Mentioned in earlier Courtroom Insight posts, California courts must apply the Daubert standard for admitting expert witness testimony. Florida may be yet another state to follow suit, trading the current Frye standard for admitting expert testimony for Daubert. Only 10 states adhere to the almost century-old Fry standard, and if a proposed bill is passed by the full House and the Senate, the number will whittle down to 9.
Frye v. Daubert:
Frye (named after a 1923 Supreme Court case) is a bit more narrow in standards for admitting expert witness testimony.
Expert witness testimony can only be admitted if it is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”
Daubert (named after a 1993 Supreme Court case) places the role of gatekeeper on the judge, who can admit expert testimony if s/he feels it is based on scientifically sound principles. A “pure opinion” section of the proposed bill will allow experts to give an opinion as opposed to a scientific or technical fact. The bill, proposed by Larry Metz, provides an outline to be applied by the judge before the expert witness pure opinion testimony can be admitted:
a) The testimony must be based upon sufficient facts or data,
b) the testimony must be the product of reliable principles and methods, and
c) the expert must be shown to have applied the principles and methods reliably to the facts of the case.
Con: The bill has met a fair share of opposition. Arguments against the bill from various trial lawyers, House Democrats and each of the state’s 20 elected state attorneys.
“The Supreme Court of Florida has twice, within the last decade, said that they wouldn’t adopt Daubert when given the opportunity because Frye was the more conservative and reliable standard for handling expert witnesses,” insists Buddy Jacobs, general counsel for the FPAA. “The Daubert standard would be more expensive and would create trials within trials.”
He says that, under the Daubert system, costs would skyrocket as defense attorneys would bring “experts testifying about experts testifying about experts,” while the state expends taxpayer dollars to produce more experts for rebuttal and to prosecute trials that are drawn out longer.
Pro: Supporters of the Daubert standard see it differently. Rather than raising costs by using more experts, the Daubert standard can actually reduce costs in some instances.
[Attorney William Large] points out that successful challenges to an expert witness can “effectively end” a litigation sooner than it would if an expert were given time to testify, particularly if that expert’s testimony is the only evidence a plaintiff has at his disposal.
Source: click here.
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Daubert standards have made headlines recently, emphasizing how a judge’s role as “gatekeeper” places expert testimony under even more stringent criteria.
- Reliability requirement of FRE 702
- Sufficient methodology
- Not speculative
Expert testimony has the inherent potential to be both powerful and misleading. Therefore, in weighing possible prejudice against probative value under FRE 403, a judge has authority to exercise more control over expert witnesses than over lay witnesses.
Expert testimony is a large part of most cases, however the Daubert challenge and exclusion of a leading expert’s testimony does not necessarily mean a motion for summary judgement will be granted. A lay witness may be a way around the failure to have expert testimony.
Rule 701 generally states that, if a witness is not testifying as an expert, the testimony is limited to testimony that is (1) rationally based on perception, is (2) helpful, and (3) is “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
While it is good to know your or the opposing expert’s Daubert history, it doesn’t always lead to a an overall victory. Attorneys must know an expert’s testimony history along with his or her credentials and how to combat Daubert challenges successfully by having a backup plan in place. Lay witnesses, such as contractors who may have witnessed damage for property cases, are just one example.
If you have experience with experts who have had successful testimony, or experience in front of judges that have ruled on Daubert challenges, share your insight by writing a review on Courtroom Insight today!
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Code of Ethics:
Justice Steven Perren made a ruling on Tuesday regarding the code of ethics that should be applied by arbitrators. Standard 8 of the 2002 California Ethics Standards for Neutral Arbitrators in Contractual Arbitrations states that it is the responsibility of the neutral to disclose relationships between the ADR provider and any party or attorney involved in the arbitration.
“While that rule seems harsh, it is necessary to preserve the integrity of the arbitration process.” –Justice Steven Perren
Attorney William Ginsburg joined the same ADR provider as the arbitrator that was conducting arbitration for one of the Ginsburg’s cases. While Ginsburg claims he only works as an independent contractor, the arbitrator failed to disclose the relationship during the following two years that the case was active. After a nine-day arbitration, the ruling was in favor of Ginsburg’s client.
The case was then appealed due to the finding of the relationship, with grounds that the arbitrator was conflicted. The Second District Court of Appeal agreed, and Justice Steven Parren ruled to vacate the award.
Perren added in a footnote, “A reasonable person could doubt the ability of Judge Haber to be impartial” under the circumstances.
As James Beck of Reed Smith puts it, "California has long gone its merry, idiosyncratic way in the Daubert/Frye wars." That's why it was a big surprise when the California Supreme Court cut off this legal tangent and stated that California courts must apply the same Daubert standard as their federal counterparts when it comes to admitting opinion testimony not based on a new scientific technique.
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