By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, September 12, 2016.

Divorce is so complicated, we rely on experts for help. But, the new statute governing experts is being questioned by the Florida Supreme Court. What is the status?

The Florida rule for experts was amended in 2013, and is up for review by the Florida Supreme Court. There are some interesting things about the new rule.

1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rule making authority is the court’s job.

2. The way the Rule came into being by the Legislature could create a constitutional challenge to the rule down the road.

3. The new rule forces Florida courts to abandon the 70-year old Frye test for admitting expert testimony.

4. The new rule requires Florida courts to apply the federal standard; something the Florida Supreme Court has said it doesn’t want to do.

I have spoken and written on the rule change several times. In articles and speeches, I cautioned about a possible Constitutional problem with the way the law was passed.

However, the Constitutional issues will not be resolved until the Florida Supreme Court decides it. As the Florida Bar News reports, the two issues being argued before the high court are:

1. Should the Rules of Evidence incorporate the Legislature’s 2013 law that changed the standard for expert testimony to the Daubert standard?

2. Was the amendment a substantive law, or a rule of courtroom procedure?

The Code and Rules of Evidence Committee of the Bar, which advises the court on evidence matters, recommended 16-14 against adopting the change the Legislature.

Justice Barbara Pariente questioned whether the Court should reject adopting Daubert as a rule, because it is not actually passing on the constitutionality of the rule, which it would do when a case in controversy reaches the court.

The reaction to the law has been huge, the Court received more than 180 comments on the proposed rule change. The court responded by extending the time for oral arguments from the normal 40 minutes to 60 minutes.

The vote on the Daubert/Frye issue was one of the few times in the past three decades that CREC has voted against recommending that a legislative change be adopted as an evidence rule.

The Florida Bar News article is here.

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