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FDCC Pillars
H. Mills Gallivan Gallivan, White & Boyd Greenville, SC
How many clients would you have if you consistently failed to follow the correct legal analysis? The report card below demonstrates that in 2020, the United States district courts failed to cite the correct standard for admissibility of expert evidence in a stunning 65% of the
is a follow up to LCJ’s September 1st comment submitted to the Advisory Committee on Evidence Rules, which is available here.
The FDCC also submitted comments to the Advisory Committee, which you can read on the FDCC n Demand webpage. This comment argues persuasively for an amendment to Rule 702 and LCJ encourages you as defense lawyers to submit your comments to the Committee.
The following summarizes some of LCJ’s other significant projects:
Privilege logs: LCJ is proposing an amendment to the Federal Rules of Civil Procedure that would modernize the procedure for withholding otherwise discoverable information under claims of privilege. The proposed amendment establishes a presumption in favor of
cases where Rule 702 issues were involved.
These concerning statistics come from FEDERAL RULE OF EVIDENCE 702: A ONE-YEAR REVIEW
AND STUDY OF DECISIONS IN 2020, which is an LCJ research project published on September 30, 2021. This study reveals that the United States district courts are highly inconsistent in applying the proper standard for admissibility of expert evidence under Rule 702.
This is very troubling, especially when one considers the gravity of the consequences in the context of federal court litigation. See the full report here. On behalf of the LCJ and the defense bar, I wish to thank the authors, Kateland R. Jackson – Fellow, Lawyers
for Civil Justice, Associate, Shook Hardy & Bacon
L.L.P. (Washington, DC) and Andrew J. Trask - Of Counsel, Shook Hardy & Bacon L.L.P. (Los Angeles). These lawyers personally reviewed 1059 federal
rulings from 2020 to extrapolate this incredibly useful and meaningful data from cases in which the trial judge admitted, partially admitted, or denied expert testimony using an analysis under Rule 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or both.
Lawyers for Civil Justice is leading the charge for
an amendment to FRCP 702 which will clarify the pervasive misunderstandings regarding the standard for admissibility of expert evidence. It is coincidental, but not insignificant, that I am writing this on the
same day as the LCJ “Don’t Say Daubert” webinar. If you were not able to participate in the live “Don’t Say Daubert” webinar you can watch a video replay at www.DontSayDaubert.com. This seminar expounds on the widespread misunderstanding of expert evidence standards in United States district courts. This webinar
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ISSUE
NUMBER PERCENTAGE WRONG WRONG
FEDERAL COURTS APPLIED THE INCORRECT STANDARD
882 TIMES IN 1,059 RULE 702 DECISIONS
*Fail to cite preponderance of the evidence standard
686 65%
Mistakenly state Rule 702 has a “liberal thrust favoring admissibility”
135 13%
Inconsistently cite both preponderance and liberal thrust standards
61 6%
TOTALS
882 N/A
*Preponderance/no preponderance splits occur in 57 judicial districts (more than half of all districts) and encompass every appellate circuit.