Thursday, October 12, 2006
The U.S. Supreme Court's pronouncements on the standards that should govern the admission of scientific and other expert testimony, what is commonly referred to as the Daubert Trilogy, has produced substantial legal commentary and a growing body of empirical research. Most of that research focuses on decisions by courts on Daubert challenges; while there is some speculative discussions on the broader impact of Daubert, there is minimal empirical research assessing the impact of Daubert more broadly on the litigation process. Drawing on a combination of observation in a law firm and a series of interviews with practitioners, this paper describes the process of decision making about Daubert related issues. The conclusion drawn from the analysis is that Daubert has become a routinized aspect of the litigation process in a range of cases, few of which deal with the kind of controversial or innovative science at the heart of the original Daubert case.
This seems generally unshocking, but worthwhile confirmation that most of Daubert's effects aren't in big controversial cases. Of course, the outcome of the non-big non-controversial cases are likely the same in most instances under pre-Daubert approaches -- it's in the marginal cases that Daubert would presumably make a difference (if it does at all).