a material fact at issue, and every act or circumstance
which serves to explain or throw light upon a material issue is relevant. See
Sailor v. State, 265 Ga. App. 645, 648(2), 595 S.E.2d 335 (2004).
Id. at 308 Ga. App. 887, 889, and at 709 S.E.2d. 42.

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O.C.G.A. Section 24-2-1 provides: “Evidence must relate to the questions being tried by the
jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.”
Step 2: Who may testify as to what?
In general, there are two types of witnesses, expert witnesses and fact witnesses. Fact
witnesses may only testify as to facts that they know from first-hand observation or
knowledge. Almost everything else is hearsay or speculation (except for some things that are
deemed by law to be “non-hearsay” and others that are deemed by law to fall under
exceptions to hearsay). Expert witnesses, on the other hand, have much broader latitude in
the testimony that they can provide, once they have been tendered as experts by the party
seeking to introduce their testimony and admitted by the court as an expert. Expert
witnesses can state opinions, can use hypotheticals, and can even use hearsay evidence to
support their opinions as long as it is the type of hearsay that is ordinarily used by experts in
the type of analysis being provided in court.iii
Step 2 – Part A: Expert Witnesses
"Experts" are a unique type of witness under the law. There are so many different things in
this world at which one could be an expert, that neither the federal rules of evidence, nor the
current Georgia evidence code is able to give a tight definition of “expert witness.”
Essentially, an "expert" is simply an individual who possesses knowledge-beyond that of an
average juror-on an issue that is relevant in a particular case.
In some fields, such as those involving science and technology, be it physics, chemistry,
engineering, biology, medicine, etc. – an expert has to meet the demands of three important
cases from the United States Supreme Court (plus any additional requirements imposed
under the federal or state rules of evidence at issue). For those of you who are not attorneys,
it is very rare to see a statute reference a court case, yet the Georgia General Assembly even
codified the following language in O.C.G.A Section 24-9-67.1:
“It is the intent of the legislature that, in all civil cases, the courts of the State
of Georgia not be viewed as open to expert evidence that would not be
admissible in other states. Therefore, in interpreting and applying this Code
section, the courts of this state may draw from the opinions of the United
States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co.
Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts
applying the standards announced by the United States Supreme Court in
these cases.”
Id. at Subsection (f). The Georgia Court of Appeals has ruled that this code section permits,
but does not require, Georgia courts to follow U.S. Supreme Court and other cases under
the federal rules of evidence. Hamilton-King v. HNTB Georgia, Inc., 296 Ga. App. 864, 676
S.E.2d 287 (2009).
Unlike fact witnesses, expert witnesses are permitted to testify based upon matters not
within their personal knowledge (including that which is normally excluded as hearsay), may
testify as to opinions or inferences derived from a set of facts, and those opinions and
inferences may even include opinions on the issue to be ultimately decided by a jury.

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Clearly, the strongest example of an expert when it comes to opinions of value is an
appraiser, but American law in general, and current Georgia law in particular, makes it very
clear that opinions of value are less like scientific and technical determinations in the
disciplines mentioned above, and more like those categories of matters that non-expert, or
lay, witnesses have traditionally been allowed to offer an opinion into evidence, such as “the
appearance of persons or things, identity, the manner of conduct, competency of a person,
degrees of light or darkness, sound, size, weight, distance, and an endless number of items
that cannot be described factually in words apart from inferences.” Asplundh Mfg. Div. v.
Benton Harbor Eng'g, 57 F.3d 1190, 1196 (3d Cir. 1995).
Step 2 – Part B: Opinions of Market Value
Opinions of market value receive a more favorable reception than most other “opinions as
fact” under the evidentiary laws of Georgia, the Federal Rules of Evidence, and most of the
other states. The original advisory committee notes to Federal Rule of Evidence 702 –
Testimony by Expert Witnesses explained:
“The rule is broadly phrased. The fields of knowledge which may be drawn
upon are not limited merely to the ‘scientific’ and ‘technical’ but extend to all
‘specialized’ knowledge. Similarly, the expert is viewed, not in a narrow sense,
but as a person qualified by ‘knowledge, skill, experience, training or
education.’ Thus within the scope of the rule are not only experts in the
strictest sense of the word, e.g., physicians, physicists, and architects, but also
the large group sometimes called ‘skilled’ witnesses, such as bankers or
landowners testifying to land values.”
