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.

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.