Blinded by Science? Judge Critiques Legal Profession's Knowledge of Science, Tech

, Texas Lawyer

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Trial lawyers and judges are frequently ill-prepared to handle cases involving science and technology, warns Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in Jackson v. Pollion (2013). Despite the merits of Posner's critique and the fodder it gives opponents of the civil jury system, Texas judges and trial lawyers, as a rule, are quite comfortable with such issues.

The civil jury trial already plays a diminished role in dispute resolution, and many question its value. Posner's critique emboldens such critics who seek to further restrict the role of civil jury trials.

Solving the problem identified in his critique means ensuring that scientifically unreliable expert testimony does not reach the jury. Texas trial lawyers and judges are leaders in slamming the gate on junk science. They should not relent.

Let's look at the case in which Posner made his remarks. Posner points out that, if lawyers and judges were better informed about science, the court could have resolved Maurice Jackson's lawsuit much earlier.It was a paper-thin 42 U.S.C. §1983 lawsuit founded on the notion that Jackson developed hypertension during his stay in an Illinois prison because he was denied his hypertension medication for a few days.

Jackson's lawsuit churned through the courts for more than four years. A U.S. magistrate judge ultimately granted a defense motion for summary judgment, finding Jackson could not support his allegation that defendants were deliberately indifferent to his hypertension. On review, the federal district judge agreed. Jackson appealed to the Seventh Circuit, which affirmed in an opinion written by Posner.

A single paragraph by Posner dashedJackson's effort to reverse the summary judgment. Posner then launched his critique. He was troubled "that both the district judge, and the magistrate judge whose recommendation to grant summary judgment the district judge accepted, believed that Jackson 'can present evidence permitting a reasonable inference' that he had experienced a serious medical condition as a consequence of the interruption of his medication."

Posner continued, "This is mistaken, and (not surprisingly) has no support in the record. But it is not only repeated in the plaintiff's brief in this court, as one would expect; it is largely ignored by the defendants."

Posner broadened his critique, calling this lapse "indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue."

He supported this critique with a medley of quotations intended to capture the chasm between law and science. Acknowledging that this divide is not new, Posner warned that it now merits heightened concern, "because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation."

Failure to embrace science meant Jackson lingered needlessly for years. "A stronger judicial hand on the tiller could have saved a good deal of time, effort, and paper," concluded Posner.

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