Id. at Advisory Committee Notes to 1972 Federal Rules of Evidence (emphasis added). The
advisory committee notes to the 1987 amendment to the federal rules of evidence are a little
more explicit:
“For example, most courts have permitted the owner or officer of a business
to testify to the value or projected profits of the business, without the
necessity of qualifying the witness as an accountant, appraiser, or similar
expert. See, e.g., Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993)
(no abuse of discretion in permitting the plaintiff's owner to give lay opinion
testimony as to damages, as it was based on his knowledge and participation
in the day-to-day affairs of the business). Such opinion testimony is admitted
not because of experience, training or specialized knowledge within the realm
of an expert, but because of the particularized knowledge that the witness has
by virtue of his or her position in the business.”
Id. at Advisory Committee Notes to 1987 Amendment to the Federal Rules of Evidence.
But Georgia (and Alabama are even more explicit).iv
Until January 1, 2013, when Georgia’s
new evidence code patterned after the federal rules of evidence take effect, Georgia has a
statute that specifically addresses the admissibility of opinions of value:
Section 24-9-66 Opinions on market value

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Direct testimony as to market value is in the nature of opinion evidence.
One need not be an expert or dealer in the article in question but may testify
as to its value if he has had an opportunity for forming a correct opinion.
Official Code of Georgia Annotated (O.C.G.A.) Section 24-9-66. So, Georgia states that
opinions of value may be provided in court by persons who are not experts or dealers in the
article in question, be it land, buildings, jewelry, cars, specialized machinery, etc., so long as
the person offering the opinion has had an opportunity to form a correct opinion.
In almost all states, it appears that owners are given a certain deference under the law, at least
when it comes to the admissibility of their opinions of value. The reasoning is that the
person has more intimate knowledge of the property than anyone else. [The policy may be
that it is not “American” to take someone’s property in eminent domain or in a marital or
business property settlement, without at least giving that person an opportunity to state his
or her opinion of value.]. But, O.C.G.A. Section 24-9-66 does not limit itself to owners of
property, and the case law in Georgia clearly backs this up.
In Georgia, the reported cases demonstrate that two non-expert witnesses (who appear to be
non-owners) were allowed to give opinions of value because of their general knowledge of land
values in the area, lengthy experience in the construction industry, and familiarity with the
subject property. See City of Dalton v. Smith, 210 Ga. App. 858, 437 S.E.2d 827 (1993).
In another Georgia case, the son of the condemnee in an eminent domain taking was allowed
to testify as to value. This is important because the son was not an owner, and there are
cases in other jurisdictions that have held that it was wrong to allow into evidence the
opinion even of a non-owner spouse who has lived on the property.
The Georgia case is DeKalb County v. Queen, 135 Ga. App. 307, 217 S.E.2d 624 (1975). In
Queen, “the condemnee's son, testified that he 'would give $50,000.00 for (the property).'”
The Georgia Court of Appeals held:
[t]his testimony was admissible as nonexpert opinion evidence as to value,
provided the witness had an opportunity to form a correct opinion as to
value. Here the witness testified that he had been a building contractor, was
familiar with houses and the value of property, and was particularly familiar
with the house and property in question. This testimony shows adequate
opportunity to form his opinion as to the value of the property and the
opinion is sufficient to support the verdict. His relationship to the
condemnee and the sufficiency of his observation of the property affect only
the weight to be given his opinion by the jury.
Id. at 135 Ga. App. 307, 308, 217 S.E.2d 624, 626.
In Wilson v. Wilson, 596 S.E.2d 392, 277 Ga. 801 (1904), one divorcing spouse claimed that it
was error for the trial court to exclude the opinion of a real estate agent as to the value of
certain property. The Supreme Court of Georgia agreed, and wrote:
The trial court ruled that "[the real estate agent] is not qualified as an expert
in the field of real estate [277 Ga. 806] appraisal and he can't give an opinion
of the value." However, a lack of expertise as an appraiser "went merely to

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the weight of his testimony and not the admissibility of his testimony."
