The Bright Line Business Law Blog

Anti-Evolution Stickers invalidated

I wrote about the Cobb County evolution creation trial a few months ago. The Georgia District Court’s opinion is here.

The case arises from a decision by the school board to place a sticker in the front of biology textbooks that says:

“This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with a n open mind, studied carefully, and critically considered.”

The plaintiffs, parents of children in the school district, claimed that the sticker violated the First Amendment’s Establishment Clause.  The trial court held correctly but unfortunately, that there is no bright line for evaluating establishment clause claims.”  Although I am generally in favor of such bright line evaluations, in this case, I can’t think of a workable bright line Establishment Clause test.

The test the Court used was set out by the Supreme Court in Lemon v Kurtzman 403 U.S. 602. In Lemon, the Court held that a government sponsored message such as the sticker in this case violates the establishment clause if it fails one of these three prongs:

1.      It does not have a secular purpose.

2.      It’s principal or primary effect advances or inhibits religion.

3.      It creates excessive entanglement with religion.

In applying the first of the Lemon prongs, the court held that the sticker had a secular purpose—in fact two of them.  First, the school board intended to encourage student critical thinking. Second, the school board wanted to reduce offense to those whose personal religious beliefs might conflict with the teaching of evolution.

The court noted that the school district had refused to teach evolution for many years and was updating its biology curriculum in 1999.  Knowing there would be a significant objection from many families the school board sought to soften the blow by including the sticker. The court found that this was the main purpose of the sticker.

In applying the second Lemon prong, the court considered whether a disinterested reasonable person would conclude that the sticker contained an endorsement of religion.  This fortunately, is usually a legal question based more or less on judicial interpretation of social facts, and here the court concluded that a reasonable person would conclude the sticker conveyed and endorsement of a certain form of religion,  and that such persons were favored members of the political community so as to require a sticker to assuage their more privileged concerns.

The court did examone the social and historical background of the evolution creation conflicts routinely occrruing in public schools.  It also focused on the wording of the sticker itself “Evolution is a theory, not a fact.”  This language tqken directy from many religious creationist claims is essentially a “code phrase” routinely used by creationists opposed to evolution. Its use displays either a religious intent or a fundamental ignorance of science and the history surrounding the debate.  The court did not find the school board members to be ignorant and noted the historically loaded connotation of the “evolution is a theory not a fact” phrase. As the court observed, The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief and this is exactly what the School Board appears to have done.

            Although the governmental action is invalidated if any Lemon prong is violated, the court went on to hold that the school board had effectively entangled itself with religion by taking a position that agrees with and endorses fundamentalists and creationists but not necessarily all other religious beliefs. 

Faulty Expert Testimony Results in Reversal of Conviction

Link: The Globe and Mail: Texas mother's conviction overturned.

Coincidentally after my last post, this sad case of Andrea Yates made the news.  Andrea Yates was the Texas mother who drowned her five children.  At trial she relied on the insanity defense, but he state's expert testified that she was not insane and had likely gotten the idea from a recent episode of the TV series Law and Order (she was apparently a big fan). It turns out that there was no such episode.

The case underscores the importance of the trial court's duties to ensure that expert testimony is reliable.  There are grave consequences for the legal system if improper opinions are admitted based on some claim that they are "expert" testimony. The trial judges really are the "gatekeepers" here.

Update:  Blog 702 has pertinent observations here.

Federal Science Reference Manual

Quite often, expert opinions can verge on the outlandish.  I’m sure there’s some reason to have expert testimony on UFO abductions, ESP and spirit channeling for some particular court cases. In my experience, the expert testimony is not so fanciful, but there will be attempt to dress up the expert’s purchased "junk science" opinion as based on some science, when in fact, it doens't qulaify as science. 

A quick review of how state courts handle expert opinion testimony is in order. In most cases, a witness can only testify on matters within the witness’s personal knowledge. Evidence Code § 702. Generally, a witness can only testify as a “percipient” witness.  “Perceive” means to acquire knowledge through the senses.  Evidence Code § 170. Such witnesses testify only about facts, not opinions, in court.  There are some matters in which such witnesses can express opinions, but those are limited. Evidence Code §800. Evidence Code § 813 permits a property owner to offer an opinion on the property’s value, for example. And if you are an “intimate acquaintance of a person, you my render an opinion as to that person’s sanity without any medical qualifications. (This bit of legal trivia comes in handy at cocktail parties!) Evidence Code § 870. Also, if you are familiar with the handwriting of another you can express an opinion on whether a document is in that person’s handwriting.  Evidence Code § 1416. (I’ll leave aside the sometimes difficult question of distinguishing between “facts” and “opinions.”)

