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Florida Bar punts on controversial evidence standard

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The Florida Bar’s Board of Governors on Friday postponed consideration of taking a formal stand on an evidence law change favored by Gov. Rick Scott and conservative lawmakers.

The change was actually passed into law two years ago but the courts have yet to follow it.

Bar spokeswoman Francine Walker said the board, meeting in Atlantic Beach, “tabled” an agenda item on the Daubert standard. Members needed more time to study it; the item will be back at the December meeting, she said.

The move staves off further confrontation between corporate lawyers, who agitated for the change, and the state’s trial attorneys, who want the status quo.

Here’s why: Florida historically has used the Frye standard, which asks whether expert testimony is “generally accepted” in a particular scientific community. Daubert, or the federal method as it’s also called, is stricter scientifically and can often require a kind of “mini-trial” even before an expert can appear in front of jurors.

It’s generally considered easier for plaintiffs to get damaging expert testimony before a jury under Frye, and much harder to do so under Daubert, thus the latter became a favorite of the defense bar and its big business clients.

But two years ago, the Legislature approved and Scott signed into law the changing of Florida’s expert evidence standard from Frye to Daubert, used by federal courts and most states.

A Bar advisory panel took the position that Florida should “not adopt” the change to Daubert, and also is recommending against another change from 2013, one that “restricts the kinds of expert witnesses that may testify in a medical-malpractice case about standards of care.”

The state constitution “grants the Legislature authority over substance and the Florida Supreme Court authority over procedure, which the court often promulgates as ‘rules,’ ” The Florida Bar’s Committee on Rules of Evidence wrote in a memo. It’s in contention whether changing the expert testimony rule is substantive or procedural.

In any case, the Supreme Court may periodically consider “whether to adopt, to the extent they are procedural, the Legislature’s changes to the Evidence Code.”

The Board of Governors may yet offer its own recommendation to the court, based on the committee’s position.

Before joining Florida Politics, journalist and attorney James Rosica was state government reporter for The Tampa Tribune. He attended journalism school in Washington, D.C., working at dailies and weekly papers in Philadelphia after graduation. Rosica joined the Tallahassee Democrat in 1997, later moving to the courts beat, where he reported on the 2000 presidential recount. In 2005, Rosica left journalism to attend law school in Philadelphia, afterwards working part time for a public-interest law firm. Returning to writing, he covered three legislative sessions in Tallahassee for The Associated Press, before joining the Tribune’s re-opened Tallahassee bureau in 2013. He can be reached at jim@floridapolitics.com.

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