In 1992, two well-known scientists testified that PCBs could have accelerated cancer in an electrician who had bathed daily in a "PCB-dielectric soup." Although they had carefully described their data, methodologies, and scientific reasoning, in 1996 the US Supreme Court ruled that their detailed explanations were insufficiently meticulous and therefore inadmissible. Strangely, what is scientifically valid may not be legally "reliable" and "admissible."
Lawyers seeking to destroy an expert's credibility are taking advantage of the new "Daubert-Joiner" standards to exaggerate (or invent) defects in an expert's background or testimony, arguing, e.g., the witness is "unqualified," uses methodologies that aren't "generally accepted," relies on theories that weren't "peer reviewed" or data that isn't "statistically significant" (or doesn't show a "doubling" effect), or draws inferences "too far removed" from the facts.
Lawyers who fail to anticipate these attacks can lose their case -- and their fee. Experts who aren't prepared to defend themselves might lose more: unscrupulous lawyers may use one judge's negative ruling to brand them as "notorious junk scientists," which could seriously damage their reputations and careers.
Unfortunately, most lawyers know less about science than scientists know about the law, and they're often incapable of helping scientists defend themselves against legal "traps."
This presentation will explain the new "Daubert-Joiner" standards and provide concrete suggestions on how to satisfy them. Topics to be discussed include: what's needed in a written report, how to defend against attacks during deposition or courtroom testimony, and how to rebut criticism from opposing experts and lawyers.
Learning Objectives: At the conclusion of the presentation, session participants who anticipate serving as expert witnesses in court will understand what they need to do to assure that they are not disqualified as "junk scientists" and to avoid a ruling that their expert testimony is legally "unreliable," "inadmissible," and/or "insufficient." The focus will be on what must be included in an expert report to meet the new "reliability" standard, the difference between expert methodology (which is subject to court scrutiny) and expert conclusions (which are not), how far experts must go to demonstrate that the conclusions they reached used "scientific reasoning," how to translate sound science for scientists into admissible sound science for judges, and how to avoid the pitfalls of erroneous preconceptions lay judges bring to scientific inquiries
Keywords: Evidence Based Practice, Environmental Exposures
Presenting author's disclosure statement:
Organization/institution whose products or services will be discussed: Our lega/consulting practice, in which we assist lawyers and witnesses bridge the gap between law and science, so that the experts will not be labeled as "junk scients" and so that the lawyers won't see their witnesses (and their cases) go down the tubes
I have a significant financial interest/arrangement or affiliation with any organization/institution whose products or services are being discussed in this session.
Relationship: My law firm and my consulting practice