Friday, May 24, 2013

Daubert and Family Law

In family law, I see a lot of attorneys attempt to use "experts"  for a variety of purposes.  The most typical one is some form of counselor to say that one parent is better than the other one.  In several cases I have been involved in, the "expert" is no more qualified to give an expert opinion on the matter than I would be.  In Daubert v. Merrell Dow Pharmaceuticals, Inc., 508 U.S. 579, 589-91 (1993), the U.S. Supreme Court set up standards that are virtually mirrored in every state including Mississippi regarding when expert testimony may be admitted at trial.  Without getting into a long Daubert discussion, the main issue is that the expert must offer testimony that is generally accepted in the scientific community using generally accepted methods of testing.  I have unfortunately seen individuals attempt to offer expert testimony that when analyzed closely has no methodology behind it nor any way to verify their opinion.  Chancellors lots of times say that goes to the weight of the evidence.  However, my response was always that if the methodology is flawed, the evidence is not reliable, therefore it cannot be relevant.  If it is not relevant, the rules of evidence prohibit it from being used.  Daubert motions to disqualify opposing parties' expert witnesses are not utilized enough in my opinion to the determinant of both the kids and the parents. 

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