Nevertheless, the general rule is that only experts can provide opinion testimony at trial. Opinions are limited to those sufficiently outside common experience that they would be useful to the trier of fact.  They must also be based on the expert’s qualifications, including special knowledge, skill, experience and training. Quite often the expert’s opinions will sound scientific but will not be.  It will be up to the attorney to prevent unqualified “junk science” from coming into evidence.

There are two sections of the evidence code that provide for this procedure.  First, Evidence Code § 802 permits an expert to be examined on the basis for the opinions by the opposing party before being permitted to express the opinions.  The preliminary facts, such as the qualifications of the expert and whether the opinion will help the trier of fact at all, or is merely “junk science,” can be determined by the court outside the presence of the jury in a hearing conducted under Evidence Code § 402.  Often this issue is raised in a pretrial motion in limine.

Challenging junk science opinions should begin by defining “science” to the court.  Here, the Federal Judicial Center has been particularly helpful by publishing its “Reference Manual On Scientific Evidence.”  As this is from a neutral and scholarly source heavily relied upon by federal judges, it should be persuasive to state judges as well.  This document is lengthy but should be reviewed before the deposition of any dubious experts in a particular case so that the questions relating to the science can track the manual and provide later support for the motion in limine, or questioning at a 402 hearing or at voir dire at trial. There is no question that a lot of junk science testimony gets into the courtroom becasue it is not challenged by the opposing side.  This Manual provides the general informaiton needed to challenge a "junk science" expert.

It is important that the expert you have hired understands the legal rules regarding experts and the necessity to be able to back up the opinions expressed.  If you are faced with an opposing expert who is professing some form of junk science, then the Reference Manual should be reviewed prior to that expert’s deposition so that the answers to deposition questions can be used as a basis to exclude the expert’s junk science opinions on a motion in limine, at a 402 hearing or during trial when the expert can be cross examined on voir dire.

I will analyze California’s legal standard regarding admissibility of expert testimony and compare it with the federal standard in a later article.

Circuit Court of Appeals Blogger

Seventh Circuit Court of Appeals Judge Richard Posner is "guest blogging" at the Leiter Reports. There are several great entries on Judge Posner's theories on natural law, appellate jurisprudence, free will and punishment, faith based morality and precedential authority of foreign courts decisions.  I found all of the articles and comments to be very thoughtful, and well done to Brian Leiter, Professor of Law, University of Texas, wholse blog is often provocative yet thoughtful.  Through January 2.

Mold Junk Science Information

Check here for  Junk Science Mold Info. Most of the mold litigation I've been involved with seems to involve junk science. I'm open to persuasion, but after attending a number of depositions of "mold experts," I put mold into the "junk science" category.  I'm glad to see that others agree.

Step 1 Legal Writing Tips

1.         Have the point.

            

            Lawyers prepare three kinds of documents:  persuasive documents, information documents, and what I call “operative” documents.  Persuasive documents include legal briefs written to a judge or letters to opposing counsel advocating a client’s legal position.  If the point is not clearly made, the persuasive power of the document is lost.  In fact, if the judge or opposing counsel don’t grasp the point, persuasion is usually impossible.

Information documents are intended to provide information and legal analysis describing various potential courses of action and discussing potential remedies.  Information documents include research memoranda, status reports to insurance carriers and opinion letters to clients.  These documents are written to an audience, such as a board of directors or corporate office claims adjuster, who will make a decision to choose between one of several legal options being presented in the document.  Again, the key to informational legal writing is to clearly identify and to accurately describe the facts and applicable law applicable to each option.  If the client didn’t grasp each option and the basis for each option, the client won’t get the point of the argument and could make a disastrously poor legal decision.

            Operative legal documents include contracts, judgments, wills, trusts, articles of incorporation, legal disclaimers and settlement agreements, for example.  The point of these documents is to resolve a client problem through the legal power of the document itself, without the need to resort to further adversarial legal proceedings.  We want our carefully drafted will to be probated without challenge.  We want our contracts to successfully control the enterprises without litigation over the terms of the contract and we want homeowners and the homeowners association board of directors to be able to understand the CC&R terms the same way, as much as possible.  If the operative document is unclear, then the result will be  unnecessary and expensive litigation.

            Whether a legal document is persuasive, informational or operative, if the purpose of the document is clear, it is more likely to be effective – a goal desired by all lawyers - to be effective, make the point clearly and soon.  In the next section, I discuss some means to make that point.

PointofLaw.com | Information and opinion on the U.S. litigation system

Point of Law is a great site for national legal news. I highly recommend it.

Link: PointofLaw.com | Information and opinion on the U.S. litigation system.

This post deals with Code of Civil Procedure Section 998 offers. These are not as effective as they could be because they do not generally result in an award of attorneys fees unless the prevailing party is already allowed to recover attorneys fees by statute or by contract. In the typical tort action there is no underlying right to attorneys fees and Section 998 doesn't create one.

Medical Malpractice Myths

William Brody, President of Johns Hopkins, has a great article in the Washington Post on myths of Medical Malpractice.

