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legal.online
February 2003

Daubert Tool Lets Lawyers Track Expert's History
By Robert J. Ambrogi
Expert testimony can be the linchpin that makes or breaks a case. But lawyers have had a tougher time getting that testimony admitted since 1993, when the Supreme Court decided in Daubert v. Merrell Dow Pharmaceuticals that scientific testimony must be not only relevant, but reliable. In 1999's Kumho Tire v. Carmichael, the court extended that rule to all experts.

This means that a lawyer preparing to qualify or challenge an expert at trial must answer a number of questions. What is the state of the case law under Daubert? How has the particular court or judge applied the rule? How have courts ruled on this type of expertise? Has this expert ever come before a judge?

But keeping up with the case law is no easy task. MDEX Online, a medical-legal consulting firm headquartered in Chicago, estimates there are more than 4,000 trial and appellate opinions interpreting and applying Daubert and its offspring.

That is why MDEX developed a tool to help lawyers track these cases and, in particular, find out how specific experts or areas of expertise fared in the courts. Called The Daubert Tracker, its central feature is a database of all reported Daubert and Kumho decisions, trial and appellate, backed up when available by full-text briefs, transcripts and docket entries.

The service, launched in August 2002, is composed of five distinct products:

• The searchable database of all reported cases.
• Core documents - docket sheets, briefs and transcripts - for each case.
• An e-mail update of new cases from the previous week.
• A quarterly journal with articles by trial attorneys, law professors, judges and experts.
• A series of "Web lectures" delivered by authorities on Daubert and scientific evidence.

A year subscription is $495 with discounts for multiple users. You can instead purchase a two-hour session for $25. The subscription includes the case law database, the e-mail update and the quarterly journal. Core documents and Web lectures cost extra. Briefs are $20 each for subscribers and $40 for others. Transcripts are $30 for subscribers and $60 for others. Documents and transcripts not in the database can be ordered for $35 to $60. Lectures are $47.50 to subscribers, $95 to others.

Conducting A Search
When you first log on, you arrive at the main page, where the search fields are set out in a box to the left. To the right, another box lists available Web lectures. In the center of the page is general product information.

You can search the database using any combination of the 10 available search fields. They allow you to search by expert's name, expert's discipline, specific federal or state court, area of law, party, judge, attorney, year and key word. You select the discipline, court and area of law from a drop-down list. You are permitted to select multiple disciplines.

Once you have entered a search, you come to a results screen with a list of the matching cases, showing for each the jurisdiction, court and case caption. Next to each listed item is a "View Case" button; clicking this takes you to the details of the case.

The main screen for each case has five tabs across the top: Case Details, Opinion, Docket, Briefs and Transcripts. Cases added to the database since January also have a sixth tab, Summary.

The screen opens by default at Case Details, and begins with the experts - not just the ones who matched the search, but all who were challenged in the case - showing name, discipline, area of expertise and disposition (e.g., testimony admitted). The Details screen also lists court, parties, docket number, citation, counsel, judge and area of law.

Here is a key area in which the The Daubert Tracker distinguishes itself from other case law databases, MDEX CEO Myles Levin said in an interview. Even if the case never mentions the expert's name or expertise, The Daubert Tracker provides it. "We track down the name of the expert even if it is not mentioned in the case," Levin said. "Also, we accurately assign a discipline. We don't take for granted the judge's characterization of the discipline."

From Case Details, you can click on any of the other tabs to reveal:

• Opinion. This is the full text.
• Docket. The case docket listing pleadings and other filings. Order any of them by checking the box next to the item.
• Briefs. Lists any briefs available for purchase. The site provides briefs for appellate cases only, and then only for cases where the brief was available from the court or other source.
• Transcripts. Lists any transcripts available for purchase. Levin describes the collection of transcripts as "in its infancy," but he is pursuing ways to add more.
• Summary. Only cases added since January include summaries.

If a brief, transcript or other document is available for purchase, the price is shown to the right of the item's description along with a check box to add the item to a "shopping cart." Once you have "checked out" by entering your credit card information, you go directly to a download page showing that item and any others you have purchased. You can download it immediately or anytime afterward.

Enhancements Ahead
MDEX is preparing several enhancements for The Daubert Tracker, Levin said. These include:

• Addition of recent cases applying Frye v. United States, the 1928 Supreme Court decision requiring the exclusion of scientific evidence that is unproven or experimental.
• Addition of seminal state cases, such as the 1976 California decision adopting Frye, People v. Kelly.

As of early February, Levin planned to make these additional cases available by the end of the month.

Other enhancements in the works:

• An improved search engine, with "fuzzy logic" that will find closely matching results as well as precise ones.
• Addition of unreported cases, including pretrial evidentiary hearings.
• An inexpensive name search for quickly checking a particular expert. This will be priced at under $10, Levin said.

A Useful Tool
The Daubert Tracker is not without its shortcomings. Among the most apparent:

• The inconsistent availability of briefs, transcripts and supporting documents. You never know until you click on the appropriate tab whether the brief or transcript is available.
• The initial results screen lists cases alphabetically, but does not show when they were decided. Adding dates here would be helpful. Even better would be the ability to sort results by date.
• Full-text cases have neither page nor paragraph numbers, so they cannot be cited without going to another source.
• Lack of a detailed help file. It makes up for this, however, with a thorough demo that serves as a tutorial as well.

Despite these shortcomings, The Daubert Tracker is a useful tool for trial lawyers. It is easy to use and understand, and provides precise information about expert witnesses not easily found elsewhere. At $25 for a two-hour session, a lawyer would be remiss not to check an expert through the Daubert Tracker.

Robert J. Ambrogi, a lawyer in Rockport, Mass., tracks new and intriguing Web sites for lawyers through his LawSites Web log. He is author of The Essential Guide to the Best (and Worst) Legal Sites on the Web, available through LawCatalog.com. E-mail him at rambrogi@legaline.com.