Pseudo-scientists at the gate: the new FJC manual will help.

• Author: Gay, Terry Christovich
• Position: Federal Judicial Center manual for scientific and expert testimony - Coping with Science

THE U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals Inc.(1) has reshaped the domain of scientific and expert testimony. In order to illuminate a trail through this vastly altered and rapidly changing terrain, the Federal Judicial Center published the Reference Manual on Scientific Evidence in 1994. The purpose of the manual, as stated by William W. Schwarzer, director of the FJC, in the introduction, "is to assist judges in managing expert evidence, primarily in cases involving issues of science a or technology."

In an increasing variety of cases, the courts, as well as attorneys and juries, are faced with complicated issues involving the discovery and admissibility of modern scientific techniques, most of which are beyond the ken of the bench and bar, as well as that of jurors. In the introduction, Judge Schwarzer, who also is a senior U.S. district judge for the Northern District of California, refers to a 1993 report of the Carnegie Commission on Science, Technology and Government, which states:

The courts' ability to handle complex science-rich

cases has recently been called into question,

with widespread allegations that the judicial system

is increasingly unable to manage and adjudicate

science and technology issues. Critics have

objected that judges cannot make appropriate decisions

because they lack technical training, that

jurors do not comprehend the complexity of the

evidence they are supposed to analyze, and that

the expert witnesses upon whom the system relies

are mercenaries whose biased testimony frequently

produces erroneous and inconsistent determinations.

This undermining of the public's confidence in the judicial system triggers a need to better prepare judges and lawyers to confront the complex issues presented in modern litigation. Daubert underscores the need for improved understanding of these complex issues, and the manual was prepared to fill this need.

The manual provides quick access to information to enable judges to engage in dialogue with counsel and their experts regarding evidentiary issues, but it is not a textbook on admissibility.(2) The manual promotes judicial involvement in issues regarding expert scientific evidence at the pretrial stage and encourages judges to meet with counsel and proposed experts to focus inquiries and identify the bases of disputes between experts. The authors hope that ultimately this dialogue will lead to more rapid resolution of disputes.

In an article in For the Defense, Mark L. Austrian stated that the manual is "critical reading for all trial lawyers" and noted its importance as a tool for structuring litigation, identifying important issues to be resolved prior to trial and learning about the particular scientific issues covered.(3) He opined that courts will use the manual as the reference guide it is designed to be and "not as a substitute for independent judicial analysis."

WHAT IT CONTAINS

The manual has three main sections. The first, entitled "Overview," consists of two chapters: "Management of Expert Evidence." by Judge Schwarzer, and "Evidentiary Framework," by Margaret A. Berger, associate dean and professor of law at Brooklyn Law School.

The next main section is entitled "Reference Guides" and includes chapters on epidemiology, toxicology, survey research, forensic DNA evidence, statistics, multiple regression, and the estimation of economic losses in damage awards. The guides are prepared by a variety of lawyers and scientists.

The final main section is entitled "Extraordinary Procedures" and includes chapters on court-appointed experts and special masters.

Throughout the manual, frequent references are made to the third edition of the Manual for Complex Litigation and the Manual for Litigation Management and Costs and Delay Reduction. Both should be read as companions to the reference manual.

MANAGEMENT OF EVIDENCE

1. Before Trial

   Judge Schwarzer's chapter on the management of expert evidence advocates discourse among courts, counsel, parties and their experts and prompts courts to enforce the initial conference prescribed in Rule 26(f) for developing a discovery plan, as well as the subsequent conferences mandated under Rule 16. These conferences should be used to define the issues forming the basis of the litigation. Since it is written for judges, the manual refers to actions to be taken by the court, but one can readily substitute the word "attorney" for "court" and "judge," as the advice provided to the bench also is invaluable to the bar.

   At the conferences, the court is encouraged to defuse animosity and to focus on elucidation of the issues, not on counsels' arguing or jostling for position. The manual stresses that judges need to set a civil tone at the conferences and maintain that demeanor throughout the litigation. In addition to the conferences, the manual advises that the parties should meet in person, and it further suggests that the court and the parties take advantage of the seldom-used, non-traditional means of managing litigation provided for in the Federal Rules of Civil Procedure.

   Here, the manual recommends that the court retain independent experts who are not prospective witnesses to help explain complicated areas of scientific evidence in a neutral fashion, that the court work to subvert dilatory tactics of counsel by forcing them to name experts and disclose the nature of their testimony early in the process, and, to that end, that the court enforce Rule 26(a)(2) and require the parties to make detailed written disclosures regarding their retained experts' testimony. While Rule 26 allows the parties to stipulate to a later exchange of these disclosures, the manual suggests that the court overrule such stipulations.

   Enforcing prompt disclosure of expert testimony under Rule 26 will discourage the hiring of experts who are not necessary to the litigation, narrow the issues in dispute, aid in taking (or obviate the need for) depositions, reduce surprises at trial, provide the court and the...