Andrew Jurs | University of the Pacific (original) (raw)

Papers by Andrew Jurs

Pepperdine Law Revew, 2024

h the rapidly expanding sophistication of artificial intelligence systems, their reliability, and... more h the rapidly expanding sophistication of artificial intelligence systems, their reliability, and cost-effectiveness for solving problems, the current trend of admitting testimony based on artificially intelligent (AI) systems is only likely to grow. In that context, it is imperative for us to ask what rules of evidence judges today should use relating to such evidence. To answer that question, we provide an in-depth review of expert systems, machine learning systems, and neural networks. Based on that analysis, we contend that evidence from only certain types of AI systems meet the requirements for admissibility, while other systems do not. The break in admissible/inadmissible AI evidence is a function of the opaqueness of the underlying computational methodology of the AI system and the court’s ability to assess that methodology. The admission of AI evidence also requires us to navigate pitfalls including the difficulty of explaining AI systems’ methodology and issues as to the right to confront witnesses. Based on our analysis, we offer several policy proposals that would address weaknesses or lack of clarity in the current system. First, in light of the long-standing concern that jurors would allow expertise to overcome their own assessment of the evidence and blindly agree with the “infallible” result of advanced-computing AI, we propose that jury instruction commissions, judicial panels, circuits, or other parties who draft instructions consider adopting a cautionary instruction for AI-based evidence. Such an instruction should remind jurors that the AI-based evidence is solely one part of the analysis, the opinions so generated are only as good as the underlying analytical methodology, and ultimately, the decision to accept or reject the evidence, in whole or in part, should remain with the jury alone. Second, as we have concluded that the admission of AI-based evidence depends largely on the computational methodology underlying the analysis, we propose for AI evidence to be admissible, the underlying methodology must be transparent because the judicial assessment of AI technology relies on the ability to understand how it functions.

New Mexico Law Review, 2024

Consistency and rationality are central to the legitimacy of the modern court system. Considerabl... more Consistency and rationality are central to the legitimacy of the modern court system. Considerable recent attention has been focused on the Court’s overturning of established precedent on abortion in Dobbs v. Jackson Women’s Health Organization. Yet, as we empirically demonstrate, the courts, through the decisions of individual judges over thirty years, have reversed the meaning of the Daubert standard for admission of scientific evidence, thereby threatening the legitimacy of the very heart of the civil justice system. In the initial years after the Daubert decision, litigants saw its reliability standard as a stricter standard than the previously used Frye “general acceptance” standard. But after only a short time, application of the standard became unclear. It was neither more nor less strict. Current perception of the Daubert standard has completely reversed, as our analysis shows it is now seen as a weaker standard than the Frye standard. Courts must make up to half a million Daubert decisions each year in tort cases. To have application of a standard so prevalent in civil litigation reverse its effect in thirty years, without a decision or direct change, risks great harm to the legitimacy of the civil justice system. We contend that the problem arises because the Daubert standard’s factors are misunderstood by judges, too interrelated, and too complex. To resolve the problem, we propose that the Courts replace the multiple Daubert factors with a single factor—testability—and that once the evidence meets this standard the judge should provide the jury with a proposed jury instruction to guide their analysis of the fact question addressed by the expert evidence.

St. John's Law Review, 2020

This book review examines Law Mart and its detailed explanation of the reaction of for-profit leg... more This book review examines Law Mart and its detailed explanation of the reaction of for-profit legal education to the “law school crisis” of 2012-16. The author Tejani worked at Arizona Summit Law School, one of three schools owned and operated by Infilaw Corporation on a for-profit basis, and he documents the way management disregarded faculty governance and rammed through curricular reform to forestall collapse of the school during and after the law school crisis.

While his lessons may be based on his experiences in for-profit legal education, they apply more broadly to all of legal academia particularly in the current era of innovation and reform. By examining the Arizona Summit situation, Tejani makes clear that the ABA failed in their mission of oversight in the earlier era of for-profit innovation in education, and it is just as clear today that their regulatory approach must change or they risk making the same mistakes with the same disastrous consequences in our new era of innovation.

