In “My Cousin Vinny,” the 1992 Hollywood film, the trial judge qualifies actress Marisa Tomei’s character, Mona Lisa Vito, an unemployed hairdresser, as a general automotive expert based on her erstwhile experience of working in her father’s garage. For some practitioners who graduated law school after 1992, this film serves as a fun adminicle to learn the nuances of expert evidence admissibility as delineated in Federal Rule of Evidence 702. All federal courts adopted this rule in 1993 via the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.
book review
Expert Evidence Admissibility Rules in Fifty States
For such a heavy subject matter, this slender 209-page book economically sets forth the legal standards by which courts in all fifty states allow expert testimony to be considered by juries.
By Kelso L. Anderson
Guidance on Expert Opinion Testimony in State Courts
Making the admissibility of expert testimony enjoyable to learn, Daubert v. Frye: Admissibility of Expert Testimony is the ABA Section of Litigation’s Trial Evidence Committee first 50-state survey of admissibility of expert testimony. Much like Mona Lisa Vito’s testimony, what makes this book entertaining is the depth of knowledge shared with its audience and the skilled delivery of that knowledge. For such a heavy subject matter, this slender 209-page book sets forth the legal standards by which courts in all 50 states allow expert testimony to be considered by juries. No chapter is more than two full pages long, yet ample detail is given to provide the reader with enough gear to tackle an evidentiary issue that may arise in a particular state.
Each chapter is organized alphabetically by state and begins with a section on applicable law, identifying the specific law of that state as it concerns expert opinion admissibility. If that state has adopted Daubert, the chapter follows with additional detail regarding when that state adopted Daubert, the scope of that adoption, and the state precedent from which Daubert was created. For those few states that not only refused to adopt Daubert but expressly rejected it, a section on rejecting Daubert cites the state precedent rejecting Daubert and gives the key rationale for that rejection.
Each chapter includes a section on standard of review on appeal, which, almost invariably, is an abuse of discretion standard. Finally, each chapter ends with selected case law, discussing relevant precedents in each state.
Inevitability of Change
In the preamble, the editors admit the book may become anachronistic because of the inevitable change in this area of the law. Nevertheless, the editors are aware the book will serve as a timeless resource for practitioners wanting to know about the evolution of expert testimony admissibility in a particular jurisdiction. Another reason the book is useful and easy to navigate is its brevity. Too often, books discussing rigorous subject matter are laden with footnotes, confusing jargon, and scholarly annotations promising to enhance the reader’s knowledge of the subject but instead can lead to boredom or mere exhaustion.
Absent from this book is the typical legal discourse one finds in similar scholarly books. The precision with which the editors organize this book is a testament to their experience as practitioners and their selfless consideration of the reader’s time. For those readers who finished all 148-pages of text discussing the status of expert evidence admissibility from Alabama to Wyoming and may have forgotten which state follows Daubert or Frye, neither, or both, a one-page table reminds the reader of the standard followed in each state. The utility of this book cannot be overstated for those seeking a nimble resource identifying the present law on expert testimony admissibility.
Deliberate Title and Useful Aids
For the attentive reader who may have noticed the title of the book—Fifty-State Survey: Daubert v. Frye: Admissibility of Expert Testimony—and thought those precedents go to “scientific” expert evidence, the editors were tendentious in their title. True, the holdings of Daubert and Frye touched on expert opinion testimony of “scientific” and “novel scientific” theories, respectively, but those precedents were the progenitors for what is also discussed in the book: state court cases embracing federal precedents holding nonscientific expert testimony is also admissible.
Finally, the book provides checklists for both retaining a testifying expert witness and opposing expert discovery. Sample expert interrogatories and motions in limine as well as an excerpt of the parties’ briefs in the most recent state court case adopting Daubert provide a Mona Lisa Vito–like coda to this excellent book.
Kelso L. Anderson is an associate editor for Litigation News.
Purchase Today
Eric R. Harlan and Jennifer B. Routh, Fifty-State Survey: Daubert v. Frye: Admissibility of Expert Testimony (ABA 2016). Search this and other Section of Litigation books at ShopABA.org or by calling 1-800-285-2221.
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Resources
- Upjohn Co. v. United States, 449 U.S. 383 (1981), available at http://caselaw.findlaw.com/us-supreme-court/449/383.html.
- Fed. R. Evid. 502, available at https://www.law.cornell.edu/rules/fre/rule_502.
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