Educating Experts About Daubert
A visitor to the site inquires: "Are there any Daubert training tapes out there for novices who have not yet testified as an expert but will be in the not-so-distant future?"
We personally have no idea. Perhaps some of our readers do.
One risk of providing such material to an expert (especially material delving into tactical considerations) would be that the expert could later be portrayed as having shown an unseemly interest in the legalities, if the expert's review of the material were disclosed during discovery. That risk of disclosure is more than negligible. Attorney-client privilege would not apply, and the fate of any attorney work-product objection in such a context must be reckoned as uncertain, even if it is assumed that the material in question would have been prepared by counsel. Moreover, in federal court, and in state jurisdictions that model their rules of civil procedure on the federal ones, there would be room for an argument that any Daubert "training tape" formed part of "the data or other information considered by the witness in forming the opinions," in which case its disclosure in the expert's report would be mandatory under Fed. R. Civ. P. 26(a)(2)(B).
Many lawyers and judges, meanwhile, might actually be happiest if experts didn't worry their pretty little heads at all about the legal standards governing the admissibility of their testimony. There is a belief in many quarters that any curiosity by an expert about the legal context in which the expert's opinions will be used and evaluated must indicate a want of neutrality and objectivity on the expert's part -- a belief that a truly honest expert, uninfluenced by considerations of advocacy or side-taking, wouldn't need to know about the legal issues. The expert's only job, on this view, is to hand over the expert's Findings, and to let other people wrangle over their validity and meaning. Such a belief can be criticized as epistemologically naive, and moreover seems unfair to novitiate experts, who are often unprepared for the treatment their work will receive at the hands of the adversary process, and who are also often unfamiliar with the peculiarly legal standards for evidentiary reliability under which their testimony will be judged. But the belief is widespread, and because some experts have indeed been known to tailor their substantive opinions to fit the demands of the litigants who retained them, it will not go away.
At the same time, an expert is surely entitled to know what Rule 26 requires, by way of a report, and how the general process of testing the admissibility of the expert's testimony will go. One might even be forgiven for advising the expert about the substantive factors that bear on admissibility under Daubert and its progeny, so that the expert may avoid hiding his or her light under a bushel. Propounding attorneys do their experts a disservice when they conceal this information, as occasionally occurs on the theory that too much knowledge of the legal process might make the expert skittish about embarking on the endeavor in the first place (or, more benignly, as the simple result of lawyerly laziness or oversight). At the very least, counsel who retain an expert should explain some of the legal basics.
But that mechanism is arguably insufficient, not only because counsel may understand Daubert imperfectly themselves, but also because of inherent incentives to avoid mention of information that an expert might find discouraging. Should there be a more standardized method for communicating the relevant legal rudiments to experts? Perhaps a text or video sanctioned by judicial or academic authority, so that experts might educate themselves by consulting a neutral and untainted source about the legal and evidentiary milieu, without the risk of being branded as hacks-for-hire, whose opinions are for sale to the highest legal bidder?
Yes, there should be. But so far as we know, there really isn't -- nothing tailored for consumption by experts, as opposed to lawyers. That's too bad. It would help experts to present their testimony in a form more helpful to the court and the trier of fact.
Until that situation is remedied, experts may wish to go to the primary sources -- the rules of evidence and procedure, the Supreme Court's opinions in Daubert and its progeny, decisions from the lower courts involving testimony in the expert's field -- and to such secondary legal sources as the Federal Judicial Center's Reference Manual on Scientific Evidence (2d ed. 2000). If there is still some aspect of the process that an expert doesn't understand after consulting such sources, the expert should push counsel to provide an answer.
Some of that source material, of course, is available via our parent site, Daubert on the Web. Be sure to tell them we sent you.
We personally have no idea. Perhaps some of our readers do.
