Striking Experts
Thirty years ago, our alma mater's law review published the seminal legal analysis of the infield fly rule. It began with this straightforward pronouncement: "The Infield Fly Rule is neither a rule of law nor one of equity. It is a rule of baseball." See Aside, The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975).
It was intended as a parody.
Comes now Mark Herrmann. His commentary, entitled "Three strikes should apply to experts," was published March 9 in The Recorder, San Francisco's legal paper. It has also been picked up by the National Law Journal and is available online for subscribers to law.com. Its opening sentences say it all:
It was intended as a parody.
Comes now Mark Herrmann. His commentary, entitled "Three strikes should apply to experts," was published March 9 in The Recorder, San Francisco's legal paper. It has also been picked up by the National Law Journal and is available online for subscribers to law.com. Its opening sentences say it all:
California did it to felons: After a third felony conviction, it's life in prison without parole. Three strikes, you're out. Florida did it to physicians: After three adverse medical malpractice judgments, physicians cannot practice in Florida. Three strikes, you're out.We will wait to see if this silly idea gains traction before we say a lot more. For the moment, we'll just mention that it's questionable whether any of these "three strikes" programs represent wise policy. This is not the place to debate whether the Nation's laws derive their ultimate legitimacy from the Ten Commandments. But we could agree, perhaps, that our legal system should be slow to draw its central inspirations from Abner Doubleday.
A similar rule should apply to expert witnesses in litigation: After three courts exclude a witness's testimony as "junk science," the witness should no longer be permitted to testify as an expert. Three strikes, you're out. This rule would invigorate the effort to keep junk science out of the courtroom; it would bar the courthouse door to charlatans. Judges and juries would no longer be burdened with testimony from recidivist junk scientists.
2 Comments:
Educate me: isn't this effectively the de facto case anyway? Or can parties keep the jury from hearing that an expert's previous testimony has been barred as unreliable? Or, if so, are parties still willing to risk having such a discredited witness take the stand in a battle of the experts?
Well, some experts testify very, very frequently, and having only three exclusions might represent a pretty good track record for them. And some litigants may not have access to alternative experts and may have to go with what they can. But you're right, I think, that if an expert's history really demonstrates that he or she is a seriously recidivist testimonial failure, the expert won't get hired, or the next judge won't admit the testimony, or the jury won't believe the testimony (if it hears about the recidivism).
Whether courts will permit cross-examination on Daubert rulings from other cases is an interesting issue. The answer may be that a lot depends on judicial discretion. Unless the expert opinions from the different cases are pretty closely related, some judges would probably view such questioning as an unwelcome collateral excursion. Others might view it as fair game.
Post a Comment
<< Home