Daubert and Unpublished Decisions

As many readers will have heard by now, the Supreme Court has approved amendments to the Federal Rules of Appellate Procedure that will permit citation of unpublished opinions beginning in 2007 (unless Congress intervenes in the interim, which it isn't likely to do).

There may be fields of legal practice where the change will make little difference. The prediction here, though, is that in the area of expert evidence, the changes will be noticeable. About 40% of all federal appellate opinions addressing the admissibility of expert evidence are currently unpublished. After the rules change, there will be a substantial expansion of the corpus of decisions to canvass for precedents involving the same expert, or the same field, or the same issue, or similar fact patterns.

As matters stand, it can sometimes be difficult to find a citable case on point, and when precedents on point aren't to be found, briefing and appellate analysis can tend to take a factor-oriented direction. Arguments about admissibility, that is, can tend to proceed, in a precedent-poor environment, by reference to abstract and fluid principles that radically underdetermine the outcomes (which are, to that degree, somewhat unpredictable).

But as the body of citable decisions expands, so too does the likelihood of finding decisions on point. We can't prove it by rigorous empirical means, but it's our perception that as the number of Daubert precedents has grown over time, recurring issues and fact patterns have begun to precipitate what might be called "local" rules of decision -- decisional ecologies in particular topical and disciplinary neighborhoods, within which like cases increasingly tend to be decided in like manner. If we are right in perceiving such a trend, then maybe it will accelerate as a larger body of citable precedents becomes available. Ceteris paribus, that would seem a positive prospect.