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Lawyerly Lesson for Scientists Who Find Themselves Before a Different Bench

Robert D. Athey, Jr.

Legal Alchemy: The Use and Misuse of Science in the Law. David L. Faigman. 233 pp. W. H. Freeman & Co., 1999. $24.95.

This book's tone is not for the scientist but for the lawyer. Its author, David L. Faigman, is a law professor in the Hastings School at the University of California. Given that the training for lawyers is based on rhetoric (the analysis and construction of argument), the emphasis is on argument analysis. The scientist will find it hard to wade through but useful as a prerequisite for acting as a witness on any technical problem, if only to be acquainted with the difficulties likely to occur. Indeed, if you ever have been or plan to be an expert witness, this book is a must read. You must know what you are up against!

One of the surprises in my career as an expert witness was the discovery that I do not present facts in my testimony; instead, the lawyer "develops" facts by his own argument. I simply provide data and an interpretation, and the lawyer establishes "facts" from them in his argument—a hangover from the rhetoric basis for the law. This puts science at a disadvantage, in that we scientists believe facts are established by recorded observation and reporting. One of Faigman’s more interesting points is that fewer than 10 percent of lawyers have any training in math and science, which is why they chose law school in the first place. I’d have thought the percentage even smaller from my experience, as technically trained lawyers tend to specialize in patents.

The book opens with a presentation of how the courts have changed since the writing of the Constitution until now, mostly through interpretation and reinterpretation driven by the politics of each era. There are many cases discussed, some quite famous (for instance, the Scopes Monkey Trial), that document the changing nature of the Supreme Court (and, by direction, the lower courts). There is much case law reviewed before even getting to Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire v. Carmichael, the current standards used to describe expert contributions to the courts. The rest of the book deals with science and the legislators and with the regulators and the science they choose, or are forced to choose by politics.

Because the two most common science-in-the-courtroom citations are Daubert and Kumho Tire, I was surprised that they constituted so little of the book. But then, the author’s objective was all the law, not just the courts. Daubert was a lawsuit about the possibility that a drug had caused a birth defect. There are two potential errors the drug may evidence: Type I, in which the error may occur in only 5 percent of cases, and Type II, in which the drug has absolutely no effect. Note also that scientific error estimates do not match what a judge calls a legal error. Before Daubert, the Frye Rule was used, which essentially said, "Is this science generally accepted by the scientific community?" After Daubert, the question of whether to accept scientific evidence is up to the judge alone! I'm thinking of calling my legislators to lobby for a law that would mandate that a brief from a trusted independent scientific source be used for any such decision a judge must make.

Kumho Tire dealt with who was at fault in an automobile accident after a tire blew out. In this case, the court decided a tire-company engineer could not testify about the tire structure as it affected the blowout or likelihood of blowout. Having worked for a tire company that had engineers doing just that sort of fault analysis in search of new composition and building techniques to improve tires, I was amazed at the decision. My suspicion is that the lawyer trying to introduce the expert erred in his qualification questioning and statements or in emphasizing "probable cause" as opposed to "absolute cause"—the latter being what the judge wants to hear. Even so, I am used to shaking my head at a judge's rulings on scientific evidence, if he pays attention at all—and that is not a given.

As one might imagine, the question of "what is science" is decided by the court, and the book contains commentary on the "fact" that psychiatry is a science. Some interesting battles on "recovered memory" ensued as part of that determination. Other interesting questions arise—for instance, "Is engineering a science?"

There are also some provocative statements. For instance, "Our task . . . is not to analyze what the experts say, but what basis they have for saying it." This is really an unhappy circumstance, in that few judges have the scientific background needed to assess the appropriateness of a chemical analysis or the statistical basis for believing the analysis, even if mean and standard deviation are reported. Some judges recognize that fact and rule against probability arguments in their courts, however persuasive.

One chapter deals with "When Science Is Politics." Faigman's examples are rape trauma syndrome and battered woman syndrome, and I would add recovered memory. He makes the point that until the courts are trained in the scientific method, they will not be able to sort science from pseudoscience. His opinion of the battered woman syndrome is based on the fact that the published research on it makes the cold fusion debacle look like Nobel Prize work. That's scary!

In his discussion of legislators, there is a fair digression on Big Science topics, such as the Superconducting Supercollider, space exploration, cloning and the like. It depicts the congressional milling about on such topics based on practically no science and lots of politics. In Faigman's comparison of the Roosevelt-through-Kennedy years to those that followed, I was struck by the change in focused leadership from a time when science flew high to the outright distrust of it nowadays. I don't recall a sudden change, but a shift did indeed occur. The change may have started with the Ralph Nader types' acquisition of influence.

One chapter subheaded "Bad Science and No Science" covers the science behind lie detectors, DNA profiling, handwriting identification, fiber and hair analyses and many others. For instance, one judge found there was no scientific basis for identification by handwriting.

Among other topics is the reintroduction of wolves into the mountain states. Naturally, many influential rural people didn’t want it, but the reintroduction did happen, and farm animals were lost in the process, as well as a few Yellowstone bison. Some wolves have been recaptured and put far away into the Rockies to help make the situation less volatile. Is this science or rather environmental-redress management or even nostalgia? The hypothesis is that there is science being observed and served with this reintroduction by bureaucrats, and the law is on their side. The next question, not asked or answered, concerns justification by real science. How is that done, and who does it to satisfy whom?

I should note that the regulators are driven by politics more than we'd like to admit. The Times Beach fiasco was well described in Are You Tough Enough? (1986), co-written by Anne M. Burford, who acted as EPA head for Reagan. The EPA troops had documented that the eco-hysteria in Times Beach was unwarranted, but Reagan decided to act because of the eco-hysteric press. His decision was made while Burford was addressing the Western Coating Symposium in San Francisco. As she had already registered her recommendation against it based on science, she knew it was a political decision and was disappointed.

Professor Faigman makes a big point on the loss of the OTA, the Office of Technology Assessment, whose function was to advise the Congress on science to determine whether a project was appropriate for research funding or was needed to solve a problem. Its most famous head was Russell Peterson, a former DuPont research director and a past Delaware governor. After a few years of running OTA, he had a battle with Ted Kennedy. Peterson won that battle but lost the war—as Kennedy helped decommission the OTA.

I was immensely entertained by this book, although it was a hard read. After all, it was written by a lawyer. But if you are ever involved in a lawsuit arguing points of science or engineering, you need to prepare by reading this book. Even if you plan to be involved, you must read this book, to ensure you are grounded enough in the frailties of a legal system that doesn't really understand science and is absolutely leery of scientists, truth be known. Having worked with many very good lawyers, I can attest that you can succeed, but don't be surprised at failure. It is part of the game, so recognize you did your best and that the system is flawed.

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