Expert Prevalence, Persuasion and Price: What Trial Participants Really Think About Experts

By measuring how expert witnesses are actually used in court, this study offers important new data about what makes expert effective and suggests that some commonly held beliefs about experts are misguided. In doing so, the data establishes an important new baseline for measuring expert witnesses in court, updating and expanding on prior research in the field

Utilization of Rules 614 and 706 in Fact-Finding: A Recent Study of Midwest Judges

J udges who are deciding contested issues in their courtrooms have an immense toolbox of potential methods at their disposal. Many of these are commonplace methods, used on a day-to-day basis for common issues in litigation. Pretrial conferences come to mind as an example in this regard. But for those issues involving complex science, a judge has choices to make on how to perform his or her important gatekeeping role, and those gatekeeping tools may be more rarely used. In 1993, the United States Supreme Court chose to review admissibility of scientific evidence in the landmark case of Daubert v. Merrell Dow Pharmaceuticals.1 In that case, the court declared that district court judges must act as a gatekeeper for admissibility of scientific evidence, to determine the relevance and reliability of expert evidence before its admission. Further caselaw affirmed and expanded the original Daubert holding, ensuring trial judges had maximum flexibility to perform the gatekeeping function.2 So what tools do judges actually use to perform their gatekeeping role, and how often do they do so? During those years when the Court was scrutinizing scientific evidence in Daubert and other related decisions, several studies examined the issue of gatekeeping methodology in both state and federal courts. These studies relied on surveys performed before the end of the Daubert trilogy, at a time when many states had either recently shifted their standard to Daubert or had yet to do so. Considering the age of the studies, updated analysis seems timely

Daubert, Probabilities and Possibilities, and the Ohio Solution: A Sensible Approach to Relevance Under Rule 702 in Civil and Criminal Applications

Probability for expert opinions is the correct standard for civil cases based on the preponderance of the evidence burden of proof. Among other effects, the probability requirement reduces jury speculation, avoids absurdity, appropriately adopts legal relevance as the standard for admission, and avoids negative effects on the out-of-courtroom practices of professionals. Expert opinions explaining possibilities, while inappropriate for civil case consideration, have Rule 702 relevance and are useful in criminal cases based upon the beyond a reasonable doubt burden of proof. Based on an evaluation of federal and state cases, Rule 702, and the purposes of expert testimony, the Ohio example of split relevancy standards for expert opinions offered in criminal and civil cases is an appropriate, reasonable, and sensible approach to Rule 702 relevance

Disruption to Disorder: The Case Study of For-Profit Legal Education in Riaz Tejani\u27s Law Mart

(Excerpt) Rarely a day goes by without headlines hailing new approaches to legal education, from mild changes to major modifications to the existing order. These new approaches range from minor tweaks to major overhauls and, in recent years, have included innovations such as formative assessment, flipped classrooms, two-year JD programs, tiered licensing, GRE admissions, online education, and refocusing on practice skills or professionalism—to name a few. Our era of disruption is a time to stop and reflect upon an earlier story of legal education experimentation, namely the rise and eventual collapse of for-profit legal education. It is a story outlined in compelling detail in Riaz Tejani’s Law Mart, and one which can be consolidated into a single question with many ramifications: how does the for-profit model affect the management and outcomes in postgraduate legal education? It is a perfectly reasonable question, and one I myself asked many years ago while interviewing for a position at a school managed by the InfiLaw System. As I slowly came to learn, and as Tejani makes clear in his work, the answer to the question depends largely on who you ask. That does not mean, however, that there is not an answer

Expert Prevalence, Persuasion and Price: What Trial Participants Really Think About Experts

By measuring how expert witnesses are actually used in court, this study offers important new data about what makes expert effective and suggests that some commonly held beliefs about experts are misguided. In doing so, the data establishes an important new baseline for measuring expert witnesses in court, updating and expanding on prior research in the field

The Gatekeeper’s Toolbox: A Survey on Judicial Handling of Expert-Reliability Motions

In the Daubert decision of 1993, the Supreme Court directed federal judges to screen expert evidence for reliability before admission, rejecting the “general acceptance” standard of Frye v. United States.1 To ensure the appropriate level of reliability to admit expert testimony, the Court suggested a series of substantive factors for judges to analyze, such as peer review and the Frye “general acceptance” standard. Several years later in General Electric v. Joiner, Justice Breyer also suggested procedures judges could use to decide gate keeping questions.2 In the years after Daubert, researchers began to evaluate how judges perform this Rule 702 reliability screening. One group of studies considered the frequency of expert-reliability challenges, finding that litigants raised reliability issues more often after Daubert than before. Other studies considered the methodology of expert gate keeping by analyzing the procedures used by judges in deciding reliability questions. Others chose to focus on the substantive factors that judges consider when gate keeping expert testimony, finding that some of the Daubert factors were more useful than others

Utilization of Rules 614 and 706 in Fact-Finding: A Recent Study of Midwest Judges

J udges who are deciding contested issues in their courtrooms have an immense toolbox of potential methods at their disposal. Many of these are commonplace methods, used on a day-to-day basis for common issues in litigation. Pretrial conferences come to mind as an example in this regard. But for those issues involving complex science, a judge has choices to make on how to perform his or her important gatekeeping role, and those gatekeeping tools may be more rarely used. In 1993, the United States Supreme Court chose to review admissibility of scientific evidence in the landmark case of Daubert v. Merrell Dow Pharmaceuticals.1 In that case, the court declared that district court judges must act as a gatekeeper for admissibility of scientific evidence, to determine the relevance and reliability of expert evidence before its admission. Further caselaw affirmed and expanded the original Daubert holding, ensuring trial judges had maximum flexibility to perform the gatekeeping function.2 So what tools do judges actually use to perform their gatekeeping role, and how often do they do so? During those years when the Court was scrutinizing scientific evidence in Daubert and other related decisions, several studies examined the issue of gatekeeping methodology in both state and federal courts. These studies relied on surveys performed before the end of the Daubert trilogy, at a time when many states had either recently shifted their standard to Daubert or had yet to do so. Considering the age of the studies, updated analysis seems timely