Ohio State Law Journal, 2018

Our research demonstrates that when the federal system adopted the stricter standard of Daubert i... more Our research demonstrates that when the federal system adopted the stricter standard of Daubert in 1993, there was a disproportionate and negative impact on filings from African-American plaintiffs along with a corresponding rise in filings from white plaintiffs. This research shows that, in response to Daubert, black plaintiffs were less likely to file in federal court, and once they were pushed out of the civil justice system, they remained out.

Indiana Law Journal, 2016

The importance of expert witnesses to modern litigation is clear, but the lack of reliable data a... more The importance of expert witnesses to modern litigation is clear, but the lack of reliable data about experts and their effectiveness in court is remarkable. Several studies have touched on the issue in recent decades, but the most comprehensive research in the area is based upon survey responses collected in 1988 and 1991.

To fill the gap, this study offers a two-step analysis of experts in actual civil jury trials. First, judicial records of trials revealed both the percentage of cases with experts and the number of experts per case. Second, surveys of the trial participants – judges, attorneys, experts and jurors – revealed factors that make an expert persuasive as well as some surprise responses debunking conventional wisdom surrounding experts.

By empirically measuring the role of experts in actual litigation, we can establish what makes them effective, when different litigants disagree about experts and why, and how the handling of experts has changed over time.

Stanford Journal of Complex Litigation, Apr 2015

Proponents of tort reform have suggested it is a necessary response to rising personal injury lit... more Proponents of tort reform have suggested it is a necessary response to rising personal injury litigation and skyrocketing insurance premiums. Yet the research into the issue has mixed results, and the necessity of tort reform has remained unproven.

We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.

We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.

Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.

We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.

Court Review, 2015

concurring). 3. One major reason to believe courtroom standards may have changed since these prio... more concurring). 3. One major reason to believe courtroom standards may have changed since these prior studies is that many states, evaluating their state evidentiary standards, switched from Frye to Daubert in the mid to late 1990s. So during the data-collection periods of several of the prior studies, some states adhered to Frye but have changed to Daubert since. For more on this issue, see infra Part II.d and text accompanying notes 22-25.

Penn State Law Review, 2014

Tort reform legislation developed as a response to a series of insurance crises and reactions tha... more Tort reform legislation developed as a response to a series of insurance crises and reactions that blamed the personal injury compensation system for those problems. Since measures of tort reform have been adopted, many researchers have analyzed their effects within and beyond the legal system, assessing how they affect damages, insurance claims, health costs, and physician supply.

Our study analyzes an underdeveloped area of research: the effect of tort reform on the filing of cases in court. Using two databases of state court filing data over 12 years, we examine how a damages cap for medical negligence claims affects case filings in the years immediately after its adoption. With several test states, we find that when a state adopts med mal damages caps, there is a statistically significant drop of 23 percent in med mal filings. We confirm this effect by also measuring the effect of a cap’s nullification, and find that in the aftermath of a cap’s removal case filings increase by 29 percent. Our work can therefore confirm and quantify the effect of damages caps on case filing.

Yet these findings become more significant when we consider them along with a new and interesting study from the Journal of Empirical Legal Studies. In their 2013 study, Myungho Paik, Bernard Black, and David Hyman found that filings of med mal torts have decreased in the last decade, not only in tort reform states but also in states without it! If so, our finding of a statistically significant drop in med mal filings in response to tort reform has a “doubling-down” effect: there is one reduction in filings due to tort reform, and also a background reduction in filings based on larger, non-statutory changes.

We believe that our findings regarding the effect of tort reform on med mal filings and the “doubling-down” effect significantly modify the cost-benefit analysis of tort reform. The positive impacts of tort reform have been significantly oversold, and the effects of tort reform disproportionately impact certain vulnerable citizens. If so, we believe that claimants are being doubly squeezed without significant public benefit. We therefore suggest that state legislators reconsider these efforts, or risk court intervention due to equal protection challenges.

