Observations from Judges on Scientific Evidence
I spoke last week at a CLE seminar on "Chemical Products Liability and Environmental Litigation." One of the panels included an array of federal and state court judges who offered their thoughts on a number of interesting topics, including Daubert/Frye issues.
No surprise for the savvy readers of MassTortDefense, but one clear takeaway is that judges have differing views and approaches on a variety of expert-related issues, including when they hold a hearing vs. deciding on the paper, and when they want the experts to appear live vs. argument.
There were a few areas of consensus.
- The panel agreed you need to know your judge, learn his or her preferences, and know how busy their docket is.
- In Daubert or Frye hearings, don't waste time on Rule 56 or Rule 702 black letter law.
- In filings, always cite to the record so the judge or clerk can find the basis of factual assertions. This was called a "lost art."
- A stipulated joint glossary of key terms is appreciated when possible.
The judges agreed that they are not overly impressed with arguments noting the expert was excluded by other courts on other cases. If the facts are nearly identical, and they respect the other judge, and there is an opinion or order with some reasoning, they may give it some weight. But if the expert opinion was also admitted in some other cases, this may cancel out the influence of prior exclusions.
Finally, while many lawyers talk about filing an iffy or uncertain motion to "educate" the court as to important science issues, the panel suggested this often doesn't help. There may be a time lag between the motion and trial; and the loss of momentum from losing a motion may have carry-over effects in the litigation.