One risk of providing such material to an expert (especially material delving into tactical considerations) would be that the expert could later be portrayed as having shown an unseemly interest in the legalities, if the expert's review of the material were disclosed during discovery. That risk of disclosure is more than negligible. Attorney-client privilege would not apply, and the fate of any attorney work-product objection in such a context must be reckoned as uncertain, even if it is assumed that the material in question would have been prepared by counsel. Moreover, in federal court, and in state jurisdictions that model their rules of civil procedure on the federal ones, there would be room for an argument that any Daubert "training tape" formed part of "the data or other information considered by the witness in forming the opinions," in which case its disclosure in the expert's report would be mandatory under Fed. R. Civ. P. 26(a)(2)(B).
Many lawyers and judges, meanwhile, might actually be happiest if experts didn't worry their pretty little heads at all about the legal standards governing the admissibility of their testimony. There is a belief in many quarters that any curiosity by an expert about the legal context in which the expert's opinions will be used and evaluated must indicate a want of neutrality and objectivity on the expert's part -- a belief that a truly honest expert, uninfluenced by considerations of advocacy or side-taking, wouldn't need to know about the legal issues. The expert's only job, on this view, is to hand over the expert's Findings, and to let other people wrangle over their validity and meaning. Such a belief can be criticized as epistemologically naive, and moreover seems unfair to novitiate experts, who are often unprepared for the treatment their work will receive at the hands of the adversary process, and who are also often unfamiliar with the peculiarly legal standards for evidentiary reliability under which their testimony will be judged. But the belief is widespread, and because some experts have indeed been known to tailor their substantive opinions to fit the demands of the litigants who retained them, it will not go away.
At the same time, an expert is surely entitled to know what Rule 26 requires, by way of a report, and how the general process of testing the admissibility of the expert's testimony will go. One might even be forgiven for advising the expert about the substantive factors that bear on admissibility under Daubert and its progeny, so that the expert may avoid hiding his or her light under a bushel. Propounding attorneys do their experts a disservice when they conceal this information, as occasionally occurs on the theory that too much knowledge of the legal process might make the expert skittish about embarking on the endeavor in the first place (or, more benignly, as the simple result of lawyerly laziness or oversight). At the very least, counsel who retain an expert should explain some of the legal basics.
But that mechanism is arguably insufficient, not only because counsel may understand Daubert imperfectly themselves, but also because of inherent incentives to avoid mention of information that an expert might find discouraging. Should there be a more standardized method for communicating the relevant legal rudiments to experts? Perhaps a text or video sanctioned by judicial or academic authority, so that experts might educate themselves by consulting a neutral and untainted source about the legal and evidentiary milieu, without the risk of being branded as hacks-for-hire, whose opinions are for sale to the highest legal bidder?
Yes, there should be. But so far as we know, there really isn't -- nothing tailored for consumption by experts, as opposed to lawyers. That's too bad. It would help experts to present their testimony in a form more helpful to the court and the trier of fact.
Until that situation is remedied, experts may wish to go to the primary sources -- the rules of evidence and procedure, the Supreme Court's opinions in Daubert and its progeny, decisions from the lower courts involving testimony in the expert's field -- and to such secondary legal sources as the Federal Judicial Center's Reference Manual on Scientific Evidence (2d ed. 2000). If there is still some aspect of the process that an expert doesn't understand after consulting such sources, the expert should push counsel to provide an answer.
Some of that source material, of course, is available via our parent site, Daubert on the Web. Be sure to tell them we sent you.
2 Comments:
Blog 702:
Two things.
First, there are a number of resources out there that a new scientific expert witness can use to get up to speed on Daubert. Seak publishing, I believe is the name, has a whole series on being an expert witness. There is also a book 'The Expert Witness Handbook', by Dan Poynter that is very useful.
Second, I have to agree with you on the benefits of NOT worrying about Daubert. What we have found is that if an expert does and performs the same type of work that they would say in an academic setting, they will be more than fine. In fact, as the court becomes more and more acquainted with scientific techniques, I think Daubert will actually HELP the expert and not hurt them. This is because the more knowledgeable courts will know how to see thru the smoke and mirrors.
The National Compensation Experts
LostCompensation.Com
We should have been clearer. What *doesn't* exist, so far as we know, is a general treatment sanctioned by an authoritative academic or judicial body and intended for expert consumption.
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