Mississippi Law Journal, 2014

Daubert and its progeny may have given judges clear substantive standards for deciding challenges... more Daubert and its progeny may have given judges clear substantive standards for deciding challenges to expert reliability, and great discretion to do so, but the effect of those changes has not been entirely clear. In the decade after Daubert, a few studies used empirical data to analyze the changes Daubert had made, in deciding how and why judges decide the way they do. But since those studies, there has been little analysis of the issue.

This survey is intended to fill the gap, by exploring how judges actually make their reliability determinations in court. By asking state trial court judges, we can see the frequency with which such motions arise, what substantive factors are most helpful in deciding the motion, and what procedures get used. We can also measure whether, considering the state of the law, judges are comfortable with their role in deciding expert reliability, or in limiting expert testimony due to a reliability challenge.

In addition to that data, this survey will also begin to empirically test an issue raised by many commentators: whether gatekeeping for expert reliability has become a type of sufficiency-of-the-evidence challenge akin to summary judgment. Asking judges questions about both motions, together, helps begin to explore that relationship on an empirical level.

By measuring the actual practices of state court judges, this survey provides actual data on Daubert gatekeeping, the tools used and not used by the judiciary to that end, and the connection of reliability analyses to summary judgment.

Arkansas Law Review, 2013

The substantive standard for gatekeeping expert evidence is an issue that has an enormous impact ... more The substantive standard for gatekeeping expert evidence is an issue that has an enormous impact on the judicial system, affecting tens of thousands of federal cases and many times that in state court each year and dramatically modifying substantive tort law. Yet while the issue is critical, researchers have often struggled to find a way to quantify the change in the substantive standard for gatekeeping under Daubert.

In a recent study, we decided the best way to measure the effect of Daubert would be to assess the aggregate case management decisions of litigants in millions of actual cases. Our prior study used the metric of removal rates to determine whether civil defendants acted in a way demonstrating that Daubert changed the standard. The removal data showed that Daubert acts as a stricter gatekeeping standard.

This Study asks an equally important question: when we measure the case management decisions of civil plaintiffs, how did Daubert change the substantive gatekeeping standard? To answer that question, we again reviewed a database of millions of real cases. In so doing, we found an identical result: Daubert is the stricter standard.

By measuring the behavior of civil litigants in actual cases, we believe our analysis shows whether Daubert is a stricter gatekeeping standard, and finds that it is. If so, we can conclude the theoretical underpinnings of Daubert are unmoored from reality, meriting Supreme Court evaluation of the issue by accepting certiorari on a case revisiting expert admissibility.

Catholic University Law Review, 2013

While Daubert was clear in its rejection of Frye and the substantive standard for expert admissib... more While Daubert was clear in its rejection of Frye and the substantive standard for expert admissibility, its effect on litigants has been hotly debated. Several studies since 1993 used quantitative analysis through case study analysis and judicial surveys, to measure Daubert’s effect. Yet these methodologies have reached contradictory results. In 2005, Edward Cheng and Albert Yoon offered a revolutionary new approach in their work Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards. They proposed that studying removal of cases from State Court to Federal Court in the period 1990 to 2000 could quantitatively demonstrate Daubert’s true effect. It works because a litigant could, by removing a case to federal court, switch scientific admissibility standards in some circumstances. The aggregate change in behavior of all litigants can therefore be measured.

We agree that removal rate offers the best hope for assessing the true effect of Daubert, and so in this study we offer our analysis of removal rates using econometric tools never before applied in this area. Our analysis reveals a startling discovery: Daubert is the stricter standard for expert admissibility. Not only does a change removal rate after Daubert clearly demonstrate this result, but it is confirmed through a “shift back” to state courts when the state also adopts Daubert and removal no longer entails a change in standards. Our results directly contrast with Cheng & Yoon’s conclusions, and so we also revisit their study and deconstruct its methodology piece-by-piece. In so doing, we will describe several errors in that study both explaining the different results but also ultimately undermining its validity.

Ultimately, our research into aggregate case data from real cases demonstrates a new and conclusive finding: Daubert has been the stricter standard.

