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Resolving Daubert Challenges

Appeal

    Parties pinning their hopes on successful appeals from Daubert rulings are parties in trouble.  This is not to say that counsel should shy away from appealing Daubert decisions that rest on questionable or controversial grounds.  Many such appeals succeed.  But failure is statistically likelier.  Currently, roughly 85 per cent of all Daubert rulings are affirmed on appeal.

Should the Daubert Ruling Be Appealed at All?

    Every practicing litigator has confronted the scattershot appeal, where the appellant raises fifteen or twenty separate arguments for reversal, each less meritorious than the last.  A similar impression of desperation can be created when appellants challenge the trial court's every evidentiary decision.  Admittedly, there are times when a district court's Daubert rulings go to the heart of the case and appeal from them is the only alternative to ignominious defeat.  But there are also times when an appellant must choose the two or three most salient grounds for appeal and focus single-mindedly on those, eschewing all distractions.  Daubert appeals often require in-depth analysis of obscure technical testimony, and are best reserved, if possible, for occasions when there is something clear and convincing to say.  One clue: The courts of appeals have already heard about the sacred role of the jury in our adversary system.  They have also heard about the vital importance of the Gatekeeping Function.  They will not normally be impressed to hear about either again.

Transcripts and Appendices

    Litigators are temperamentally disposed to believe that their advocacy is the most important determinant of success, but in many Daubert appeals, it is the expert's testimony that will control the outcome.  The first thing to do, therefore, is to make sure that the court of appeals has ready access to the relevant testimony.  This is accomplished, in most circuits, through the parties' preparation of some form of appendix.  The rules say that the entire record before the district court is available to the court of appeals, whether included in the appendix or not.  It is naive to assume, however, that every appellate panel will scour the docket sheets from proceedings below in search of helpful information.  The basic point of the appendix is to provide the panel with the key documents essential to disposition of the appeal, and counsel should not be reticent about including appropriate material.  See Veile v. Martinson, 258 F.3d 1180 (10th Cir. 2001).

    Appellate counsel can consult Fed. R. App. P. 30 as a point of departure, but most circuits have their own specific rules about the content and format of the appendix, and these should be obeyed with religious fervor.  Commonly, the circuits' rules call for inclusion of any testimony pertinent to the points raised on appeal.  This is the proponent's opportunity to include the expert's brilliant report, and objecting counsel's opportunity to include the withering voir dire (which cannot become grist for appellate appreciation, however, unless the transcript is ordered).

Briefing

    Daubert discussions voraciously devour scarce briefing space, and should be ruthlessly pared to the essentials.  It will often be impossible, in the space permitted, to offer a complete recapitulation of the expert's analysis, let alone a full chronicle of its tortured path from report and deposition to trial via motion in limine.  It may often be wisest, therefore, to write just enough to get the panel interested in reading the record for themselves -- a very basic roadmap for affirmance or reversal.  It is terrifically difficult to keep it short while covering the essentials and maintaining legibility for the general reader.  But usually, one's only hope is to ignore the capillaries and go for the jugular.

Argument

    The usual time limit for oral argument in a moderately complex appeal is in the neighborhood of twenty minutes.  Plainly, the oral argument will not cover more ground than the trial, or the expert testimony, or even the appellate briefs.  It is delusional, in other words, to believe that oral argument will provide an opportunity to go into greater detail about (say) the epidemiology of gestational diabetes in Newfoundland.  Once again, counsel should usually abandon any attempt to be exhaustive, focusing instead on providing a clear and eloquent summary that may inspire further appellate reflection and investigation.

    This is not to say that appellant's counsel, in particular, should be anything other than breathtakingly conversant with every detail of the relevant expert analysis.  If counsel for appellant should be so lucky as to run across a panel member with an obscure question about the fourteenth study cited in the expert's sixth supplemental bibliography, the answer to that question should come trippingly from counsel's tongue.  Not only will such mastery of the record help counsel to fan any stray sparks of appellate interest; it will also signal that counsel, at least, sincerely believes the issues to have been worthy of his or her serious study -- and, by extension, worthy of the appellate court's careful and thoughtful review.

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