Prestley Mill Professional Center v. Nat. Bank of Ga., 183 Ga. App. 161, 164(4),
358 S.E.2d 307 (1987). "A person need not be a licensed real estate broker,
appraiser or salesman to qualify as" an expert sufficiently qualified to give his
opinion on the value of property. Longino v. City of Atlanta, 127 Ga. App. 299,
300, 193 S.E.2d 190 (1972). On retrial, therefore, the trial court should not
exclude the witness' testimony on the basis that he is not a licensed appraiser.
Id. at 277 Ga. 801, 806, 596 S.E.2d 392.
And, in Department of Transp. v. Turner, the Georgia Court of Appeals held that the mayor of a
town was competent as a non-expert witness to give his opinion of market value if he
furnished fact or facts on which he based his opinion and had opportunity for forming
correct opinion, and thus testimony of mayor, a 40-year resident, that he was familiar with
prices of subdivision lots in city and that he had knowledge of another sale of property
located nearby was sufficient to permit him to give his opinion as to fair market value of
property condemned for highway construction. Id. at 148 Ga. App. 354 (1978).
Step 3: Reliability - Hearsay
It may not be a conclusive presumption, only a rebuttable one, but property owners (and
business owners) are almost automatically presumedv
to have had an opportunity to form a
correct opinion, even if they are underinformed about market values in the area or base their
opinion in part on hearsay.
In Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. 790, 702 S.E.2d 915, 10 FCDR 3714
(2010), the Georgia Court of Appeals wrote:
OCGA § 24-9-66 authorizes the admission of lay opinion testimony on the
issue of market value, if the witness has had an opportunity for forming a
correct opinion thereon. We have held that the opinion of a layperson as
to value may be based on hearsay, and that this fact goes to the weight
of the opinion rather than its admissibility. A witness seeking to give an
opinion as to value, however, must demonstrate that the opinion is his or her
own, and not merely a recitation of the opinion of another. The question of
whether a witness has established sufficient opportunity for forming a
correct opinion on value or has stated a proper basis for expressing that
opinion is within the trial court's discretion.
Id. at 306 Ga. App. 791, 702 S.E.2d 917 (citing See Perry v. Perry, 285 Ga. App. 892, 893(1), 648
S.E.2d 193 (2007)) (footnotes omitted) (emphasis added).
Schoolcraft v. DeKalb County, 126 Ga. App. 101, 189 S.E.2d 915 (1972):
A non-expert witness who has had an opportunity to form a correct opinion
may testify as to his opinion of the market value of the property.
Condemnee, appearing as a non-expert witness, was not allowed to give his
opinion of the market value of the property taken. The witness testified he
was fairly familiar with the value of property in the neighborhood, knew of
rental values there, and had heard of sales of properties in said

7. Page vii of x
neighborhood, and had talked to tree experts, all of which would have
qualified him to testify as to the damages to his property and to diminution
of value of his property remaining after the taking. Market value is
exclusively a matter of opinion even though expressed as a fact. It may rest
wholly or in part upon hearsay, provided the witness has had an opportunity
of forming a correct opinion. If it is based on hearsay this would go
merely to its weight and would not be a ground for valid objections. The
court erred in excluding condemnee's opinion testimony as to the value of
his property and damages thereto.
Id. at 918-919 (citations omitted)vi
See also Excellence v. Martin Bros. Investments, 309 Ga. App.
279, 710 S.E.2d 169 (2011); Unified Government v. Watson, 255 Ga. App. 1, 564 S.E.2d 453
(2002).
Step 4: Weight and credibility.
As noted above and at the beginning of this article, there is a key distinction between
admissibility versus weight and credibility. Just getting evidence admitted may be crucial on
some issues, such as the deference a finding of fact (as opposed to ruling of law) receives on
appeal. Whereas questions of law receive de novo or independent review on appeal, without
deference to the trial court’s rulings, see Suarez v. Halbert, 246 Ga. App. 822, 824, 543 S.E.2d
733 (2000), findings of fact made by a jury (or a judge sitting without a jury) are reviewed by
appellate courts under a “clearly erroneous standard,” see City of McDonough v. Tusk Partners,
268 Ga. 693, 696, 492 S.E.2d 206 (1997) and will not be overturned by an appellate court if
there is any evidence to support them, see Sam's Wholesale Club v. Riley, 241 Ga. App. 693, 527
S.E.2d 293 (1999). So, just getting something admitted into evidence is a big step in
defending a verdict on appeal, but, perfecting the evidence record for appeal is irrelevant in
1) Georgia property tax appeals to Superior Court which receive de novo treatment and 2)
most Georgia property tax appeals to binding arbitration, which are not appealable (but can
be vacated or set aside on some limited grounds).
