Friday, August 20, 2004

Second Draft of Proposed Model Local Rule on Expert Disputes

During August of last year, we promulgated a proposed model local rule to govern motion practice involving the admissibility of expert testimony. It was greeted with nationwide apathy. That could be because everybody was on vacation. Or it could be because this is among the most boring questions ever to engage human attention.

Boring, that is, until you're actually caught up in litigating a Daubert motion, at which point you may wish very fervently that the rules afforded much more explicit guidance than they do. Counsel opposing Daubert motions have very particular reason to be interested in this issue. If their expert's underlying testimony is reliable, they are likely to profit greatly from rules that promote disclosure, fairness, and due process in Daubert proceedings. To mention just one example, the opposition commonly has months to pore over your expert's report and prepare an encyclopedic motion to strike, perhaps supported by affidavits from numerous witnesses whose theories and very identities may have been utterly unknown to you until the day the motion to strike was served. Now you're playing catch-up. Might the discovery rules have been deployed to improve your preparedness?

Meanwhile, counsel resisting Daubert motions (read plaintiffs' lawyers) aren't the only ones with an interest in defining procedural expectations more sharply. Defense counsel should consider the teachings of Fed. R. Evid. 103(a) on how to preserve error for appeal. You must object at trial, on pain of waiving appellate review except for clear error. You must object, that is, unless your objection was already resolved in a "definitive" pretrial ruling. Rule 103 affords almost no guidance, however, on how to tell "definitive" pretrial rulings from non-definitive ones, and so in doubtful cases, you have some serious thinking to do when the adversary's experts take the stand. Should you make a series of futile objections, only to have the judge overrule them, perhaps with a weary sigh, while the jury looks on with mounting impatience and/or derision? Or should you hold your fire and risk waiver of your appellate rights? Wouldn't you be happier if you knew, before the trial began, whether you could rely on the pretrial papers to preserve error?

We think our model local rule has something for everyone, but we're conscious of having fallen down in our salesmanship. To remedy that failing, we have produced a second draft, also adding some "Advisory Committee Notes" to help explain why all of this may matter. It's August, the office is quiet, and sadly enough you have nothing better to do. Go take a look.

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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.