I�m going to start with relatively small beer: getting judges better-educated about science.
Yesterday I discussed some of my experiences in a variety of jurisdictions in which the judges were seemingly indifferent to getting the science right. With some notable exceptions, I do not think that was because they were uninterested in the jury reaching an accurate conclusion, or because they were in anyone�s pocket -- the decisions reached were too random for that. And it certainly wasn�t because they were incapable of understanding the issues. Instead, I think it was because they simply didn�t know how to evaluate the scientific evidence presented to them, and didn�t think they had the tools to do so.
That�s not a criticism. Last week I led a discussion of torts with a couple dozen Massachusetts state trial court judges. They have no law clerks and a daunting caseload, and frequently the trial is the first time they�ve seen a case, as it is random whether the trial judge handled any pretrial matters. It�s no surprise that they aren�t ready for a full-on analysis of the science in any sort of case.
Further, Daubert and its progeny expect courts to be able to evaluate an expert�s methodology on a number of criteria: if it has a known and acceptable error rate, if it has been subjected to peer review, if it is generally accepted, and so on, but each of those issues is quite complex, not properly treated in checklist form. And we�re expecting judges with (in many cases) zero experience with those issues to evaluate whether the expert testimony should come in.
Much of it, I think, is simply a lack of the proper vocabulary, and a feeling that there is something so magical about scientific evidence that the judge has no chance to get it. If someone comes in incanting magic-sounding words, then, well, those magic-sounding words should be permitted to be before the jury. In other words, perhaps it is not so much a lack of tools as a lack of understanding that they have the tools, but they don�t yet know how to use those tools with the vocabulary.
Another problem, of course, is that the parties may or may not be helpful in getting judges a better understanding of the science. In any given case, it�s likely that one side has an interest in the judge (and jury) not understanding the science, and so relying on the retained experts from each side is likely to confuse as much as clarify. Given that, throwing up one�s hands and saying, �Let it all in!� is not an irrational response.
What�s the solution? I�m certain there is not just one. But one place to start is the American Academy for the Advancement of Science�s �CASE� project -- �Court-Appointed Scientific Experts.� CASE is
a service that assists federal and state judges, administrative law judges and arbitrators in locating highly qualified independent scientific and technical experts to serve as independent experts. Originally conceived as a demonstration project, and limited to federal district judges, the project accepted its first requests from judges in February 2001�
Given the success of the project, in September 2004 it was expanded to include state trial courts, administrative law courts and arbitration. CASE staff selects experts on a case-by-case basis, tailoring the search to the specific request for assistance. Project staff use several methods and resources to identify suitable experts, including professional societies and other scientific institutions, and a Recruitment and Screening Panel, composed of highly-respected scientists, engineers, and health care professionals.
CASE-referred experts are not expected to serve pro bono; each expert's fee is determined between the expert and the judge or parties to arbitration. During the demonstration period, CASE services were free of charge. However, with the expansion in scope of the project, CASE is transitioning to a fee-for-service model.
I don�t know how successful the CASE project has been, other than the fact that the AAAS evidently decided to extend it. I�d love to hear from people with direct experience with it. But it is a place to start, if for no other reason than it might give judges some level of confidence in talking science -- and a recognition that scientific evidence is, at its core, evidence, just like the evidence judges deal with daily.
Court-appointed experts are likely only going to make sense in relatively high-stakes litigation, where the parties can reasonably be expected to pay for the expenses (unless a court system had funds for some experts -- something that may, over time, make sense). But their use in those bigger cases will help in smaller cases as well, as judges learn more about and become more comfortable with science.
I�d also hope that there would be more direct education of judges. I�m aware of some efforts to teach judges more science, but most have been at the federal level. Investing in some basic scientific literacy for state judges would be money well-spent.
Judges can also consider directing parties to litigation to put together an agreed-upon primer on the subject matter. Again, this is likely limited to bigger cases, but improving the literacy level in those cases will help in the smaller cases, and it can be done without the expense or complications of bringing in a group like the AAAS�s CASE project. Not coincidentally, most of these suggestions would improve the odds of the jury understanding the evidence too.
In short, as the subject matter of litigation (tort and otherwise) has become more complex, and judges� role as gatekeepers of scientific evidence has become more critical, the infrastructure has stayed the same. I don�t advocate for �science courts� or �medical courts� (though a posting later this week will discuss screening panels).
But we need to give judges a chance to do their jobs right.
Coming up later this week: presumptions instead of preemption, pre-trial case evaluations, mucking around in peer review, and more. Those will be bigger beer.