Thursday, June 21, 2007

Department of Citations for Obscure Propositions

Sometimes we run across an expert report that seems largely devoid of direction or argument, and we find it can be hard to identify, in any succinct and familiar legal vocabulary, the evidentiary vice from which it suffers.

You've seen the kind of report we're talking about. The expert may be well qualified, and the propositions stated in the report, considered in themselves, may look defensible enough -- some to the point of being platitudinous. Each proposition may even be supported by citations to the literature. But the report itself meanders, proceeding from one proposition to another with no evident organizing principle. Although the exposition otherwise bears all the badges of literacy, the relationship between one point and the next is left obscure, as is the manner in which the expert's various assertions are thought to support his or her ultimate conclusions (if indeed the report offers decipherable conclusions at all). You read such a report and say: "Is it me? This doesn't look like an analysis. It doesn't look like a chain of reasoning. It does not appear to apply any recognizable method. It looks like a random trail of discursive breadcrumbs on the logical road to nowhere."

Well, we still don't know what name to give this phenomenon, but now we know of something to cite when it happens. From the Delaware Supreme Court's decision on Monday in Spencer v. Wal-Mart Stores East, LP, No. 305, 2006 (Del. June 18, 2007):
[T]aking phrases from various trade journals and piecing them together to develop an opinion is not a satisfactory basis or technique to be used to form an expert opinion in the Delaware courts. After reviewing [this expert's] report, the Superior Court found that the majority of [the expert's] opinion was "based simply on his culling potentially favorable snippets from various snow plowing and safety publications, instead of an opinion based on the application of facts to a scientific theory, or adequate experience and special training." That finding is solidly grounded in the record. [The expert] failed to perform a sound analysis of the facts and theories, and to show how he reached his conclusions from his observations.



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11:49 AM  

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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.