Here's a sample:

And a recent study by Harvard University researchers found that 80 percent of malpractice claims were filed against doctors who had made no error whatever. For instance, recent articles in scientific journals have documented that many, if not most, cases of birth-related cerebral palsy -- cases in which juries tend to be highly sympathetic to plaintiffs -- are not the result of malpractice by obstetricians. Juries often deliver sizable awards against providers who commit no errors for what are unfavorable, but random, outcomes of nature.

And one chief culprit is a failure of judges to control expert witness testimony.  Under Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993), the U.S. Supreme Court declared that federal judges were the "gatekeepers" and should keep junk science and unsubstantiated expert opinions from the jury.  If the quoted paragraph is true, that is not happening at the state level, and I know it is not happening in California, where the courts have particularly disclaimed the gatekeeper role in medical malpractice cases.  A typical example of this is Roberti v. Andy's Termite and Pest Control 113, Cal.App.4d 893, 6 Cal.Rptr.3d 827. In that case, plaintiff offered medical expert testimony that  Dursban caused plaintiffs autism.  The trial judge applying California's equivalent of Daubert, the Kelly test, wouldn't permit the expert to testify. [People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976)]

The court of Appeal reversed, holding that the Kelly analysis only applies to novel scientific evidence or techniques, not to expert opinion of medical causation even if the expert opinion on causation had not gained general acceptance in the relevant medical community.  The court of appeals specifically rejected defendant's suggestion that California courts employ the Daubert gatekeeper analysis. This allows all kinds of wild medical theories to be admissible and explains why cerebral palsy cases are so lucrative even though there is no scientific connection between the medical services rendered and the cerebral palsy.

Potentially, it is possible that a medical expert's opinion is just too conclusory, or in the words of one medical expert, "It just sort of makes sense." Jennings v. Palomar Pomerado Health Systems, Inc., 114 Cal.App4th 1108, 8 Cal.Rptr.3d 363 (2004). But, such rulings are too rare. If courts would act more like gatekepers and more frequently exclude dubious opinions, then there may be a reduction in unfounded medical malpractice cases.

Evolution and Creationism Collide in Federal Court (yet again)

Execpt for sex eduction, Evolution is probably the most controversial matter in school education. Ever since the 1925 Scopes trial, battles between evolution and creationism have raged.  Courts cannot ingnore the religious overtones of creationism. To determine whether an activty is Constituional, courts analyze the issues under the Lemon test.

The  Lemon Test is based the holding of  Lemon v. Kurtzman 403 US 602 (1971). In Lemon, the court held that state programs  supplementing the salaries of religious parochial school teachers who teach secular subjects violated the Establishment Clause.

The Lemon court set out a three prong test to analyze potential Establishment Clause violations. A statute will be upheld if all three are met.

1.                The statute must have a secular legislative purpose

2.                 Its principal or primary effect must be one that neither advances nor inhibits religion.

3.                 The statute must not foster "an excessive government entanglement with religion."

In Cobb County, the school board required placing a sticker in the high school biology textbook, which says:

This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.

Since other textbooks, such as history and physics texts, don’t require this sticker and only a biology book discussing evolution was subject to the requirement, the very first prong of the test is at issue. School Board members testified at the trial  that the sticker was placed because of the concerns of Christian parents, suggesting that there is also an issue with the second prong, as well.

This case was a bench trial, so a decision will be rendered soon. I am interested in these cases because they frequently misuse experts and scientists.  Interestingly, this judge must have thought so, too, because he refused to hear expert testimony at trial. I'll discuss the implications for experts and Daubert in later posts.

Proposition 64 Passes, Good News for Small Businesses

Election results show California Proposition 64 passing. Proposition 64 made relatively minor changes to Business and Professions Code Section 17200 and 17500, the California Unfair Business Practices Act and Unfair Competition Act.

Prior to the Initiative, any person could file a complaint against any business entity for unspecified "unfair business practices." Nearly anything could be characterized as unfair competition or unfair business practices. Typically an unscrupulous lawyer "plaintiff" would sue an unsuspecting business under the act and then offer to dismiss the suit for a "reasonable" sum of money, usually $5,000 or so. They would count on the defendant's own lawyer telling the defendant that extortion settlement was cheaper than litigation. Most settled.

Now, the initiative has changed the standing requirement. Any City attorney, district attorney or the Attorney General's office can file suit under the Unfair Business Practices Act, as they always could. However, private citizens who also could previously sue under the act, can now sue only if that private citizen has "suffered injury in fact and has lost money or property" as a result of any unfair business practices. This modest change in the law will allow defendants who are unfairly sued to have non-meritorious cases economically dismissed very early in the proceedings.  I predict that the rampant abuses under the law will dramatically decline.

Here is the text of the Inititative, with additional information.