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Using Statistics in Litigation: A Research Guide. Robin R. Gault February 24, 2005. “For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”

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slide2
“For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”
    • Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457, 469 (1897).
slide3
What do these things have in common?
  • Discrimination claims
  • Products liability
  • Trademark dilution
  • Forensic identification
  • Economic damages calculation
slide4
All of these and many more issues in litigation involve an effort to prove (or disprove) the allegations with statistics.
  • “Figures speak and when they do, Courts listen.”
    • Frequently repeated maxim in court cases. See Brooks v. Beto, 366 F.2d 1, 9 (5th Cir. 1966)
slide5
At the same time, we have all heard the saying (attributed to Mark Twain and/or Benjamin Disraeli), that there are “lies, damn lies, and statistics.”
  • How can we help to ensure that the statistics we deal with in litigation are accurate and useful?
slide6
“Statistics, broadly defined is the art and science of gaining information from data. For statistical purposes, data mean observations or measurements, expressed at numbers. . . . The field of statistics includes methods for (1) collecting data, (2) analyzing data, and (3) drawing inferences from data.” (Reference Manual on Scientific Evidence 85)
slide7
Statistics is the language of science and social science. Experts in fields as disparate as economics, engineering, and psychology may use statistics in their work.
slide8
The use of statistical evidence in litigation appears to be increasing. Researchers also see increasing sophistication in courts’ use of statistics. Some authors suggest that juries may expect statistical evidence in certain kinds of cases.
statistics for lawyers
Statistics for Lawyers
  • There are many print and web-based resources intended to offer guidance in the use of statistics. I have selected a few that seem especially helpful or especially accessible. There are suggestions at the end of the presentation for places to look for more information.
slide10
Prominent among the non-experts who must made crucial decisions about statistical evidence are judges. The two resources listed below were created for use by judges.
slide11
David H. Kaye and David A. Freedman, Reference Guide on Statistics, in Reference Manual on Scientific Evidence, 2d. ed. (Federal Judicial Center, 2000.) [KF 8961 A75 R44 2000). Click on link on FJC page:

