Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases since the Daubert Decision

By Lloyd Dixon; Brian Gill | Go to book overview

2
CONCEPTUAL ANALYSIS OF DAUBERT'S IMPACT ON DISPOSITION OF
CHALLENGES EVIDENCE AND TYPE OF EVIDENCE CHALLENGED
Our study looks for sign of Daubert's Impact by comparing the changes in the disposition of challenged evidence and the type of evidence challenged before and after the decision. In this section, we examine conceptually how Daubert might affect the disposition of challenges and the type of evidence challenged in order to provide a framework for assessing the empirical information presented in Sections 4 through 7.We first describe the roles of the various parties involved in introducing, challenging, and evaluating expert evidence. We then explore how Daubert might change the proportion of both challenged evidence found unreliable and challenged evidence excluded over time under different assumptions about the behavior of the various parties involved. Finally, we explore how Daubert might change the type of evidence that is challenged and the types of cases in which challenges are brought
2.1 PARTIES INVOLVED IN PROPOSING, CHALLENGING, AND ASSESSING
EXPERT EVIDENCE
Plaintiffs and defendants introduce expert evidence to bolster their case. Whether and what type of expert evidence is introduced depend on expectations about the probability that the evidence will be challenged and, if challenged, the probability that it will be admitted. The decision to propose expert evidence also depends on expectations about the effect the evidence will have on the outcome of the case if it is admitted and the costs of preparing expert evidence and fending off challenges.Parties that challenge expert evidence presumably also weigh the cost of a challenge against the expectation that the challenge will succeed and the effect that exclusion of the evidence will have on the outcome of the case. The expectation that the challenge will be successful is based on perceptions about the standards judges apply in evaluating expert evidence and experience with similar challenges in the past Challengers must also decide the basis on which to challenge the evidence.1Judges decide whether challenged expert evidence should be admitted. They may use three major criteria in making tills decision:
Reliability: Is the evidence genuine, valid knowledge from the expert's field?
Relevance: Will the evidence assist the trier of fact in determining a fact at Issue?
____________________
1
The incentives facing parties proposing and challenging expert evidence are analogous to those that enter the decision to settle out of court or go to trial. For a discussion of these incentives,, see Cooter and Marks, 1982.

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