Regardless of whether a matter is appealable, though, a party wants to win the first time, and
not have to get a reversal on appeal. A discussion of weight and credibility and
tips/suggestion for effective property tax/valuation advocacy by both attorneys and non-
attorneys and effective testimony by appraisers and non-appraisers is beyond the scope of
this article. Suffice it to say that: 1) there are a lot of points that can be made regarding
weight, credibility, and effective advocacy, and 2) it is helpful to think not in terms of who is
giving the testimony, but the nature of the testimony and the factual and analytical bases that
are given to back it up: witness education, experience, training; efforts made and facts
gathered by the witness; how the witness analyzed those facts and reached a conclusion.vii
An appraiser may automatically qualify as an “expert” on value, but his or her effectiveness
as a witness does not follow automatically. And, both Georgia and federal rules of evidence
(upon which many state evidence codes are now patterned), allow and have allowed opinion
of value testimony to be given by non-appraisers for many years.

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Evidence in Non-Jury Trials and Arbitration
When there is no jury to taint with bad evidence, it is not reversible error for a judge to allow
shoddy evidence to be presented. The law presumes that a judge sitting without a jury
knows how to “sift evidence” and “separate the wheat from the chaff.” See Morris v. Morris,
282 Ga. App. 127, 637 S.E.2d 838 (2006); Greene County v. North Shore Resort At Lake Oconee,
LLC, 517 S.E.2d 553 (1999); Kopp v. First Bank of Georgia, 509 S.E.2d 384 (1998).
And, in arbitrations, the rules of evidence are generally more relaxed, not only because the
proceeding may often be less formal than a bench trial, but also because the arbitrator(s) are
usually selected because of their subject matter expertise and are less likely to be tainted by
bad evidence than even a judge:
[A]rbitration proceedings “need not follow all the ‘niceties' of the federal
courts; [they] need provide only a fundamentally fair hearing.” Grovner v.
Georgia-Pacific, 625 F.2d 1289, 1290 (5th Cir. Unit B 1980). “An arbitrator
enjoys wide latitude in conducting an arbitration hearing. Arbitration
proceedings are not constrained by formal rules of procedure or evidence.”
Robbins v. Day, 954 F.2d 679, 685 (11th Cir.1992), overruled on other
grounds, Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985. Arbitration
rules, such as those of the AAA, are intentionally written loosely, in order to
allow arbitrators to resolve disputes without the many procedural
requirements of litigation.
See also Rosensweig v. Morgan Stanley & Co., Inc., 494 F.3d 1328 (11th
Cir. 2007) (In making
evidentiary determinations, arbitrators are not required to follow all the niceties observed by
the federal courts, but they must give the parties a fundamentally fair hearing.); Marshall &
Co., Inc. v. Duke, 941 F. Supp. 1207 (N.D. Ga. 1995) (Arbitration proceedings are not
constrained by formal rules of procedural evidence.); Robbins v. Day, 954 F.2d 679 (11th
Cir.
1992) (Arbitration proceedings are not constrained by formal rules of procedure or
evidence.).
Marshall & Co., Inc. v. Duke, 941 F. Supp. 1207 (N.D. Ga. 1995) Arbitration boards have
wide latitude in conducting arbitration proceedings and are not required to hear any and all
evidence tendered by the parties.
But, it is reversible error for a judge or an arbitrator to exclude evidence that should have
been admitted when the rights of a party are prejudiced or procedures are violated. See Yarn,
ADR Practice and Procedure in Georgia, Ga. ADR Prac. & Proc. § 10:8 (3d ed.).
Presumably, similar principals would apply to Boards of Equalization in Georgia because
they are trained by the Department of Revenue. Then again, appeals from Boards of
Equalization in Georgia to Superior Court are de novo, so, in a sense, it does not make a
difference whether a Board of Equalization refuses to hear evidence or hears it and then
ignores it. Either way, it is a de novo hearing in Superior Court, not reversal and remand to
the Board of Equalization.

