Amy Langerman (Az State Bar #009174)
Law Offices of Amy G. Langerman
951 Coronado Avenue
Coronado, CA 92118
619-437-4579 [email protected]
Because the existing version of Arizona Rule of Evidence 702 works well, I oppose the proposed changes to that rule. I have been practicing law since 1983, and have tried scores of civil trials, usually representing plaintiffs, but occasionally representing defendants. I am a past president of the Arizona Trial Lawyers Association, past president-elect of the Arizona Employment Lawyers Association, and a former Judge Pro Tem for the Maricopa County Superior Court.
Of the cases that I personally tried, or over which I presided as a judge pro tem, most included expert testimony. Under the existing standards (particularly Rules 104(a), 105, 403, and 702) the trial judges in front of whom I have appeared have always been able to insure a fair trial for both sides. Proponents of change grouse that the current rules “have not worked well.” But they cite not even one case where a “kook” or “junk scientist” placed unreliable testimony before an Arizona jury. Given the high quality of our trial judges, I’ll wager that it has never happened—and never will.
I also base my comments on my perspective as a member (and chair, for two terms) of the Amicus Curiae Committee of the American Association of Justice (formerly Association of Trial Lawyers of America). That experience began in 1987. The Committee receives requests from lawyers across the nation seeking help in resolving hard appellate issues. Those requests reveal that, since the federal courts and some state courts have adopted Daubert, many trial judges have used it to reject expert testimony tha4t would have been admissible under the Frye standard. The result has been that many meritorious cases never reach juries. Indeed, a cottage industry has developed just to litigate Daubert issues.
Although Judge Susan Bolton testified before the rules committee that, in her experience, there has not been a rash of Daubert hearings in her court, that may be in part because of the political desire to get the state rule changed first. Professor Thomas Mauet testified that adopting Daubert would result in a “proliferation of hearings.” See Minutes of 10/15/10 Meeting of the Ad Hoc Committee on Rules of Evidence at page 2. My experience in dealing with appellate requests from states that have unwisely adopted Daubert confirms the wisdom of Professor Mauet’s prediction. In those states, large law firms litigating cases that are expert-dependent have designated Daubert specialists who rush in to raise Daubert challenges even when novel scientific evidence is not involved. Those cases include run-of-the mill cases with routine medical-malpractice causation issues and other cases that have been tried for years without controversy under Frye.
Nationally, Rule 702 issues are some of the most prevalent, contentious ones coming to our Amicus Curiae Committee. My fear is that, under the “if you build it, they will come” effect, high-priced, unscrupulous Daubert specialists will invade Arizona state courts. They will then raise “reliability” challenges in expert-dependent cases simply because they can charge vast sums for their Daubert services by promising to skew case outcomes. In Arizona, the Daubert specialists will justify their costly new “case within a case” litigation strategy through the “new rule.” They will argue that the “new rule” has “changed the judicial landscape" and fundamentally “upped” the standards. (Of course, before the Arizona rules committee, the Daubert proponents have claimed that we simply need the new rule to be uniform and the results will be the same. If the results will be the same, why change?)
The end result will be adding needless hurdles and costs to litigation in a state where our judges and juries have always fairly and rationally applied the existing standards. Adopting Daubert will adopt Daubert’s misbegotten progeny (as inconsistently interpreted across the country). That alone will generate controversy, cause confusion, create inconsistency, inflate costs, and increase litigation. Again, no one has ever identified even one Arizona case where the existing standards allowed unreliable or junk science into evidence. Adopting a Daubert standard will take many meritorious cases from juries because trial judges will now believe that they have a new duty—under a new rule—to apply a different standard, and become the sole credibility-and-reliability oracles.
I understand that there are some perceived issues presented by attorneys working in the criminal-justice arena. I have no direct, personal knowledge about Rule 702 issues in criminal cases, although I have followed many exoneration cases that the Innocence Project has pursued across the nation. What I can say is that if this Court believes that there is some problem in criminal cases, then the solution is to fix the problem there and not to fix a problem absent from civil cases.
If there is a problem, it is not admitting “junk science.” The problem is biased or incompetent experts misapplying “good science.” And that is a problem that adopting Daubert will not solve in criminal cases. Instead, Daubert will exacerbate the situation in criminal cases, where the issue is largely the expert-funding disparity between the government and private defendants. Changing Rule 702 will not end the government’s tremendous financial advantage. As I read the cases and the controversy, much of the so-called “unreliable” testimony would still appear in criminal cases under either Daubert or Frye. That is so because the problem is not the science but determining what should be seen as “reliable” science when presented by an otherwise “questionably-reliable” hired gun. What criminal defense lawyers need is funding to retain their own experts to review evidence and present testimony to the jury. That will let the jury determine the fundamental “who should we believe” question. Indeed, in my personal experience, that is what routinely occurs in expert-dependent, civil litigation cases.
Finally, I respond to the uniformity argument of those who support adopting Daubert. Being the same as everyone else is not a reason, by itself, to change a rule that has served us well. Former Chief Justice Stanley Feldman spoke before the Rules Committee and noted that 15 states have adopted Frye, 25 states have adopted Daubert, and 6 states have adopted a hybrid. Minutes of 9/17/10 meeting of Ad Hoc Committee on Rules of Evidence at page 3. Professor Mauet added that “four of the five largest states are Frye states.” Minutes of 10/15/2010 meeting of Ad Hoc Committee on Rules of Evidence at page 2. With Arizona’s unique constitutional framework, there is no basis to change this rule simply to be “uniform.” After all, in important and mostly positive ways, Arizona is not uniform with the rest of the nation. And, respectfully, there appears to be no uniformity nationally on this issue in any event. Since no objective evidence suggests a “problem” in Arizona that Daubert will fix without creating even more problems, this Court should follow those on the rules committee who ask that the Court do nothing with respect to Rule 702.
I oppose both the proposed change adopting Daubert and the proposed Mauet rule. Arizona does not need a cottage industry of Daubert lawyers churning cases with costly, time-consuming Daubert hearings. Guided by merit-selected judges and our state’s unique constitution, our juries can ensure efficient, fair trials. Arizona juries have been determining witness credibility and reliability for 99 years, even for experts. We should let them continue.