This article was prepared for presentation at the 2006 Annual Meeting of the Law and Society Association, Baltimore, Maryland, July 5–9. Funding for this project was provided by the Project on Scientific Knowledge and Public Policy under an unrestricted grant from the Common Benefit Trust, a fund established pursuant to a court order in the silicone gel breast implant products liability litigation; data collection was made possible by a sabbatical leave from the University of Wisconsin. I thank all the lawyers who spoke with me, and particularly the lawyers at “Etling, Burke & Howe, LLP,” who welcomed a stranger into their midst for three-and-a-half months in the fall of 2004. I also thank Les Bodin and the anonymous reviewer for their helpful comments on a previous version of this article, and the faculty of the University of Iowa College of Law for the opportunity to present and discuss the results of this research.
Daubert in the Law Office: Routinizing Procedural Change
Version of Record online: 4 FEB 2008
©2008, Copyright the Author
Journal of Empirical Legal Studies
Volume 5, Issue 1, pages 109–142, March 2008
How to Cite
Kritzer, H. M. (2008), Daubert in the Law Office: Routinizing Procedural Change. Journal of Empirical Legal Studies, 5: 109–142. doi: 10.1111/j.1740-1461.2007.00120.x
- Issue online: 4 FEB 2008
- Version of Record online: 4 FEB 2008
The U.S. Supreme Court's pronouncements on the standards that should govern the admission of scientific and other expert testimony, what is commonly referred to as the Daubert Trilogy, has produced substantial legal commentary and a growing body of empirical research. Most of that research focuses on decisions by courts on Daubert challenges; while there are some speculative discussions on the broader impact of Daubert, there is minimal empirical research assessing the impact of Daubert more broadly on the litigation process. Drawing on a combination of observation in a law firm and a series of interviews with practitioners, this article describes the process of decision making about Daubert-related issues. The conclusion drawn from the analysis is that Daubert has become a routinized aspect of the litigation process in a range of cases, few of which deal with the kind of controversial or innovative science at the heart of the original Daubert case.