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Associate Justice Stephen G. Breyer once said “Scientific issues permeate the law,” while addressing the American Association for the Advancement of Science (AAAS). “Courts review the reasonableness of administrative agency conclusions about the safety of a drug, the risks attending nuclear waste disposal, the leakage potential of a toxic waste dump, or the risks to wildlife associated with the building of a dam. Patent law cases can turn almost entirely upon an understanding of the underlying technical or scientific subject matter. And, of course, tort law, assessing civil liability for injury or death, often involves difficult determinations about the degree of risk of death or injury associated with a chemical ingredient of, say, a pesticide or of any other product.” The problem is that judges and juries are not, and cannot be expected to be, experts on every aspect of the constantly changing panoply of science and technology. Yet, they are expected to continually make decisions, either in their roles as triers of fact or as Daubert “gatekeepers,” on issues where even the experts disagree.
In this article we will take a look at four trends designed to improve judges’ abilities to make better decisions on technical matters.
The CASE Project
Federal Rule of Evidence 702 provides that “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue…” an expert may testify. While such experts are normally designated by the parties, Rule 706 allows the court to appoint its own independent expert to assist it in understanding the issues. Rule 706 is rarely used, however, a noticeable exception being Judge Jackson’s retention of one in the Microsoft antitrust case. Two panels were also used in the breast implant litigation, and a 2001 report on their use is available from the Federal Judicial Center (www.fjc.gov/public/pdf.nsf/lookup/NeuSciPa.pdf/$file/NeuSciPa.pdf).
To make it easier for judges to retain their own experts, the National Conference of Lawyers and Scientists, established jointly by the AAAS and the American Bar Association’s Science and Technology Section, initiated the Court Appointed Scientific Experts Project (CASE) (www.aaas.org/spp/case/case.htm). “The judges don’t use this authority to appoint experts, and one reason they don’t is that they don’t know where to go for the expertise,” says Deborah Runkle, project manager for CASE. “We think they will feel comfortable about coming to us because they can say they are going to an organization with tremendous prestige and no vested interest in the outcome of a given case.”
When a judge contacts CASE for a recommendation, CASE will provide them with one or more possible experts which have been approved by its Recruitment and Screening Panel (www.aaas.org/spp/case/panel.htm) or recommended by a scientific society.
After several years of development CASE started operating in February. According to Runkle, several judges have requested recommendations, but she is unable to disclose any details until the appointments have been made part of the public record. She also said that in several cases, when the parties found out that the judge had contacted CASE, they went ahead and agreed upon their own impartial expert to advise the judge.
As is typical in the adversarial system, not everyone is pleased with CASE. The ATLA, cited its disagreement several years ago, and has repeated it since, stating that “there is no demonstrated need for court-appointed experts, that ‘neutral’ experts do not exist, and that the appointment of sanctioned experts can undermine the constitutional decision-making role of judges and juries.” (Trial magazine, August 1999). Further information on ATLA’s position is available in its position paper “Myths and Misconceptions About ‘Neutral’ Experts.”
Educating the Judges
The second action is to increase scientific training for judges. While many engage in study on their own, the state and federal court systems also conduct their own training programs.
In 1994, following the Daubert decision, The Federal Judicial Center (FJC) issued all federal judges a copy of the Reference Manual on Scientific Evidence, the second edition of which came out last year. The FJC also conducted live and remote training sessions for 48,000 participants last year, primarily through its Federal Judicial Television Network (FJTN). The FJTN produced 91 programs, 45 of them interactive, which were satellite downlinked to over 280 courthouse locations.
State judges are also getting additional scientific training. Florida’s College of Advanced Judicial Studies is offering a three-day course this September on Genetics in the Courtroom and the National Judicial College (www.judges.org) has a class titled “Scientific Evidence and Expert Testimony.”
A third option is setting up specialized courts, or assigning particular judges, to handle certain types of cases. It is not a new concept: Delaware’s Chancery Court was founded in 1792 with its English predecessor dating back to the 1300s. The last few decades have seen further specialization in courts so that there are now national separate courts: Veterans Appeals, International Trade and Federal Claims. Locally the one-room courthouses have divided into traffic, family, juvenile, criminal, rent, mental health, probate, homeless, teen, drug and other types of courts.
While most of these types of courts are designed to make justice accessible in simple matters, states are also consolidating their complex cases. The Chief Justice Deborah Poritz, for example, has designated all Mass Tort litigation to be handled in Middlesex County, where they are handled by two judges and two special masters. There are currently thousands of cases in nine topics being litigated there.
New York and North Carolina also have separate business divisions in their courts and Maryland is reportedly developing something similar. Across the country, California last year established Complex Litigation Centers in six counties with specially trained judges and additional support personnel.
Michigan is also proposing to get into the high-tech litigation arena by setting up a “Cyber Court.” The court was outlined by Governor Jim Engler in his January State of the State address, and is currently with the legislature as House Bill 4140. Per the legislative analysis, the court would be established “for cases involving technology and high-tech businesses, where the cases would be tried via computer rather than in a physical courtroom. Briefs could be filed online, evidence viewed by streaming video, oral arguments delivered by teleconferencing, and conferences held by e-mail.
“Lawyers would not have to be in Michigan or even be licensed to practice in the state. Cases could be ‘heard’ at any time, and judges would be trained to understand the complex issues involved in technology disputes.”
Issues such as subject and personal jurisdiction will still have to be determined but, if successful, it will offer a state-level equivalent to the U.S.D.C. Northern Virginia’s “rocket docket.” In addition to the governor, both the Michigan Manufacturers Association and the Michigan Trial Lawyers Association have given their support. If passed, the bill will take effect on October 1, 2002.
Going Outside the System
If none of the above options can get you a judge knowledgeable in the field of the case, there is always the option of hiring a judge with the expertise you need. JAMS or the American Arbitration Association have hundreds of retired judges available with specialties ranging almost from A to Z (Accounting to Workers’ Compensation).
No matter how skilled the judge, however, there is still no guarantee of a scientifically correct decision. As noted in Daubert, “There are no certainties in science.” Rather, it is a field with as many opinions, theories and disputes as the field of law itself.
“We must search for law that recognizes scientific validity,” said Breyer. “That search is not a search for perfection, nor is it even a search for scientific precision. A judge is not a scientist and a courtroom is not a scientific laboratory. They must aim for decisions that, roughly speaking, approximately reflect the scientific ‘state of the art’.”