Is the legal profession especially sloppy with scientific evidence?
The Court of Appeals for the Seventh Circuit seems to think so. The Court of Appeals has now written – in three different cases in the last three months – that lawyers and trial judges need to do a better job with technical or scientific proof.
In Jackson v. Pollion, 733 F.3d 786 (7th Cir. 2013), the Court of Appeals reviewed the dismissal of a prisoner’s Section 1983 claim, which had centered on the prison’s failure to provide him with medication for hypertension (high blood pressure). The Court of Appeals affirmed that dismissal, but only after scolding the lawyers and the trial judge for failing to engage the prisoner’s assertion that he suffered long-term injuries from the untreated hypertension. “This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue,” the Court of Appeals wrote, citing many cases in which scientific evidence was poorly handled. The Court of Appeals continued:
“The discomfort of the legal profession, including the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that they picked law over a technical field because they have a ‘math block’–law students as a group, seem peculiarly averse to math and science. But it’s increasingly concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation.” (Citations and quotations omitted.)
The Court of Appeals then concluded:
“To determine the effect on the plaintiff’s health of a temporary interruption in his medication, the lawyers in the first instance, and if they did their job the judges in the second instance, would have had to make some investment in learning about the condition. That could have taken the form of a judge’s appointing a neutral expert under Fed. R. Evid. 706, or insisting that the plaintiff’s lawyer obtain an expert’s affidavit, or just consulting a reputable medical treatise. The legal profession must get over its fear and loathing of science.” (Citations omitted.)
The same theme appeared in Dekeyser v. Thyssenkrupp Waupaca Inc., 735 F.3d 568, (7th Cir. 2013), where the Court of Appeals heard an appeal in a wage-and-hour dispute. The case centered on whether employees at a chemical plant should be paid for time spent showering and changing clothes after completing their work shifts. The workers sought discovery and proof on the dangerous nature of the chemicals at the plant, but the District Court cut off that inquiry. The District Court found that the scientific proof would be complex and difficult to use, and concluded that the litigation process would be “poorly suited” to determining which safety practices were job requirements at the plant. The Court of Appeals overruled that decision, stating:
“Finally, although we recognize that cases such as this may implicate very difficult and complex scientific issues (on which the parties, and their retained scientific experts, will often disagree), courts cannot avoid discovery or expert testimony simply because such discovery or testimony may be costly, time consuming, or difficult to understand.” (Citations omitted.)
Most recently, the Court of Appeals made the same point in Caterpillar Logistics Inc. v. Perez, 2013 U.S. App. LEXIS 24743 (Dec. 12, 2013), which was an appeal from an administrative agency’s decision in a workplace safety dispute. The Administrative Law Judge had reviewed the data on elbow inflammation injuries at a jobsite, comparing that to data on similar elbow injuries in the general population. The ALJ said that such a statistical comparison could prove that the injury was work-related, but that same statistical analysis could never disprove that the injury was work-related. The Court of Appeals rejected this finding – calling it a “heads-I-win-tails-you-lose” approach to statistics – holding that the District Court’s abuse of the scientific method could not stand. The Court of Appeals abruptly concluded:
“Judges and other lawyers must learn how to deal with scientific evidence and inference.”
These three opinions have arrived alongside the latest book from Judge Richard Posner. In Reflections on Judging (Harvard Univ. Press, 2013), Judge Posner writes that the job of judging is increasingly complex. More and more, courts are asked to resolve disputes involving facts that are technical, beyond the common knowledge of most people who are intelligent but not skilled as experts in a particular field. The federal courts hear cases involving complex financial instruments, or computer software, or biomedical engineering, or data from laboratory experiments, among many other examples. Often, Judge Posner writes, lawyers do not provide enough background information to allow the judge to consider the dispute in the context where it arose.
Judge Posner urges lawyers to learn the technical information themselves as part of their case preparation, to avoid using industry jargon in court papers, to use visuals whenever possible, and to start with the assumption that the court will always want the extra explanation of the applicable science. Reflections on Judging is a worthwhile read for any lawyer with a civil litigation practice.
At Wexler Wallace, we deal with scientific evidence all the time. Our cases might find us studying complex issues of medical causation, or reviewing the clinical trials for a prescription drug, or parsing the engineering flaws in the design of a dangerous consumer product. The lawyers and staff at Wexler Wallace are accustomed to working with complex, technical evidence.
By investing the time and learning the science, we become better advocates for our clients.
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