Saturday, November 12, 2011

DAUBERT STANDARD AND DIVORCE TRIAL by Flint Divorce Laywer, Attorney Terry Bankert 235-1970

 In a Flint  divorce trial often witnesses with an expertise on important issues are used. Regular people can be used to inform the court as lay witnesses. The courts decision to let them testify inviolves a determination that  they are competent ( have personnal knowledge and ability to communicate) with a courts preference for facts not opinion. see Michigan Rules of Evidence  [MRE] 601, 601 and 701.

If you have a Flint Divorce question Contact a Flint Divorce Lawyer, Attorney Terry R. Bankert 810-235-1970.

If you want  your Flint witness treated with the respect of a true expert the rules are different. see MRE 702-703.

To be treated seriously by the court this Flint witness  must be " qualified"  as an expert and must have applied  RELIABLE PRINCIPALS AND METHODS TO THE FACTS OF THE CASE  MRE 702-703.

OUR FLINT DIVORCE   COURT JUDGES ARE GATE KEEPERS . The court has held the judges gatekeeping function applies to all expert testimony even  those that are non-scientific.

The Flint Divorce Judge makes the first decision. Is this proposed testimony relevent and reliable. The Flint Court witness expert must be reliable and the methods used  must be reliably applied to the facts at hand.  The theories the experts uses in a Flint Divorce Court must be  toied to the facts of the  case and bear a valid scientific coinnection to the focus or pertinante inquiry.

Most Flint Family Court Judges will find a reliable or valid scenetific nmethod, used by the expert, when the following questions are examined:
1. Whether the theory or technique can be and has been tested.
2.Whether the theory or technique has been subjected to peer review and publication.
3.The existence of known  or potential error rates.
4.The existence and maintenance of standards controlling the techniques operation.
5.The degree of which the theory or technique is generally acceptred in the scientific community.

The Flint Judges  focus then ius on the metjhodology and principals, not on the ultimate conclusions generated.

For an example of the use see.
9th Annual Family Law Institute
Contributed by James J. Harrington III  as follows unedited.
Use of an Alimony Prognosticator “Expert”?
  1. Whether there is any such thing as a “Prognosticator Expert”, chances are good that you will be faced with the tactical decision to either use an “Expert” to publish your Spousal Support projections to the Court, or will be faced with the challenge of deconstructing “expert” testimony submitted by the opposing party.

    A critical threshold question is whether or not “expert” testimony is either appropriate or necessary to submit your Spousal Support projections to the Court. The four (4) Court of Appeals decisions only deal with the “hearsay” issue in one case, and totally ignore “foundation” issues.
  2. An expert called to testify must be qualified under Daubert[16] and MRE 702. If you wish to attack an “expert” witness who will be called to testify regarding computer projections for Spousal Support, a mandatory predicate for admissibility of the testimony should be a threshold determination by the Trial Court, that the Daubert pre-requisites have been established.
  3. The bedrock foundation for the admission of Expert Testimony is contained within Michigan Rule of Evidence (MRE) 702 and (MRE 703):

    Rule 702 Testimony by Experts:
    “If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

    Rule 703 Bases of Opinion Testimony by Experts:
    “The facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence. This rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual bases of the opinion be admitted in evidence thereafter.”
    Some questions do arise:
    Logically, when Daubert is combined with MRE 702, are there actually any “experts” in Alimony projections?
  4. If, in fact, the testimony of the expert regarding the projections consists of “opinions” this would almost disqualify the testimony pursuant to Skripnik v Skripnik.

    Is there a “recognized body of scientific support for computer projections”??? A compelling argument can be made that there is no such recognized scientific specialty. On the other hand, no Michigan Court has ever dealt with these threshold foundation issues.

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