Tag: expert opinions

Daubert Webinar Available for Download

For anyone who is interested in downloading my Florida Bar Family Law Section sponsored presentation on “The Return of Daubert” from this past Halloween, and could not get the materials, you can download it from the Florida Bar website here – and get CLE. Florida’s changing expert witness rules impact everyone who practices in divorce and family law. The Webinar will explain why the new old law is here to stay.

Divorce Expert

The Frye Pan

People rely on all sorts of expert witnesses in divorce and family law cases, maybe more than most areas of law. Routinely, people will come to trial with accountants, psychologists, and other experts in tow.

Since 1923 courts have relied on the Frye Rule, which states that expert opinion based on a scientific technique is only admissible where the technique is generally accepted as reliable in the scientific community.

In 1993, the U.S. Supreme Court adopted a new standard which requires trial judges to screen expert testimony for relevance and reliability. The “Daubert test” developed in three product liabilities cases. The plaintiffs tried to introduce expert testimony to prove products caused their damages. The U.S. Supreme Court ultimately tightened the rules for admitting expert testimony.

Constitutional Problems

In 2013, the Florida Legislature amended the Florida Evidence Code to start following the U.S. Supreme Court’s Daubert standard for the admission of expert testimony and the basis for an expert’s opinion. When the legislature passes a law encroaching on courtroom practice and procedure, the laws are unconstitutional. However, the Legislature can enact substantive laws.

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.

The Florida Evidence Code contains both substantive and procedural provisions, so there was a suspicion that the Legislature violated the separation of powers doctrine when it amended the code this way. My new article about the way the Constitutional problem was resolved by the Florida Supreme Court is available here.

Return of Daubert

This summer, the Florida Supreme Court weighed in on the new evidence law and found it constitutional. Rejecting the recent complaints about the Daubert standard, the Florida Supreme Court remarked that Daubert has been routinely applied in federal courts since 1993, a majority of states adhere to the Daubert standard, and caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.

Effective immediately, the Florida Supreme Court has adopted the Legislatures’ 2013 amendments to section 90.702 as procedural rules of evidence, and adopted the amendment to section 90.704 to the extent it is procedural.

Florida’s new-ish Daubert standard is the set of factors used to determine the admissibility of expert witness testimony in court. Under the Daubert standard, the trial judge serves as the gatekeeper who determines whether an expert’s evidence is deemed reliable and relevant.

Trial judges in Florida now have to use the Daubert test to assess whether an expert witness’ testimony is 1) based on scientifically valid reasoning and 2) whether it has been properly applied to the facts at issue. Failure to comply with the Daubert standard can result in exclusion of an expert’s testimony.

The Webinar is available here.

 

Upcoming Webinar

For any interested readers, I will be speaking with the Hon. Samantha Ruiz Cohen at a webinar hosted by the Florida Bar Family Law Section. The webinar will discuss Florida’s twisting road to the current standard for admitting expert testimony in family law and divorce cases.

fla-supreme-ct

The presentation addresses the statutory changes to §90.702 and §90.704; how the new Daubert standard differs from Florida’s old Frye rule; the now-settled Constitutional problem, some appellate cases applying the new standard; how the judge’s role in admitting expert testimony has changed; and the new Rules’ impact on the admissibility of expert testimony in Family Law cases.

You can register by clicking here.

 

Upcoming Speaking Engagement

I will be speaking at the Family Court Services Lunch & Learn Series with my colleague Evan Marks, on Florida’s twisting road to the correct standard for admitting expert testimony in family law and divorce cases called: “Daubert Returns.”

speaking engagement

The Lunch & Learn Series consists of fantastic presentations hosted monthly by Family Court Services at the Family Division Courthouse, and this one will take place on:

 October 16, 2019, from 12:00 pm – 2:00 pm at the Family Division Courthouse located at 175 NW 1st Avenue 11th Floor Miami, Florida 33128.

The presentation is based, in part, on an article to be published this Fall in the Florida Bar Commentator, “Daubert House.” The Florida Legislature amended Sections 90.702 and 90.704 of the Florida Statutes to bind Florida courts to the Daubert standard for the admission of expert testimony and the basis for an expert’s opinion. Since then, the Daubert standard has been constantly attacked.

My co-presenter, Evan Marks, Esq. and myself, will answer the questions: What was the Frye Rule? What did the Daubert standard do to change it? And how it impacts experts in your marital and family law cases.

This presentation addresses the statutory changes to §90.702 and §90.704; how the new Daubert standard differs from the old Frye rule; the now-settled Constitutional problem, Florida appellate cases applying the new standard; how the judge’s role in admitting expert testimony has changed; and the new Rules’ impact on the admissibility of expert testimony in Family Division cases.

The event is sponsored by Family Court Services. Family Court Services was developed to assist family law judges and general magistrates with some of the Court’s most difficult family cases, reducing case delays while tending to the unique needs of divorcing parents and their children.

CLE and continuing education credit for judiciary, attorneys, mental health professionals, mediators and professional interpreters are also available.

You can register here.