http://www.fjc.gov

  • The entire book is well-known and widely cited. It includes chapters on statistics, multiple regression, and survey research. It can be downloaded at no charge. Kaye and Freedman offer good suggestions about what you should look for in your own or your opponent’s evidence.
slide12
Shirley A. Dobbin, Ph.D., and Sophia I. Gatowski, Ph.D., A Judge’s Deskbook on the Basic Philosophies and Methods of Science: A Model Curriculum (State Justice Institute, 1999).
  • http://www.unr.edu/bench/
    • Less well-known than the Reference Manual, this teaching tool includes a chapter on Data Analysis: An Introduction to Statistics. May be downloaded at no charge.
slide13
Print resources for attorneys:
  • Chapter 15: Statistical Evidence in Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, 3d ed. (Lexis, 1999) [KF 8961 G53 1999. Also in Lexis, filename 2DARY; SCIEVD]
    • This is somewhat more technical than the first two sources.
slide14
Hans Zeisel and David Kaye, Prove It with Figures: Empirical Methods in Law and Litigation (Statistics for Social Science and Public Policy) (Springer, 1997) [KF 320 S73 Z45 1997]
      • Includes a variety of topics, such as coincidence and significance, sampling, trademark surveys, and jury selection. The notes at the end are very good.
slide15
Michael O. Finkelstein and Bruce Levin, Statistics for Lawyers, 2d ed. (Statistics for Social Science and Public Policy) (Springer 2001) [QA 276.12 F56 2001]
      • Considerably more technical than the other works mentioned here, this includes a wide variety of examples drawn from actual cases.
slide16
Joseph L. Gastwirth, ed., Statistical Science in the Courtroom (Statistics for Social Science and Public Policy) (Springer, 2000) [K 5485 S73 2000]
    • A collection of essays by statisticians and legal scholars, many of whom have served as consultants or expert witnesses. This addresses issues about the use and misuse of statistical evidence and the role of experts.
slide17
Stephen E. Fienberg, ed., The Evolving Role of Statistical Assessments as Evidence in the Courts (Springer-Verlag, 1989). [On order by Law Library]
    • A project of the National Research Council, this report examines a variety of issues such as differences between legal and statistical thinking as well as the use of statistical evidence in specific areas of law.
admissibility of statistical evidence
Admissibility of Statistical Evidence
  • For much of the 20th century, federal and state courts used the “Frye test” (Frye v. United States, 293 F. 1013 (D.C. Cir., 1923)) when considering the admissibility of scientific evidence. It required that the science on the which the expert opinion was based have gained “general acceptance” within the scientific community.
slide19
In 1993 the Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, that the adoption of the Federal Rules of Evidence in 1975 superseded Frye. The Court articulated a more “flexible” standard.
slide20
The trial judge must determine whether the underlying reasoning or methodology is scientifically valid and should be applied to the facts of the case. In 1999 in Kumho Tire (526 U.S. 137) the Court extended this standard to all “technical” or other specialized knowledge.
slide21
Judges as “gatekeepers” -
    • The precise requirements of Daubert are the subject of debate among commentators, but there is no doubt that it puts a greater “gatekeeping” burden on judges. (Hence, the creation of the guides for judges that I introduced in the first part of this talk.)
slide22
Web resources on admissibility in federal courts:
  • Federal Rules of Evidence with notes from the Cornell Legal Information Institute:
    • http://www.law.cornell.edu/rules/fre/overview.html
    • See especially Rules 702, 703, 705.
slide23
Margaret A. Berger, The Supreme Court’s Trilogy on the Admissibility of Expert Testimony, in Reference Manual on Scientific Evidence.
      • http://www.fjc.gov
      • A good, general introduction to the issues raised by Daubert and subsequent cases.
slide24
Daubert on the Web:
    • http://www.daubertontheweb.com/
      • A website maintained by a Philadelphia attorney, with summaries of all Daubert cases since 2000 and many useful links.
  • Daubert Expert:
    • http://www.daubertexpert.com/index.html
      • Website maintained by Florida attorney who consults on Daubert issues.
slide25
Print resources:
  • Chapter 1: The Legal Standards for the Admissibility of Scientific Evidence, in David L. Faigman, David H. Kaye, Michael J. Saks, and Joseph Sanders, eds., Modern Scientific Evidence: The Law and Science of Expert Testimony (West, 1997) [KF 8961 M63 1997; also in Westlaw, filename MODSCIEVID]
slide26
Chapter 1: Scientific Evidence, in Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, 3d ed. (Lexis 1999) [KF 8961 G53 1999; also in Lexis, filename 2DARY; SCIEVD]
admissibility in florida
Admissibility in Florida
  • Florida courts continue to use the Frye test.
    • Charles W. Ehrhardt, Florida Evidence (Thomson/West, 2004) 630-647 [KFF 540 E528, also in Westlaw at FLPRAC-EVID]
slide28
Information on the Web:
    • 1999 article on Judicial Gatekeeping in Florida:
      • http://cyber.law.harvard.edu/daubert/fl.htm
    • Stephen Mahle, Business Litigation Expert Testimony in Florida State and Federal Courts, in Business Litigation in Florida (Fla. Bar, 2001) [KFF 152 B87 2001]
      • http://www.daubertontheweb.com/florida_overview.htm
slide29
Admissibility of statistical information not created for litigation:
    • Government compilations of statistics may be admissible as public records under FRE 803(8).
    • Other compilations may be admissible as “market reports or commercial publications” under FRE 803(17) or “learned treatises” under FRE 803(18).
litigating in specific areas
Litigating in Specific Areas
  • A few selected topics:
  • Discrimination:
    • Ramona L. Paetzold and Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases (Thomson/West, 2002) [KF 8925 D5 P34 1994; also in Westlaw, filename STATDIS]
slide31
Forensic evidence:
    • David L. Faigman, David H. Kaye, Michael J. Saks, and Joseph Sanders, eds., Modern Scientific Evidence: The Law and Science of Expert Testimony (West, 1997) [KF 8961 M63 1997; also in Westlaw, filename MODSCIEVID]
slide32
Forensic evidence, cont.
    • Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, 3d ed. (Lexis 1999) [KF 8961 G53 1999; also in Lexis, filename 2DARY; SCIEVD]
    • The Evaluation of Forensic DNA Evidence (National Academy Pr., 1996) [RA 1057.5 E94 1996, also e-book available at FSU – see entry in library catalog]
slide33
Damages:
    • Robert E. Hall and Victoria A. Lazear, Reference Guide on Estimation of Economic Losses in Damages Awards, in Reference Manual on Scientific Evidence.
      • http://www.fjc.gov
slide34
Business litigation:
    • Attorney Stephen Mahle has several articles on business litigation on the Web:
    • http://www.daubertexpert.com/econometric.html#legalview
    • http://www.daubertexpert.com/applying_securities.html
    • http://www.daubertexpert.com/applying_antitrust.html
expert witnesses on statistics
Expert Witnesses on Statistics
  • You may need experts in several fields as part of a case: “Statisticians often advise experts in substantive fields on the procedures for collecting data and often analyze data collected by others. Cases involving statistical evidence often are (or should be) ‘two-expert’ cases of interlocking testimony.” Kaye & Freedman, Reference Manual, 87.
slide36
How do you find expert witnesses?
  • One approach is to read books and articles on your topic and see who is nationally known in this field.
  • If you need someone nearby, a local university may have qualified faculty.
slide37
There are directories of expert witnesses, including several on the Web:
    • ExpertLaw:
    • http://www.expertlaw.com/experts/index.html
    • JurisPro:
    • http://www.jurispro.com/
slide38
The Federal Rules of Evidence allow courts to hire their own experts. The American Association for the Advancement of Science sponsors a project which provides experts to courts:
  • http://www.aaas.org/spp/case/case.htm
finding more information
Finding More Information

Bibliographies on the Web:

  • David H. Kaye, Publications [by Kaye] on Statistics, Probability Theory and Evidence
  • http://homepages.law.asu.edu/~kayed/pubs/p_ls.htm
  • Will Yancey, Statistical Evidence in Litigation
  • http://www.willyancey.com/statistical_evidence.htm
slide40
Links to sources of statistics:
  • The Virtual Chase – Legal Research Guide: Statistical Resources
  • http://www.virtualchase.com/resources/statistics.html
  • University of Michigan Documents Center: Statistical Resources on the Web
  • http://www.lib.umich.edu/govdocs/stats.html
slide41
Finding articles and books:
    • For articles, go to FSU Databases:
      • http://www.lib.fsu.edu/__databases.html
      • LegalTrac and Index to Legal Periodicals are included here.
    • For books, search IndexMaster (available from within Law Library only):
      • http://www.indexmaster.com/
      • This searches the indexes and tables of contents from many law book publishers.