Sunday, October 17, 2004

Daubert on the Cheap

From Newmark's Door, via Ted Frank, we learn of an internet site offering "Daubert quality economic damage reports" for prices starting at $250.

This would represent an undoubted economy, but it brings to the fore a lurking question that deserves more exploration in the post-Daubert era. Like witnesses in general, experts are traditionally immune from suit over legal claims arising from their testimony. No doubt there are legitimate policy reasons for testimonial immunity. We want witnesses to testify truthfully and candidly, rather than having them color their testimony based on fears of legal exposure.

On the other hand, slipshod expert testimony can be just as ruinous for a client, these days, as incompetent legal representation. Should the clients be left without recourse, or should a right of action be recognized for expert malpractice? Should a client have a claim, for example, if his witness's opinion is ruled "unreliable" under Daubert? Before plaintiffs' lawyers answer yea, or defense lawyers answer nay, they should consider the possible effects of potential malpractice liability on the cost and quality of expert testimony. For example, if experts responded by protecting themselves through liability insurance, the cost of expert opinion would surely rise, and the insurers might well exert some pressure on experts to base their opinions on thorough and rigorous analyses. That might improve the general quality of expert evidence. Or it might just make experts likelier to practice "defensive testimony," or to retreat from the fray altogether.

Whatever one may think about those issues, what should happen, if an expert markets his services by promising a "Daubert quality" report and then fails to deliver? Some experts might feel that $250 was not enough to compensate them for the risks.

Update: Of course, one perennial liability-avoiding maneuver is to issue a disclaimer, as the good people at (the web site to which we adverted above) have now done (see the comments). Perhaps it says something about the prevailing state of evidentiary law, that a service touting its adherence to generally accepted economic and/or accounting principles cannot realistically promise that such adherence will result in the admissibility of the evidence.

Further Update: Over at Point of Law, Ted Frank has responded on the subject of expert malpractice, quoting one author who reports that several states (including our native Commonwealth of Pennsylvania) now permit at least some claims against expert witnesses. Ted Frank also remarks on "how quickly attorneys recognize the costs of the tort system when it can negatively affect their own profession," but we're sure he didn't have us in mind. We haven't advocated caps on damage awards in legal malpractice actions, or the pre-filing screening of legal malpractice claims by members of the bar. Quite the contrary, we're forced to confess that on those occasions when our conscience might not be enough, by itself, to keep us on the straight and narrow, the threat of malpractice liability is a healthy incentive.


Anonymous writes ...

Dear Blog 702:

We at and The National Compensation Experts would like to thank you and Ted Frank for reviewing our website. We read your blogs daily.

As you could guess, the response to our service has been overwhelming. Attorneys, esp. attorneys in need of a significant number of damage reports, have found that our services is exactly what they need. We have been able to give them reports that equal or better the ones that they are used to receiving from their local economists.

We have found that by centralizing the 'grunt work' of collecting documents etc. at our main office, we can let the economic experts just do their jobs. This lowers the cost of producing economic damage reports significantly and allows us to offer attorneys flat rate pricing.

As for our service, we just want to make it clear, that we are in no way saying that our damage reports will survive a Daubert challenge. We are simply saying that our experts adhere to generally accepted principles when constructing our economic damage reports.

Thanks again for the review of our site and keep up your good work.

The National Compensation Experts

8:14 PM  

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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.