Using Statistics in Litigation: A Research Guide Robin R. Gault February 24, 2005

“For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457, 469 (1897).

What do these things have in common? Discrimination claims Products liability Trademark dilution Forensic identification Economic damages calculation

All of these and many more issues in litigation involve an effort to prove (or disprove) the allegations with statistics. “Figures speak and when they do, Courts listen.” Frequently repeated maxim in court cases. See Brooks v. Beto, 366 F.2d 1, 9 (5 th Cir. 1966)

At the same time, we have all heard the saying (attributed to Mark Twain and/or Benjamin Disraeli), that there are “lies, damn lies, and statistics.” How can we help to ensure that the statistics we deal with in litigation are accurate and useful?

“Statistics, broadly defined is the art and science of gaining information from data. For statistical purposes, data mean observations or measurements, expressed at numbers.... The field of statistics includes methods for (1) collecting data, (2) analyzing data, and (3) drawing inferences from data.” (Reference Manual on Scientific Evidence 85)

Statistics is the language of science and social science. Experts in fields as disparate as economics, engineering, and psychology may use statistics in their work.

The use of statistical evidence in litigation appears to be increasing. Researchers also see increasing sophistication in courts’ use of statistics. Some authors suggest that juries may expect statistical evidence in certain kinds of cases.

Statistics for Lawyers There are many print and web-based resources intended to offer guidance in the use of statistics. I have selected a few that seem especially helpful or especially accessible. There are suggestions at the end of the presentation for places to look for more information.

Prominent among the non-experts who must made crucial decisions about statistical evidence are judges. The two resources listed below were created for use by judges.

David H. Kaye and David A. Freedman, Reference Guide on Statistics, in Reference Manual on Scientific Evidence, 2d. ed. (Federal Judicial Center, 2000.) [KF 8961 A75 R ). Click on link on FJC page: The entire book is well-known and widely cited. It includes chapters on statistics, multiple regression, and survey research. It can be downloaded at no charge. Kaye and Freedman offer good suggestions about what you should look for in your own or your opponent’s evidence.

Shirley A. Dobbin, Ph.D., and Sophia I. Gatowski, Ph.D., A Judge’s Deskbook on the Basic Philosophies and Methods of Science: A Model Curriculum (State Justice Institute, 1999). Less well-known than the Reference Manual, this teaching tool includes a chapter on Data Analysis: An Introduction to Statistics. May be downloaded at no charge.

Print resources for attorneys: Chapter 15: Statistical Evidence in Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, 3d ed. (Lexis, 1999) [KF 8961 G Also in Lexis, filename 2DARY; SCIEVD] This is somewhat more technical than the first two sources.

Hans Zeisel and David Kaye, Prove It with Figures: Empirical Methods in Law and Litigation (Statistics for Social Science and Public Policy) (Springer, 1997) [KF 320 S73 Z ] Includes a variety of topics, such as coincidence and significance, sampling, trademark surveys, and jury selection. The notes at the end are very good.

Michael O. Finkelstein and Bruce Levin, Statistics for Lawyers, 2d ed. (Statistics for Social Science and Public Policy) (Springer 2001) [QA F ] Considerably more technical than the other works mentioned here, this includes a wide variety of examples drawn from actual cases.

Joseph L. Gastwirth, ed., Statistical Science in the Courtroom (Statistics for Social Science and Public Policy) (Springer, 2000) [K 5485 S ] A collection of essays by statisticians and legal scholars, many of whom have served as consultants or expert witnesses. This addresses issues about the use and misuse of statistical evidence and the role of experts.

Stephen E. Fienberg, ed., The Evolving Role of Statistical Assessments as Evidence in the Courts (Springer-Verlag, 1989). [On order by Law Library] A project of the National Research Council, this report examines a variety of issues such as differences between legal and statistical thinking as well as the use of statistical evidence in specific areas of law.

Admissibility of Statistical Evidence For much of the 20 th century, federal and state courts used the “Frye test” (Frye v. United States, 293 F (D.C. Cir., 1923)) when considering the admissibility of scientific evidence. It required that the science on the which the expert opinion was based have gained “general acceptance” within the scientific community.

In 1993 the Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, that the adoption of the Federal Rules of Evidence in 1975 superseded Frye. The Court articulated a more “flexible” standard.

The trial judge must determine whether the underlying reasoning or methodology is scientifically valid and should be applied to the facts of the case. In 1999 in Kumho Tire (526 U.S. 137) the Court extended this standard to all “technical” or other specialized knowledge.

