Transcript Using Statistics in Litigation: A Research Guide

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.”
• Oliver Wendell Holmes, Jr., The Path of the
Law, 10 Harvard Law Review 457, 469
(1897).
• What do these things have in common?
•
•
•
•
•
Discrimination claims
Products liability
Trademark dilution
Forensic identification
Economic damages calculation
• 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)
• 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?
“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)
• 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.
• 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
• 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.
• 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.
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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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
• 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.
• 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.
• 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.
• 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.)
• 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.
• 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.
• 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.
• 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]
• 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
• 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]
• 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
• 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
• 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]
• 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]
• 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]
• 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
• Business litigation:
• Attorney Stephen Mahle has several articles
on business litigation on the Web:
• http://www.daubertexpert.com/econometric.h
tml#legalview
• http://www.daubertexpert.com/applying_sec
urities.html
• http://www.daubertexpert.com/applying_antit
rust.html
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.
• 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.
• There are directories of expert witnesses,
including several on the Web:
• ExpertLaw:
• http://www.expertlaw.com/experts/index.html
• JurisPro:
• http://www.jurispro.com/
• 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
Bibliographies on the Web:
• David H. Kaye, Publications [by Kaye] on
Statistics, Probability Theory and Evidence
• http://homepages.law.asu.edu/~kayed/pubs/p_l
s.htm
• Will Yancey, Statistical Evidence in Litigation
• http://www.willyancey.com/statistical_evidence.
htm
Links to sources of statistics:
• The Virtual Chase – Legal Research Guide:
Statistical Resources
• http://www.virtualchase.com/resources/statistic
s.html
• University of Michigan Documents Center:
Statistical Resources on the Web
• http://www.lib.umich.edu/govdocs/stats.html
• 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.