By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 14, 2015.

Few people know that Florida passed a new law about expert witnesses. There are a couple of Florida cases, it impacts every divorce trial, and we’re all waiting for the Florida Supreme Court to weigh in.

I recently published an article giving a little history about the new Florida statute, along with a review on the three big U.S. Supreme Court cases where the new rule was forged. In the article, I wrote about the possible Constitutional problems with the way the law was passed.

Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

However, the Constitutional issue will not be known until a case is presented to the Supreme Court. However, the Florida Bar Board of Governors last week voted to reject the new rule, and keep the old rule announced in Frye.

The Board voted 33-9 to reject Daubert, the new rule, accepting the recommendation of the Bar’s Code and Rules of Evidence Committee. The Florida Supreme Court will make the final decision, setting up a possible conflict between the court and the lawmakers, who passed the law in 2013 to adopt Daubert.

The issue has been hotly debated in the legal community, with 688 lawyers and legal groups sending comments to the Bar. The overwhelming majority of respondents favored keeping Frye.

Florida’s amendment of Rule 702 is similar to the way Arizona tossed the Frye standard. After the Arizona legislature enacted a similar Daubert bill, the statute was declared unconstitutional under a separation of powers argument.16 However, the bill pressured the Arizona Supreme Court to amend Rule 702 itself, which it later did.

Until the Florida Supreme Court weighs in on the Constitutionality of the amendment to the expert witness rule, no one is really sure of its future.

An article on the Bar’s vote can be read here.