Judges as “gatekeepers” - The precise requirements of Daubert are the subject of debate among commentators, but there is no doubt that it puts a greater “gatekeeping” burden on judges. (Hence, the creation of the guides for judges that I introduced in the first part of this talk.)

Web resources on admissibility in federal courts: Federal Rules of Evidence with notes from the Cornell Legal Information Institute: See especially Rules 702, 703, 705.

Margaret A. Berger, The Supreme Court’s Trilogy on the Admissibility of Expert Testimony, in Reference Manual on Scientific Evidence. A good, general introduction to the issues raised by Daubert and subsequent cases.

Daubert on the Web: A website maintained by a Philadelphia attorney, with summaries of all Daubert cases since 2000 and many useful links. Daubert Expert: Website maintained by Florida attorney who consults on Daubert issues.

Print resources: Chapter 1: The Legal Standards for the Admissibility of Scientific Evidence, in David L. Faigman, David H. Kaye, Michael J. Saks, and Joseph Sanders, eds., Modern Scientific Evidence: The Law and Science of Expert Testimony (West, 1997) [KF 8961 M ; also in Westlaw, filename MODSCIEVID]

Chapter 1: Scientific Evidence, in Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, 3d ed. (Lexis 1999) [KF 8961 G ; also in Lexis, filename 2DARY; SCIEVD]

Admissibility in Florida Florida courts continue to use the Frye test. Charles W. Ehrhardt, Florida Evidence (Thomson/West, 2004) [KFF 540 E528, also in Westlaw at FLPRAC-EVID]

Information on the Web: 1999 article on Judicial Gatekeeping in Florida: Stephen Mahle, Business Litigation Expert Testimony in Florida State and Federal Courts, in Business Litigation in Florida (Fla. Bar, 2001) [KFF 152 B ]

Admissibility of statistical information not created for litigation: Government compilations of statistics may be admissible as public records under FRE 803(8). Other compilations may be admissible as “market reports or commercial publications” under FRE 803(17) or “learned treatises” under FRE 803(18).

Litigating in Specific Areas A few selected topics: Discrimination: Ramona L. Paetzold and Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases (Thomson/West, 2002) [KF 8925 D5 P ; also in Westlaw, filename STATDIS]

Forensic evidence: David L. Faigman, David H. Kaye, Michael J. Saks, and Joseph Sanders, eds., Modern Scientific Evidence: The Law and Science of Expert Testimony (West, 1997) [KF 8961 M ; also in Westlaw, filename MODSCIEVID]

Forensic evidence, cont. Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, 3d ed. (Lexis 1999) [KF 8961 G ; also in Lexis, filename 2DARY; SCIEVD] The Evaluation of Forensic DNA Evidence (National Academy Pr., 1996) [RA E , also e-book available at FSU – see entry in library catalog]

Damages: Robert E. Hall and Victoria A. Lazear, Reference Guide on Estimation of Economic Losses in Damages Awards, in Reference Manual on Scientific Evidence.

Business litigation: Attorney Stephen Mahle has several articles on business litigation on the Web: tml#legalviewhttp:// tml#legalview urities.htmlhttp:// urities.html rust.htmlhttp:// rust.html

Expert Witnesses on Statistics You may need experts in several fields as part of a case: “Statisticians often advise experts in substantive fields on the procedures for collecting data and often analyze data collected by others. Cases involving statistical evidence often are (or should be) ‘two-expert’ cases of interlocking testimony.” Kaye & Freedman, Reference Manual, 87.

How do you find expert witnesses? One approach is to read books and articles on your topic and see who is nationally known in this field. If you need someone nearby, a local university may have qualified faculty.

There are directories of expert witnesses, including several on the Web: ExpertLaw: JurisPro:

The Federal Rules of Evidence allow courts to hire their own experts. The American Association for the Advancement of Science sponsors a project which provides experts to courts:

Finding More Information Bibliographies on the Web: David H. Kaye, Publications [by Kaye] on Statistics, Probability Theory and Evidence s.htmhttp://homepages.law.asu.edu/~kayed/pubs/p_l s.htm Will Yancey, Statistical Evidence in Litigation htmhttp:// htm

Links to sources of statistics: The Virtual Chase – Legal Research Guide: Statistical Resources s.htmlhttp:// s.html University of Michigan Documents Center: Statistical Resources on the Web

Finding articles and books: For articles, go to FSU Databases: LegalTrac and Index to Legal Periodicals are included here. For books, search IndexMaster (available from within Law Library only): This searches the indexes and tables of contents from many law book publishers.