Testifying Expert 

“This Court has the highest regard for Professor Daniel Kleinberger. When the Court was in private practice and litigated business disputes, Professor Kleinberger was the undersigned's expert witness of choice.” 

Louisiana Mun. Police Employees Retirement System v. Finkelstein, No. 27-CV-11-23986 (Minn.Dist.Ct. Nov. 29, 2012), ¶ 18.

Except in unusual circumstances, a lawyer may not testify as an expert about the law applicable to a case.1 That information comes to the judge through his or her own research and from the arguments of the lawyers.  In a trial by jury, the judge instructs the jury on the applicable law.2

When Professor Kleinberger testifies as an expert, he does not testify about the law.  Instead, he relies on his knowledge and understanding of the “norms of business governance” – that is, how honest and reasonable business people treat their fellow owners in the management of their business.  As a federal judge explained to a jury in a criminal case, “Persons, such as Professor Kleinberger, who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion.”3

Professor Kleinberger often testifies to “demystify” the legal structure of limited liability companies, corporations, and partnerships.  He translates “legal formalities” into the language of business life and practice.  Depending on the circumstances, Professor Kleinberger might explain – from a practical, business prospective – the proper way to handle conflict of interest situations, deal reasonably and fairly with power differentials within a closely held business, or respond to complaints by passive investors.  He explains in what circumstances recordkeeping and other operational informalities put creditors unfairly at risk, and in what circumstances they do not.

1 A lawyer may testify as to the law of a foreign nation.  For example, Professor Kleinberger testified in the Tax Court of Canada as to Delaware’s law concerning limited partnerships.

2 See e.g. Specht v. Jensen, 853 F.2d 805, 808-09 (10th Cir. 1988) (“Courts … draw a clear line between permissible testimony on issues of fact and testimony that articulates the ultimate principles of law governing the deliberations of the jury. These courts have decried the latter kind of testimony as directing a verdict, rather than assisting the jury's understanding and weighing of the evidence. In keeping with these decisions, we conclude the expert in this case was improperly allowed to instruct the jury on how it should decide the case.”)

3 U.S. v. Walker No. 11-cr-381 (SRN/JJG) 2014 WL 5513859 (D.Minn. March 7, 2014) (Jury Instruction).