Appellate Law

Posner's trashing of Experts

By S. COTUS

DotD has a post entitled ?Seventh Trashes Prominent Finance Professor? which you should read.  Essentially, Posner flexes his muscles and says that a PhD economist ?cannot be trusted to continue as an expert witness in the case in which he has demonstrated that willingness, and perhaps not in other cases either.?

There is a fundamental flaw in this.  Rule 702 doesn?t require or even demand scrutiny of an individual expert?s character.  Moreover, the Federal Rules do not ?certify? individual experts as always being admissible.  Their propose testimony (or perhaps actual testimony) is scrutinized on a case-by-case basis by individual trial court judges based on whether it will assist the jury.

Yes.  I know, Posner likes to think that he knows about science.  But, in declaring that an expert can never be good enough to assist any jury (apparently with stare decisis effect), he has essentially usurped the jury?s function.  But, hey if Posner would do that with so-called ?cop? experts, maybe I would be more cool with it.  But, it ain?t going to happen.

Full post as published by Appellate Law and Practice on February 20, 2008 (boomark / email).