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Use of Experts

One of the questions that is bound to come up as you get ready to try your case before the initial fact finder, is whether you should call an expert witness on animal behavior or temperment. Such a witness could arguably give opinion evidence on issues such as provocation, the overall temperment of the dog, and whether the dog is, in fact, dangerous.

The first question is a practical one. Can your client afford to hire an expert, or can you get one gratis?  Obviously if the answer is no, that is the end of the inquiry.

The second question is a legal one. Is such testimony relevant in the statutory scheme under which you are trying the case. The government takes the position that the dangerous dog statutes are strict liability and therefore nothing matters except whether the dog took action as defined under the statute as required.  General temperment is irrelevant, as is the dog's instincts.

In a close case, an expert may be helpful.  The failure to allow the defense to call an expert may be the basis of reversible error, but only if the qualifications are set forth in the record and a proffer is made of his or her testimony.  I can see the fact finder just not allowing any testimony on the issue and that becoming an appellate issue.

Applicable Case Law

Alaska

Sinclair v. Okata, 874 F. Supp. 1051 (D. Alaska 1994) - This was a civil dog bite damage case.  It does discuss the use of an expert on the issue of whether a dog had vicious propensities. The expert examined prior biting incidents and determined that they were the result of  overstimulation, protective instincts,  and chase instincts. They were not, the expert opined, the result of vicousness but responses common to all dogs. The court ruled that the expert's opinion created an issue of fact precluding summary judgment on that issue.

Arizona

James v. Cox, 634 P.2d 964 (Ariz. App. 1981) - An Arizona court allowed testimony as to the dog's lack of aggravation or provocation around children, the theory being that this would be probative as to whether the dog was likely to be provoked. There was testimony in the case that the child hit the dog and the court held unintentional provocation was a defense.  This was in a civil case, not a dangerous dog case, but the strict liablity of the civil statute was similar.

Potential experts

Canine behaviorist - Soraya V. Juarbe-Diaz - Oliver v. Clay County

Motion to Stay Pending Appeal

If you lose before the initial fact finder, be it Code Enforcement Board, Animal Control or General Magistrate, it is important to make a Motion to Stay the Classification Pending Appeal.  The dog may be at home, being housed at the vet or at Animal Control pending euthanasia. By moving to stay the classification pending appeal, you are trying to get the dog home pending appeal and prevent whatever further restrictions that may go into effect as a result of the classification. 

The Motion to Stay should have an evidentiary basis.  File the hearing transcript and provide affidavits on issues which need an evidentiary basis. The best example of a Motion for Stay with a Memorandum of Law can be found below in the Lipsky case.

There is some suggestion in the case law and the appellate rules that if you fail to make a Motion to Stay before the intial fact finder, you may not be able to do so for the first time on appeal. If the lower tribunal refuses to entertain the Motion at all, which is what the Code Enforcement Board did in Triana, you can then renew your Motion in the Appellate Court.  Likewise if the lower tribunal denies the motion on the merits, you can renew your Motion for Stay in the Appeal.

In any case, you never want to be in the position where you waived it by not bringing it before the lower tribunal.

Pleadings

Motion to Stay Before Code Enforcement Board - Marion County v. Triana

Memorandum of Law in Support of Stay Before Code Enforcement Board - Marion County v. Triana

Motion to Stay Before Hearing Officer - Lipsky v. Broward Animal Care and Regulation Division

Memorandum of Law In Support of Stay Before Hearing Officer  - Lipsky v. Broward Animal Care and Regulation Division