Trump vs Hillary is not the only debate that has raged in throughout the state of Michigan. The field of litigation has been in a battle over the concept of expert testimony. The battle for Expert Testimony is tug of war between Frye and Daubert. Frye being a concept of the past with Daubert being the new kid on the block. Expert testimony can make or break a case and to be clear, an expert is somebody that can testify in your litigation without ever seeing the evidence on a first-hand basis. In both civil and criminal litigation, the expert can be the game changer. Let’s discuss the dynamic between the two different tests:
In Frye,¹ the court stated that scientific testimony is the key concept that the court will utilize in order to accept the testimony while determining if an expert is truly qualified. This left many very qualified people out in the cold because not all expert testimony requires one to be versed in science, in fact, sometimes one’s work experience can make all of the difference but with the law presented by Frye, there was a very narrow view of who could qualify as such. While Frye is still followed in several states (New Jersey and New York of the most famed utilization), the law has changed federally and within the state of Michigan. In Michigan and the majority of states, we follow the Daubert test.
In Daubert,² the road to the courthouse has opened up an array of new lanes and traffic is no longer as congested. To begin, the concept presented in Frye has not been abandoned but instead encompassed. While science will still prevail as an overarching theme that courts may consider, an array of evidence that can be explained with a threshold of information will now be looked at in the matter.³ In essence, the experience of an individual will lead to a further understanding of how a court may accept evidence that is studied but not actually seen on a first-hand basis. The expert no longer has to possess scientific knowledge and instead, just knowledge in their field and this has changed the face of litigation.
“The scientist versus the janitor”
In many ways, the face of litigation has received the ultimate face-lift. In 1923, when Frye was handed down only the select few would be allowed to testify. It was an elitist system. In 1993, with the Daubert decision, the doors are now opened to those that may not know science but certainly has a grasp on their field. If you slipped on a floor and the issue stemmed on how long it takes for wax to harden, would you want a scientist explaining their views on wax or would you want a janitor that works with the wax on a daily basis? If you overlooked the janitor, you overlooked success. Frye and Daubert represent a dynamic that goes back to the debate between W.E.B. DuBois and Booker T. Washington. DuBois is Frye, Washington is Daubert. Success is what you put into a case.
“The learning experience”
What many lawyers often forget is that the expert is not our employee and instead, they are somebody that can tutor you in your case. Tutors come in many forms but the only way we learn how to select the right one is to understand the needs of our client as opposed to our beliefs. We are there to coach our client and we must always remember that it is our clients case, not ours. The client has entrusted us with their money and sometimes their freedom. If there is no interplay between the attorney, the client and the expert, the learning experience will be lost…and so may the case.
Bill Amadeo is a partner at the law firm McManus PLLC in Ann Arbor, Michigan. He also owns and operates BAT Tutoring in Lansing, Michigan. In addition to these duties, he is the Educational Coordinator of BNI in Ann Arbor and worked as a professional journalist prior to his legal career.
¹ Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
² Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1994).
³ See Federal Rule of Evidence 104(a) (Apr. 22, 1993, eff. Dec. 1, 1993).