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Tuesday, June 27, 2006

Small Beer: Getting Judges Comfy with Science

My second post at Point of Law is up now, addressing some possible ways to improve the decision-making of judges in the context of scientific evidence.  Comments here are open and welcome.

http://lawprofessors.typepad.com/tortsprof/2006/06/small_beer_gett.html

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Comments

Interesting post.

On finding assistance for the judges, one problem, in addition to funding, is that the existing rules, in federal court at least, weren't particularly shaped with such assistance in mind. There are mechanisms for court-appointed experts, but Fed. R. Evid. 706 pretty clearly contemplates a testimonial function for those. There are also mechanisms for appointing special scientific masters, but Fed. R. Civ. P. 53 imposes significant procedural constraints. And what many judges may want or need is not another decision-maker, or another witness, so much as a confidential advisor -- the functional equivalent of a clerk with a strong scientific background.

Your "primer" idea has much to commend it, and it is probably feasible even in many middle-sized cases. In particular, I think the intimidation factor associated with specialized technical vocabularies would be hard to overstate. I was involved in one case where the parties could otherwise agree on almost nothing, but did manage to stipulate to a technical glossary, so that when an expert talked about confidence intervals, or certain other conceptual widgets, the judge could quickly determine what they were talking about, without having to ask. I think the judge probably found it helpful. I know the lawyers did.

Posted by: Peter Nordberg | Jun 27, 2006 11:05:38 AM

I should have made it clear (and will try to do so) that most of what I'm talking about this week can't be implemented by judges by themselves. Statutory and/or rule changes will be necessary for just about any of it.

My judge ends up with a lot of patent cases and, if memory serves, regularly asks the parties to do a primer. Seems to work reasonably well.

Posted by: Bill Childs | Jun 27, 2006 11:47:34 AM

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