The Florida Bar

Florida Bar Journal

November, 2014 Letters


Expert Witness Testimony
This letter responds to “Adoption of Daubert in the Amendment to F.S. §90.702 Tightens the Rules for Admissibility of Expert Witness Testimony” (Sept/Oct). In fact, whether in theory or in practice, the rules have not been tightened for expert witness testimony admissibility.

In theory, Daubert is not necessarily more or less restrictive than Florida’s version of Frye, which includes a “pure opinion exception” for expert testimony given novel or new areas of expertise and science. True, Daubert enumerates different factors. But the authors cannot point to anything Daubert mandates considered that judges did not in fact consider in the Frye era. The authors do point to the U.S. Supreme Court’s decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), which is good, because the Court goes out of its way in that opinion to discuss the “liberal” and “flexible” admission standard for expert testimony. How this makes Daubert more restrictive than Frye is, again, a matter of mere assertion.

The authors go as far as to say the Florida Supreme Court is clearly wrong that the Frye standard is a higher threshold to surmount than Daubert. Yet, the article does not present any evidence, study, or case that explains why the authors’ statement is true and the Florida Supreme Court is wrong. That’s because the evidence for the authors’ conclusion is at best inconclusive but more probably just wrong.

The only comprehensive study of which this author is aware on the subject was done by Edward Cheng and Albert Yoon, called “Does Frye or Daubert Matter? A Study of Scientific Admissibility,” published in the April 2005 edition of the Virginia Law Review. It shows beyond doubt that there is no real difference in courts under differing admission standards. That’s because, in practice, no judge is wont to let unqualified or unhelpful expert testimony into her or his courtroom.

Perhaps, the great irony of the article is that even this author admits the article would be more likely to be admissible under Frye than Daubert. The real takeaway for any litigator is to continue to follow the Frye approach, as restated in Daubert. For well-tested principles, explain why they’re accepted principles. For novel ideas or theories, a litigator must show that the expert’s expertise and training are enough to support the reliability of the testimony.

Christian W. Waugh, Lady Lake

Access to Justice
In their solutions to give the lower classes “access to justice,” the Florida Supreme Court chief justice and the Florida Bar president are trying to lead us where this organization tried and failed to go more than 45 years ago. They once again are envisioning a state answer to a national problem. See Russell Troutman et al., v. Sergeant Shriver, director of the Office of Economic Opportunity (“OEO”) and the United States of America, 273 F. Supp. 415 (M.D. Fla. 1967), aff’d, 417 F.2d 171 (5th Cir. 1969).

Troutman, who became a Florida Bar president, wanted “the privilege and obligation of providing legal services to those who could not otherwise obtain representation but he did not want to compete with federally funded attorneys.” Several local Florida bar associations agreed. All were denied standing to object to creation of a federally funded legal services program.

The plaintiffs clearly were not happy with the limited role of Bar organizations in the federal law: “The (OEO) Director shall make arrangements under which the State bar association and the principal local bar associations in the community to be served by any proposed project authorized by this paragraph shall be consulted and afforded an adequate opportunity to submit, to the Director, comments and recommendations on the proposed project before such project is” “approved or funded, and to submit, to the Director, comments and recommendations on the operations of such project, if approved and funded. 42 U.S.C.A. 2809(a)(3).”

In those OEO years, several Florida Bar members, including former Attorney General and U.S. Congressman Bill McCollum (R-Fla) worked to limit federal funding and curtail the activities of the lawyers serving the poor. Gov. Claude Kirk (R-Fla) threatened to veto the federally-funded legal services program for migrant workers because of their threat to farmers, that is, to a key component of the business community.

Chipping away at OEO Legal Services, the Richard Nixon Administration finally forced creation of an “independent” Legal Services Corporation (LSC). LSC board members and directors could be controlled. the 1980s, under President Ronald Reagan, LSC became a shadow of its old self. Kaimowitz, “The Legal Services Corporation Has Forgotten Its Mission,” 17 ABA Human Rights 41 (Summer 1990).

Now apparently Florida Bar leaders on and off the bench want to drive in the final nail in provision of effective legal services. Instead of empowering the poor, the Bar president suggests returning to the days of the legal aid divorce mills, when lawyers are provided to both sides and each of the children as well. Such advocates do not have time for discrimination class actions or test cases.

The chief justice would broaden the eligibility of recipients to include, e.g. , locally tax-funded police officers and fire fighters who are going through divorces or foreclosures. What about school teachers? Class actions?

To decide the ultimate solutions, the Bar leaders would consult with the business community. I respectfully dissent.

Gabe Kaimowitz, Gainesville

Errata: AAA Fees
In the article I wrote for the Florida Bar Journal, “What Does It Cost for AAA, JAMS, or CPR to Administer an Arbitration Case and How Do the Initial Filings Vary?” (July/August), I miscalculated the filing fees for two of the three examples for the American Arbitration Association (AAA). The proper formula to determine an AAA filing fee for a claim above $10 million is a base fee of $12,800, plus. 01 percent of the amount above $10 million. For the example given for a $20 million claim, the base AAA fee would be calculated as follows:

• Base AAA filing fee for claim above $10 million: $12,800

• Plus. 01% of amount above $10 million (+$10 million): $1,000

• Total AAA filing fee for a $20 million claim: $13,800

• Plus $6,000 final fee, which totals $19,800

1. While I miscalculated the filing fee for the $20 million claim in the original article, the calculation of the administrative fee for the $5 million counterclaim would remain the same. Thus, the AAA administrative fee for the $20 million claim and $5 million counterclaim is a total of $31,250 and not $40,250 as was erroneously stated in the article.

2. I also miscalculated the total amount for the $5,000,100 claim as $20,250, which should have been $18,250.

Coincidentally, the AAA rolled out new rules on June 15, 2014 (months after my article was written and submitted to The Florida Bar Journal ), the “Supplementary Rules for Fixed Time and Cost Construction Arbitration.” These new rules allow parties to significantly reduce both the administrative fees and the arbitrator fees if they agree to use them.

I regret my error and hope this correction clears up any confusion I may have created.

Larry Leiby, Ft. Lauderdale