TALLAHASSEE - Oral arguments have been set for Sept. 1 to decide the standard Florida courts will use to approve expert testimony in civil and criminal cases.

The Florida Supreme Court, however, is a little late to the party. The standard was actually settled three years ago - or at least should have been - when the legislature approved the modern Daubert Standard, one established in the federal courts in 1993, and then later adopted by a majority of states.

But the trial bar intervened in the process, and now has the Supreme Court, through a recommendation from the Florida Bar Board of Governors, considering overruling the legislature. The trial bar prefers the 1923 Frye Standard, which can greatly expand the scope of what can be considered expert testimony.

Attorney Timothy M. Moore of Shook Hardy & Bacon in Miami explained the difference between the two: Daubert asks whether the data is sufficient, if it’s based on reliable principles and if those principles are reliably applied. Frye asks if the science the testimony is based on is generally accepted by the scientific community.

“There is no question that Daubert is the superior standard,” Moore said. “Besides being more stringent, it puts a judge in more of a gatekeeper role. Frye, and another standard used in some instances that relied on pure opinion (Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), could result in bringing in someone who claims to be an expert by just hanging a shingle.”

While the legislature apparently believed that Daubert was superior as well, the bill’s sponsor in the Senate, Garrett Richter (R-Naples), said lawmakers still had to “fight off the trial bar for years” to get the bill through.

The Supreme Court’s involvement comes via a provision in the Florida Constitution that gives the courts full jurisdiction over procedure, while the legislature has say over substance.

Complicating the matter is that the proposed change includes both procedure and substance. In order to avoid turf battles between the branches, the Supreme Court years ago adopted a legislatively approved “Evidence Code.” The few disputes that have occurred over legislative changes to the Evidence Code have been constitutional questions, or ones that the Court simply didn’t see the need for the change, not turf considerations.

Initially, the Florida Bar appeared as though it would recommend adoption of Daubert.

In two straw votes in 2013, the Bar’s Code and Rules of Evidence Committee (CREC) overwhelmingly favored Daubert. But halfway through 2014, one-third of the members of CREC were replaced with their terms expiring. Daubert then lost out. The Bar’s Board of Governors, following a final CREC vote, recommended that the Court not adopt the Daubert standard.

Richter said he has no doubt that the trial bar “co-opted” the committee when its complexion changed.

Hundreds of comments have since poured into the Court.

William W. Large, president of the Florida Justice Reform Institute, was among those to comment.

“The Committee (CREC) serves an important purpose but it is neither a democratic institution nor a constitutionally established, coordinate branch of government,” he stated. “Its members are not elected and have no constituency. Where the committee’s recommendation conflicts with the considered judgment of the legislative branch, the committee’s recommendation is entitled to no precedence over the legislative will.”

David A. Jones of Holland & Knight in Orlando spent hundreds of hours reviewing the issue.

He said it’s unclear how the court would rule but it could go so far as to declare Daubert unconstitutional. Then the state would revert to Frye.

“At that point, the Legislature either licks its wounds or we get into an ugly turf war,” Jones said.

For his part, sponsor of the Daubert legislation in the House, Larry Metz (R-Yalaha), said that in his comments to the Supreme Court he asked that the ruling be based on which standard is the better policy not who has the final say.

“We shouldn’t get hung up on who decides what,” Metz said.

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