X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Expert testimony can be the linchpin that makes or breaks a case. But lawyers have had a tougher time getting that testimony admitted since 1993, when the Supreme Court decided in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), that scientific testimony must be not only relevant, but reliable. In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the court extended that rule to all experts. This means that a lawyer preparing to qualify or challenge an expert at trial must answer a number of questions. What is the state of case law under Daubert? How has the particular court or judge applied the rule? How have courts ruled on this type of expertise? Has this expert ever come before a judge? But keeping up with the case law is no easy task. MDEX Online Inc., a medical-legal consulting firm headquartered in Chicago, estimates there are more than 4,000 trial and appellate opinions interpreting and applying Daubert and its offspring, as well as thousands more state “gatekeeper” cases. That is why MDEX developed a tool to help lawyers track these cases and, in particular, find out how specific experts or areas of expertise fared in the courts. Called “The Daubert Tracker” at www.dauberttracker.com, its central feature is a database of all reported Daubert and Kumho decisions, trial and appellate, backed up when available by full-text briefs, transcripts and docket entries. It also includes recent cases applying Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the U.S. Circuit Court for the District of Columbia decision requiring the exclusion of scientific evidence that is unproven or experimental. As of this writing, it was preparing to add all state gatekeeper cases as well as several thousand unreported cases. The service, launched in August 2002, is composed of five distinct products: A searchable database of all reported cases. Core documents-docket sheets, briefs and transcripts-for each case. An e-mail update of new cases from the previous week. A quarterly journal with articles by trial attorneys, law professors, judges and experts. A series of “Web lectures” delivered by authorities on Daubert and scientific evidence. A year’s subscription is $495 with discounts for multiple users. You can instead purchase a two-hour session for $25 or a half-hour for $10. The full subscription includes the case law database, the e-mail update and the quarterly journal. Core documents and Web lectures cost extra. Briefs are $20 each for subscribers and $40 for others. Transcripts are $30 for subscribers and $60 for others. Documents and transcripts not in the database can be ordered for $35 to $60. Lectures are $60 to subscribers, $95 to others. Conducting a search When you first log on, you arrive at the main page, where the search fields are set out in a box to the left. To the right, another box lists available Web lectures. In the center of the page is general product information. You can search the database using any combination of the 10 available search fields. They allow you to search by expert’s name, expert’s discipline, specific federal or state court, area of law, party, judge, attorney, year and keyword. You select the discipline, court and area of law from a drop-down list. You are permitted to select multiple disciplines. In addition to these fielded searches, The Daubert Tracker recently added full-text-searching of opinions. It supports natural language and Boolean searches as well as more sophisticated techniques such as “Fuzzy” searching that will find a word even if it is misspelled. Once you have entered a search, you come to a results screen with a list of the matching cases, showing for each the jurisdiction, court and case caption. Next to each listed item is a “View Case” button; clicking this takes you to the details of the case. The main screen for each case has five tabs across the top: Case Details, Opinion, Docket, Briefs and Transcripts. Cases added to the database since January also have a sixth tab, Summary. The screen opens by default at Case Details, and begins with the experts-not just the ones who matched the search, but all who were challenged in the case-showing name, discipline, area of expertise and disposition (e.g., testimony admitted). The Details screen also lists court, parties, docket number, citation, counsel, judge and area of law. Here is a key area in which the The Daubert Tracker distinguishes itself from other case law databases, said MDEX CEO Myles Levin. Even if the case never mentions the expert’s name or expertise, The Daubert Tracker provides it, and assigns a discipline. From Case Details, you can click on any of the other tabs to reveal: Opinion. This is the full text. Docket. This is the case docket listing pleadings and other filings. Order any of them by checking the box next to the item. Briefs. This feature lists any briefs available for purchase. The site provides briefs for appellate cases only, and then only for cases where the brief was available from the court or other source. Transcripts. This feature lists any transcripts available for purchase. Levin describes the collection of transcripts as “in its infancy,” but he is pursuing ways to add more. Summary. Only cases added since January include summaries. If a brief, transcript or other document is available for purchase, the price is shown to the right of the item’s description along with a check box to add the item to a “shopping cart.” Once you have “checked out” by entering your credit card information, you go directly to a download page showing that item and any others you have purchased. You can download it immediately or anytime afterward. Thousands more cases were expected to be added soon, Levin said. These include: State cases, such as the 1976 California decision adopting Frye, People v. Kelly, and its progeny. Levin said his staff identified the seminal cases for each state, collected all cases that cited them, and tracked down experts’ names and areas of expertise. More than 4,000 unreported cases, including pretrial evidentiary hearings. The company also plans to add the ability to search by rule. Levin’s staff found that many Daubert-type cases cited the applicable rule of evidence-most often Rule 702 of the Federal Rules of Evidence-but never mentioned the Daubert decision. He located 3,600 such cases and was adding them to the database, along with the ability to search cases by cited rule. The Daubert Tracker is not without its shortcomings. Among the most apparent: Inconsistent availability of briefs, transcripts and supporting documents. You never know until you click on the appropriate tab whether the brief or transcript is available. The initial results screen lists cases alphabetically, but does not show when they were decided. Adding dates here would be helpful. Even better would be the ability to sort results by date. Full-text cases have neither page nor paragraph numbers, so they cannot be cited without going to another source. Lack of a detailed help file. It makes up for this, however, with a thorough demo that serves as a tutorial as well. Despite these shortcomings, The Daubert Tracker is a useful tool for trial lawyers. It is easy to use and understand, and provides precise information about expert witnesses not easily found elsewhere. At $10 for a half-hour session, a lawyer would be remiss not to check an expert through The Daubert Tracker. Robert J. Ambrogi, former editorial director of The National Law Journal, is vice president of editorial services for Jaffe Associates. He can be reached at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.