My Article on Florida’s New Expert Witness Rule

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, December 24, 2013.

We are increasingly relying on expert witnesses in divorce trials. Hiring forensic accountants, psychologists and other expert witnesses has become the new norm. But Federal and Florida courts have been using different rules to allow expert testimony in court. That’s just changed. I have a new article just published in the Florida Bar Commentator on this new change to the expert evidence rule.

The Article briefly reviews the evolution of the rules for the admissibility of expert testimony in Florida, how our rules differ from the Federal rules, the three big U.S. Supreme Court cases, the Constitutional separation of powers question, and how the new Florida Rule of Evidence 702 impacts family law.

Part I reviews Florida’s law of expert testimony from the Frye case to the Florida Supreme Court’s Marsh decision. Supporters of Florida’s old rule enjoyed the ease in which expert testimony was admitted in court. But critics charged that the expert testimony became of dubious validity.

Part II describes a Constitutional problem with the way Rule 702 was amended. A law which encroaches on the Supreme Court’s power to regulate courtroom practice is unconstitutional, but the Legislature can enact substantive law. When the legislative branch encroaches on the judicial branch, a separation of powers violation of the constitution can arise.

Part III describes the U.S. Supreme Court’s Daubert trilogy, which is what amended Rule 702 is based on. The new Rule 702 codified the Daubert trilogy, and did so with language that removes any ambiguities about how to apply it and questions about the usefulness of Florida’s prior case law.

The Article concludes by discussing some of the ways this new expert witness rule will impact your divorce, and the judges, experts, and the lawyers who practice family law.

You can read the article here.