Shira Forman

It was possibly the worst job interview ever.

By now, more than five million people have watched the cringeworthy viral video of the Senate confirmation hearing in which federal district court nominee Matthew Petersen struggled to answer questions about his litigation background. Petersen, a member of the Federal Election Commission who was nominated by President Donald Trump to the U.S. District Court for the District of Columbia, was forced to admit, under questioning from Republican Senator John Kennedy, that he never tried a jury or bench trial, never argued a motion in court, and never took a deposition on his own.

Things only got worse as Senator Kennedy inquired about some fundamental legal tenets, none of which Petersen could explain. On Saturday, he withdrew his nomination to the bench, telling President Trump in a letter that he did not want to be a “continued distraction.”

How would you do if faced with the same legal pop quiz as Matthew Petersen? Below, a primer on the litigation concepts that eluded one would-be jurist.

What is the ‘Daubert’ standard?

The Daubert standard is an evidentiary rule that governs the admissibility of expert testimony at trial. The standard has its roots in the seminal U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), in which the court charged trial judges with the task of “gatekeeping” with respect to admitting expert testimony. Daubert set forth a non-exclusive five-part test for determining the reliability and relevance of expert evidence:

(1) whether a theory or technique can be (and has been) tested;

(2) whether the theory or technique has been subjected to peer review and publication;

(3) the theory or technique’s known or potential error rate;

(4) the existence and maintenance of standards controlling the technique’s operation; and

(5) whether the theory or technique has achieved general acceptance in its field.

What is a motion in limine?

A motion in limine is a pretrial motion in which a party requests that the judge exclude certain evidence from trial, often on the grounds that the evidence is inadmissible, prejudicial, or irrelevant. Motions in limine can be brought to exclude, among other things, improper expert witness testimony, evidence that was not properly turned over in discovery, or evidence that would violate court rules. Defendants in criminal cases often bring motions in limine in an effort to exclude evidence of matters like past arrests or offers to plead guilty.

What is the ‘Younger’ abstention doctrine?

The Younger abstention doctrine, which originated in the U.S. Supreme Court case Younger v. Harris, 401 U.S. 37 (1971), is the principle that when there is a parallel, pending state criminal proceeding (or a civil proceeding that is akin to a criminal proceeding), federal courts should refrain from enjoining the state proceeding. Younger abstention is required when three elements are met: (1) there is an ongoing state proceeding; (2) an important state interest is implicated; and (3) the plaintiff will have the opportunity to bring his or her constitutional claims in state court. Even if the three elements are met, a federal court may intervene in a state proceeding upon a showing of bad faith, harassment or another unusual circumstance that requires equitable relief. Recent Supreme Court case law has made clear that Younger applies specifically to categories of state proceedings that are “exceptional,” namely state criminal prosecutions, civil enforcement proceedings, and civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.

What is the ‘Pullman’ abstention doctrine?

The Pullman abstention doctrine is the principle that federal courts should refrain from deciding cases in which state action is challenged in federal court as contrary to the federal constitution if there are unsettled questions of state law that may be dispositive of the case. The doctrine has its roots in the Supreme Court case Railroad Commission of Texas et al. v. Pullman Co., 312 U.S. 496 (1941). Under Second Circuit law, Pullman abstention is appropriate when: (1) there is an unclear state statute or issue of state law that underlies the federal constitutional claim; (2) the state issues are amenable to interpretation that would obviate the need for adjudication of the constitutional claim by the federal court; and (3) resolution of the federal constitutional issue depends upon the interpretation to be given to the state law. Last year, the Southern District of New York invoked the Pullman doctrine in a case in which the Ultimate Fighting Championship brought a state court challenge to New York state’s law against mixed martial arts events. When the UFC asked the Southern District for an injunction prohibiting New York from enforcing the law, the court held that abstention was appropriate pending a determination by the state court as to the meaning of the challenged law.

When was the last time you read the Federal Rules of Civil Procedure and the Federal Rules of Evidence?

If you—like judicial candidate Matthew Petersen—are having trouble remembering, consider making a New Year’s Resolution to spend some quality time with these two litigation bibles; they’re bound to come in handy in 2018.

Shira Forman is an associate in the labor and employment practice group at Sheppard, Mullin, Richter & Hampton.