Expertise and the Daubert decision.

• Author: Allen, Ronald J.
• Position: Daubert v. Merrell Dow Pharmaceuticals, Inc. - Criminal Law

Trials in the Anglo-American tradition were originally the means by which conventional disputes were resolved. The original mode of trial gathered together individuals with knowledge of local affairs to decide notorious disputes. The existence of disputes was part of conventional knowledge, as was the knowledge necessary to resolve them. The local conventions determining borders or access to bodies of water or the proper maintenance of property were truly conventions, and thus known throughout the relevant community. As times changed, various forces coalesced to force modification in the self-informing aspect of juries, but the result was modification rather than rejection. Contrary to today's conventional beliefs about legal decision making, juridical decision makers, judge or jury,(1) are still almost exclusively self-informing. The current belief that fact finders must come with a blank slate is false in every respect save one.

The belief is false in the technical sense that knowledge about the litigated event is typically not a disqualification; only knowledge that would qualify a person as a witness disqualifies the person as a juror.(2) The conventional belief about the necessary ignorance of jurors is false in a deeper sense. Juridical decision makers come to trial with a vast storehouse of knowledge, beliefs, and modes of reasoning that are necessary to permit communication to occur simply and efficiently. Everyone in court is expected to speak the same language; rarely do trials have lexicographic diversions to elaborate on the definitions of the words that witnesses, lawyers, or judges use. Everyone is expected to have a firm grip on the nature of reality and the existence of causal relationships (whatever Hume might have thought of the justification of such beliefs). Everyone is expected to be able to engage in orderly reasoning, whether deductive, inductive, or even on occasion abductive, and to be able to perceive the relationship between evidence and propositions, between cause and effect. Everyone is expected to be able to understand what the witnesses say, to perceive the connection between what they say and the matters under investigation at trial, and to make reasoned judgments about the credibility of witnesses. Less well known, everyone is expected to be able to fill in the evidentiary gaps at trial that result from many factors (including that individual witnesses always know more than they can express) by drawing inferences based on one's own experiences to give flesh to the bones of testimony.

Over time litigated matters became more complex, and the gap of ignorance separating the fact finders from the witnesses increased. More and more frequently what witnesses said had to be explained to make it understandable. A case may depend on the conventions of a certain business or industry rather than the conventions of the society at large, and jurors will often need to be informed of those conventions. A witness may not speak English, and thus the testimony must be translated.(3) The case may involve a technical vocabulary that, like a foreign vocabulary, must be made accessible to those lacking the technical training. As such cases became more common, we continued to adhere to the traditional model of fact finding. The parties were merely obligated to explain a little bit more, to put the juror in a position to understand what the witnesses were saying, and thus to decide the case in an intelligent fashion.

Are there any cases that cannot be accommodated within the traditional model? Do some cases present issues for decision that defy the ability of fact finders to understand them? Perhaps the answer to these questions is "no." Perhaps with enough time and resources, jurors can be sufficiently informed so that they can decide intelligently all litigated cases. Yet now another set of questions lurks in the shadows: At what cost is this knowledge purchased, and is the bargain a wise one? Would resources be better used elsewhere? Who should decide on what "better" use of resources may be available? These are the questions that the Supreme Court faced, whether consciously or not, in the recent case of Daubert v. Merrell Dow Pharmaceuticals, Inc.,(4) and they are the questions that I address in this essay.

The answer to the first question, whether there are cases that defy the ability of fact finders to understand them, seems clear enough upon reflection, even though it may be counterintuitive, and the answer is surely "no." The deficits of juridical fact finders are not cognitive; they are informational. Judges and jurors lack knowledge about various branches of human inquiry, as we all do, but there is little reason to believe that, with instruction, they could not adequately master the relevant fields.(5) Ironically, and again counterintuitively, jurors, because they sit on juries, are probably better able to master the relevant subjects than judges. The issue is not whether every single juror understands adequately every single issue, but whether the jury adequately understands.(6) With the wealth of talent almost always contained in even a randomly selected group of six to twelve individuals, it would be a remarkable case that truly defied their collective cognitive abilities. I do not deny that such a case might occur, but I do deny that such a low probability event is of much significance to social planning.(7)

This argument may not be just counterintuitive; it may appear to be disproven by common experience. Many ideas, especially in their youth, are extremely difficult to grasp. A good example is Einsteinian relativity theory, which was understood by only a small handful of individuals for a considerable time following its creation. But, I don't know of any case that required for decision an understanding of general relativity theory, and I know of no analogous case, one involving string theory, for example. Perhaps there is one, but again it would be the exception that proves the rule.(8)

General relativity theory is not the only difficult idea to grasp. Many individuals find calculus and probability theory obscure, for example, and both are often integral to trials. But many people do not find mathematics at this level obscure. In determining whether a jury possessed the necessary tools for rational decision, again the question is not whether all jurors do; it is whether the jury does. Nor is the question whether the jury already knew enough about calculus or probability; it is whether they could learn enough. Moreover, if a case posed an issue requiring a certain technical or mathematical capacity, that capacity could be a condition of serving on the jury. This would make the seating of a jury no more difficult than doing so in a notorious case.

The real objection to this argument is not that it is wrong; the real objection is that it would be too costly. I certainly agree that educating jurors adequately to decide intelligently cases with complicated issues would be costly. In many instances, the jurors would literally have to go to school, or at least have the school brought to them. One can easily imagine cases that would require months of instruction before jurors would be competent to decide intelligently. It is, however, much more difficult to find cases that would defy this educational process, which brings us full circle.

But the circle produces a paradox. There are many cases that do not involve scientific or technical questions but do require months of instruction so that the jury can understand them. In these cases we do not permit juror deference to juridical outsiders such as experts; we require the parties to connect the case through evidence to the experience of the jurors. Why, then, do we flirt with, and perhaps adopt, a more deferential mode when something comes into court labeled "expert testimony"?(9) If I am right, the cognitive questions are highly similar, even if not identical, in both sets of cases. The economic questions are truly identical. In all cases, parties must take into account the costs of presenting their cases, and responding to their opponents' cases, in determining their optimal strategy. This variable is independent of the conventional/expert distinction. The economics of public subsidy are also highly analogous if not identical. All trials have public subsidies, such as the cost of the courthouse and various governmental salaries. From the public point of view, a subsidy to a six-month trial that involved educating the jury about calculus is no different from the subsidy to a six-month bank fraud trial. If there is a difference, it favors the subsidy in support of the instruction in calculus, as that might lead to social benefits that are very difficult to see flowing from the educational effort directed toward the jury in a bank fraud case.

Perhaps the difference between complex conventional cases and cases that call for expert testimony is that the latter demand expertise that is missing from the former. People do possess specialized nonconventional knowledge about mathematics, economics, toxicology, oncology, and so on. Perhaps no one possesses expertise about complex conventional cases such as bank fraud or criminal conspiracies. Perhaps so, but this argues not for our current system of presenting competing versions of expertise at trial, but instead for a form of judicial notice.

If expertise exists and can be identified with the certainty that the existence of Lake Michigan outside my window can be, trials should not pause over it. Its lessons should be taken as true, and the fact finder so constricted. Whether in any particular case there is expertise in this sense should be easy to determine by judges or legislatures, and its implications mined for what they are worth. We would defer to such knowledge just as we defer to the indisputable knowledge that Lake Michigan is outside my window. We would not litigate whether...