3rd Annual Civil Justice Symposium: Perspectives on Daubert

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3rd Annual Civil Justice SymposiumPerspectiv
es on Daubert

• Shari Seidman Diamond
• Nortwestern University School of Law
• December 8, 2008

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An Overview

• Dauberts two-sided message
• An example of how judicial gate-keeping has
  changed survey evidence
• Why restrained judicial gate-keeping is
  preferable
• The modern American jury
• Changes in trial procedures
• Remaining challenges

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Dauberts message(s)

• Characterized Frye as austere in contrast with
  the appropriate standard for admissibility under
  the FRE
• Has encouraged judges to take a more active role
  in gate-keeping
• ?stringent approach to admissibility of  expert
  evidence?

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Survey Evidence

• Standard method for proving
• - whether consumers are likely to be confused
  as to the source of a trademark
• - whether consumers are likely to be misled
  by deceptive advertising
• Replacement for parade of witnesses

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Example (Trademark suit)
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James Burrough v. Sign of Beefeater, 540 F.2d
266  (1976)
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Survey of 500 residents w/i 5 mile radius of
proposed restaurant

• show picture of sign
• Who do you believe is sponsoring or promoting
  this restaurant?
• What, if anything, does INSERT NAME GIVEN do in
  addition to sponsoring or promoting restaurants?
• What other products or services, if any, do you
  believe are sold by the business that is
  sponsoring or promoting this restaurant?

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History of Survey Admissibility

• Early days of survey research (pre-1963)
• Questions about admissibility
• Should surveys be excluded as hearsay?
• Resolution either not hearsay or a hearsay
  exception
• 1963-1993 (pre-Daubert)
• Regularly admitted/critiqued
• No survey is perfect
• Errors in methodology properly go only to the
  weight of the evidence
• Today Increasingly questioned/analyzed

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Primary Issues to Address in Evaluating a Survey

• Did it address the relevant question(s)?
• Did it identify an appropriate population?
• Was a suitable sample selected?
• Were the survey design and questions structured
  to be clear and unbiased?
• Was it administered and analyzed objectively?
• Were the results fully reported?
• -Reference Guide on Survey Research (Federal
  Judicial Center, 2000)
  

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Since Daubert

• Judges more active in analyzing methodology of
  survey evidence
• - Daubert or increasing judicial
  sophistication?
• Divergence in decisionmaking
• Some courts are more inclined to exclude
• Others continue to see methodological weaknesses
  as going to weight, not admissibility

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A crucial question for the courts

• Whether a jury should be able to determine
  whether asserted technical deficiencies undermine
  a surveys probative value.
• - Southland Sod Farms v. Stover Seed,
  108 F.3d 1134, 1143, n. 8 (1997)

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Jury Trial Innovations and Research in the Wake
of Daubert

• 1993 Arizona Supreme Court Committee on More
  Effective Use of Juries
• THE POWER OF TWELVE (1994)
• ABA Principles on Juries and Jury Trials (2005)
• State of the States Survey (2007)
• The 7th Circuit Jury Pilot Project (2006-08)
• The Arizona Filming Project

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The Arizona Filming Project

• Court Support
• Permissions and Participation
• The Cameras
• The Experiment
• The Materials
• - 50 cases
• - awards 1,000 - 2.8 million

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A Portrait of the Jury

• Jurors attempt to arrive at the most plausible
  reconstruction of the events by pooling their
  assessments of the incomplete and conflicting
  stories that the witnesses tell.

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Some evidence about jury behavior central
processing

• Questions during trial
• Reactions to experts during deliberations

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Clarifying and filling in gaps(28)

• What does the term reasonable psychological
  probability mean?
• What is a tear of the meniscus?

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Cross-checking (42)

• Methods/tests e.g., Following the remodeling,
  were any tests done to insure proper water flow?
• External standards e.g., Is there a minimum
  speed limit on the highway?
• Other comparison checks e.g., Did your car have
  an airbag?

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Juror Questions for Witnesses

• (829 questions)
• Judge permitted answers to 76 of the questions
• More questions for witnesses with lengthy
  testimony
• More questions for witnesses judge rated as
  important
• Questions for almost half of experts
• Handling questions averaged 33.3 minutes/trial
• (Diamond et al., Juror Questions During Trial A
  Window into Juror Thinking, 59 Vanderbilt L. Rev.
  1927 (2006))

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Talk about experts during deliberations

• Talk primarily about the content of the testimony
• Talk occurs on relevant issues
• (i.e., little or no talk about medical
  testimony when central issue is negligence)

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The Modern Jury Pool

• Elimination of most occupational exemptions
• One day/one trial jury duty
• Juries (not just jury venires) increasing include
  jurors with relevant occupational expertise

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Modern Trend for Juries

• Recognizing active processing
• Away from the potted plant treatment
• Challenge achieving a delicate balance between
  equipping and informing juries while providing
  appropriate guidance