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Conclusion
Whether the witness is an appraiser, a property owner, a neighbor, a market participant such
as another buyer or seller or his broker, a developer, or a contractor, the opinion of value
evidence is almost always admissible as long as there is some factual foundation or basis for
the opinion, and the true question becomes its weight and credibility. Regardless of type of
witness, it is the type of testimony that matters most, and the more one can emulate the
“best practices” of that discipline, the more likely the opinion of value is to be perceived as
credible and given weight. See, e.g., American College of Trial Lawyers, Standards and Procedures for
Determining the Admissibility of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994)
(“[W]hether the testimony concerns economic principles, accounting standards, property
valuation or other non-scientific subjects, it should be evaluated by reference to the
‘knowledge and experience’ of that particular field.”).
i The verb “filed” might have made the following provision more clear: “This Act shall become effective on
January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.” See
Georgia 2011 H.B. 24.
ii The rules of evidence are also meant to prevent unfair surprise, overall fairness, and judicial economy, i.e.,
streamlining the whole process. Think of the joint stipulation made in the movie A Few Good Men, in which Lt.
Kaffee (Tom Cruise) stipulates that all of the members of Rifle Security Company Windward will testify that
they heard Lt. Kendrick (Kieffer Sutherland) issue an order that Private Santiago (the deceased) not be harmed
in any way as long as Lt. Ross (Kevin Bacon) agrees to stipulate that all of the members of Rifle Security
Company Windward would testify that they were not in Dawson and Downey’s room a while later when Lt.
Kendrick ordered Dawson and Downey to give Santiago a “Code Red” disciplinary engagement.
The whole process is nicely summarized in McEachern v. McEachern, S90A0670, 260 Ga. 320, 394 S.E.2d 92
(1990):
An analysis of the question of the admissibility of evidence must begin
with a determination whether the evidence is relevant. "Relevant
evidence" means evidence having any tendency to make the existence of a
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.
McCormick on Evidence (3rd ed.), 185, p. 542. See also White v. State, 257 Ga.
236 (356 SE2d 875) (1987).
The weight of the evidence is not considered on the question of
relevancy. The offered evidence need only tend to prove or disprove the
material issue. The Georgia rule favors admissibility. If the relevancy of
the offered evidence is in doubt, it should be admitted and sent to the jury
under proper instructions.
Agnor's Ga. Evid. (2nd ed.), 10-1, p. 223. The exclusion of evidence on the
ground that it is irrelevant is generally within the discretion of the trial
court. O'Neal v. State, 254 Ga. 1 (325 SE2d 759) (1985).
However, relevant evidence may be excluded if its probative value is
outweighed by certain risks. These counter-balancing risks include the risk
that it will cause unfair surprise to the other party who has not had time to
prepare, that presentation will take an undue amount of time, or that the
evidence would tend to confuse or mislead the jury. Agnor, supra, 10-2, p.
225; Candler v. Byfield, 225 Ga. 63 (165 SE2d 830) (1969); Walker v. Bishop,
169 Ga. App. 236 (312 SE2d 349) (1983).
Id. at 260 Ga. 321, 394 S.E.2d 93.

10. Page x of x
iii Expert witnesses are permitted broad latitude unavailable to other witnesses in offering testimony which is
calculated to affect the outcome in any given case. Unlike an ordinary witness, whose testimony is generally
limited to what that individual has perceived through his or her own senses,2 one designated as an "expert"
enjoys the ability to testify based upon matters not within his or her personal knowledge.3 Moreover, unlike an
ordinary witness, whose testimony is generally limited to describing the facts of which he or she has personal
knowledge,4 those designated as "experts" enjoy the ability to testify as to opinions or inferences derived from
a set of facts.5 Such opinions and inferences may even include opinions on the issue to be ultimately decided
by a jury, such as whether a party's conduct fell below the applicable "standard of care" required of that party,
or whether a party's conduct was the "cause" of another party's complained of injuries.6
iv See Alabama Code Section 12-21-114 - Market value testimony. “Direct testimony as to the market value is
in the nature of opinion evidence; one need not be an expert or dealer in the article, but may testify as to value
if he has had an opportunity for forming a correct opinion.” (Code 1907, §3960; Code 1923, §7656; Code
1940, T. 7, §367). Georgia and Alabama appear to be the only states with statutes containing such an explicit
evidentiary provision regarding opinions of value (and they are awfully similar to each other). Then again, it
may be that the strong majority of other states have already adopted evidence codes patterned after the federal
rules of evidence.
