Friday, May 16, 2014
Last month, I posted a graphic that challenges laypersons to critically assess the social science evidence they cite. As lawyers, we have our own research methods, testing primary sources through syllogistic and analogistic reasoning, among others. Few of us without advanced degrees in other fields apply any of our liberal arts training in scientific methods to our practice.
As appellate lawyers, we are nearly always limited to scientific evidence admitted at trial, but in very special circumstances, we may see an opportunity to use "Brandeis" evidence in socially charged cases. You may be as surprised as I was to learn that even Louis Brandeis himself has been critiqued in recent years over the use of questionable studies in his famous brief from Muller v. Oregon.
In order to use social science research--or any science research--ethically and soundly, lawyers should educate themselves about the scientific method, the various forms of research, and common pitfalls. The same concern applies to appellate advocates who handle cases with a good deal of social or "hard" science evidence introduced at trial. It is all too easy to draw unsupported arguments from research that was not intended to provide conclusive proof. And as the opposing party, even if the trial counsel and experts did not see every chance to expose flaws in the opponent's research-based testimony, appellate counsel may be able to clarify the problems for the higher court.
When examining methodology, it helps to understand the differences between qualitative and quantitative study. Very generally speaking, qualitative research tends to work with smaller samples and to study topics where there is no possible "right" answer due to subjectivity in culture, gender, class, etc. Quantitative research tends to work with much larger sample sizes and with questions that better lend themselves to objective measurement. As you might guess, many studies work with hybrids of the two forms, and each type has several sub-categories of research methods. Finally, before dismissing the use of qualitative research in legal cases, keep in mind that just because a large, statistically valid quantitative study does not exist to support a client's position does not mean that other forms of research are unpersuasive. And conversely, just because qualitative studies deal with objective conclusions and statistical samples does not mean that they do not have a number of pitfalls of their own. Several of them are mentioned in last month's graphic.