Saturday, January 31, 2004

Breaking News: Professor Bernstein & Blog 702 Agree on Something

We often disagree with Professor Bernstein, and he often disagrees with us, and neither party has ever been shy about saying so. But the good professor has managed to find some common ground, graciously expressing basic agreement, from his perch over at VC, with our post of 1/23/04 on John Edwards and the expert evidence he has used in his malpractice cases. If you're unhappy with a system that imposes on litigators an ethical duty to be zealous in protecting their client's interests, and which sometimes permits them to manifest their zeal by offering evidence that some might deem questionable, then criticize the system, says Professor Bernstein. Lawyers who simply follow the system's rules in good faith shouldn't be villified for doing their jobs.

It is comforting to hear litigators defended like this on occasion. Not that we're oversensitive or anything . . . .
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.