v See, e.g., Lunda v. Matthews, 46 Or. App. 701 (Or. App. 1980): In action by husband and wife for trespass and
private nuisance, despite wife’s admission that she was not familiar with other real estate values in area and that
she had not offered property for sale, wife was competent to testify regarding fair market value of her property
and diminution in value, since evidence did not establish that wife had no knowledge of value of her property.
vi Citing Code § 38-1709; State Highway Dept. v. Clark, 123 Ga. App. 627(4), 181 S.E.2d [126 Ga. App. 103] 881;
City of Atlanta v. Layton, 123 Ga. App. 432(4), 181 S.E.2d 313; Williams v. Colonial Pipeline Co., 110 Ga. App. 824,
140 S.E.2d 150; Gainesville Stone Co. v. Parker, 224 Ga. 819, 821, 165 S.E.2d 296; Schumpert v. Carter, 175 Ga.
860(1), 166 S.E. 436; Central Georgia Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387; Central Railroad & Banking Co.
v. Skellie, 86 Ga. 686, 693, 12 S.E. 1017).
Further citing Code § 38-1709; Landrum v. Swann, 8 Ga. App. 209(1), 68 S.E. 862; Widincamp v. McCall, 25 Ga.
App. 733(1), 104 S.E. 642; Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716; Powers v. Powers, 213 Ga.
461(2), 99 S.E.2d 818; Central Railroad & Banking Co. v. Skellie, 86 Ga. 686, 693, 12 S.E. 1017, supra; Sammons v.
Webb, 86 Ga. App. 382, 386(4), 71 S.E.2d 832; Purser v. McNair, 153 Ga. 405(2), 112 S.E. 648.
See also Apostle v. Prince, 158 Ga. App. 56, 57, 279 S.E.2d 304, 306 (1981); Bryant v. General Motors Acceptance Corp.
, 184 Ga. App. 323, 325, 361 S.E.2d 529, 530, 5 UCC Rep.Serv.2d 830, 830 (1987); City of Alma v. Morris, 180
Ga. App. 420, 421, 349 S.E.2d 277, 278 (1986); Commercial Exchange Bank v. Johnson, 197 Ga. App. 529, 531,
398 S.E.2d 817, 819 (1990); DeKalb County v. Queen, 135 Ga. App. 307, 308, 217 S.E.2d 624, 626 (1975);
Department of Transp. v. Worley, 150 Ga. App. 768, 773, 258 S.E.2d 595, 600 (1979); Gibbs v. Clay, 137 Ga. App.
381, 382, 224 S.E.2d 46, 47 (1976); Hiatt v. State, 133 Ga. App. 111, 112, 210 S.E.2d 22, 23 (1974); Hirsch v. Joint
City County Bd. of Tax Assessors, 218 Ga. App. 881, 882, 463 S.E.2d 703, 705 (1995); Vitello v. Stott, 222 Ga. App.
134, 136, 473 S.E.2d 504, 506 (1996).
vii See, e.g., Advisory Committee Note to 2000 Amendment to Federal Rule of Evidence 701 :
“The amendment does not distinguish between expert and lay witnesses, but rather between
expert and lay testimony. Certainly it is possible for the same witness to provide both lay and
expert testimony in a single case. See, e.g., United States v. Figueroa-Lopez, 125 F.3d 1241,
1246 (9th Cir. 1997) (law enforcement agents could testify that the defendant was acting
suspiciously, without being qualified as experts; however, the rules on experts were
applicable where the agents testified on the basis of extensive experience that the defendant
was using code words to refer to drug quantities and prices). The amendment makes clear
that any part of a witness’ testimony that is based upon scientific, technical, or other
specialized knowledge within the scope of Rule 702 is governed by the standards of Rule 702
and the corresponding disclosure requirements of the Civil and Criminal Rules.”
Id.