University of Pittsburgh Law Review, 2012

While the Daubert case and its progeny provided detailed guidance to judges on the substantive st... more While the Daubert case and its progeny provided detailed guidance to judges on the substantive standard for expert gatekeeping, the court spent little time explaining the procedures to use to achieve that gatekeeping review. Justice Breyer’s concurrence in Joiner offered some suggestions on what procedures to use. Since Daubert in 1993, only a few studies have explored the methods judges actually use to perform their gatekeeping task. While they consistently find that judges see their role as more active since Daubert, they are less than complete on procedures of advanced factfinding. They also rely on surveys over a decade old.

This Study offers new data to expand upon and update prior research in the area. Relying on survey responses of state court judges in the Midwestern United States, this Study explores how judges use advanced factfinding tools of the Rules of Evidence in their courtrooms. Some results are consistent with prior studies, particularly the responses on frequency of use of judicial questioning from the bench and appointment of independent experts. Yet by exploring the judicial responses across a variety of characteristics, some new and interesting results arise. Finally, the study provides the only post-Daubert data on the reasons why judges are reluctant to appoint independent experts under Rule 706. Those data contrast with prior studies in the area.

By measuring the actual practices of state court judges, this Study explores the methods Justice Breyer suggested judges use in their Daubert gatekeeping, what tools are used and not used by the judiciary, and whether the aspirational goals of the Rules of Evidence match reality in courtrooms today.

Marquette Law Review, 2012

In a recent article on science and the law, Susan Haack suggested that “we could learn something ... more In a recent article on science and the law, Susan Haack suggested that “we could learn something from the experiences of other nations that are equally technologically advanced, but have different…legal arrangements.” Her suggestion is both appropriate and timely, as the evidence mounts on the problems with the current judicial management of complex science.

This Article starts with a simple related premise, that the proper balance of legal process and scientific expertise is not a uniquely American problem. If this is true, then we should, as Haack suggests, seek inspiration for reform in the varying methodologies of other nations. After beginning with a critical examination of the U.S. system, this Article discusses the handling of expert witnesses in several common law nations, Canada and the U.K., and in several civil law nations, Germany and Japan. After examining those systems, this Article makes recommendations as to which methodologies, currently in use and tested in those nations, offer the most promise in fixing the weaknesses exposed in our system.

By reviewing the weaknesses in Daubert assessment of complex expert testimony, how other nations handle similar evidence, and how certain discrete areas of foreign law could address the weaknesses identified in the U.S. approach, this Article offers reform alternatives to assist judges in balancing the need for accuracy and reliability of the science presented in court with the need to maintain our traditions of legal process.

Virginia Journal of Law & Technology, 2010

The improper bending of scientific opinion by outside influences has been a concern of scholars a... more The improper bending of scientific opinion by outside influences has been a concern of scholars and commentators for decades. The interference of outside influences with scientific analysis pushed Arthur Kantrowitz in 1967 to propose a procedure for making scientific assessment by non-scientists more objective. The perception of increasing partisan influence in the mid-1970’s led to a vigorous public debate of the Kantrowitz proposal. A critical question of that debate is equally important for the current judicial system: how long will we tolerate the partisan exploitation of scientific uncertainty?

This Article reviews Kantrowitz’s proposal, analyzes its criticisms, and discusses how it ultimately failed to change scientific evaluation methodology. After assessing legal changes that have occurred since Kantrowitz’s proposal, this Article proposes Congress should create a centralized Court of Scientific Jurisdiction to handle complex science and technology cases.

Ultimately, this Article shows that by incorporating expertise into the judiciary, the Court of Scientific Jurisdiction could objectively assess scientific and technological evidence, resulting in more reliable, predictable, and scientifically valid outcomes, without sacrificing due process and fairness.

Connecticut Law Review, 2009

Since Daubert, courts have faced difficulty with screening cutting-edge scientific evidence for r... more Since Daubert, courts have faced difficulty with screening cutting-edge scientific evidence for relevance and reliability under Federal Rule of Evidence 702. In a series of cases following Daubert, courts faced the challenge of particularly complex epidemiologic studies. In addition to inconsistently handling the epidemiologic evidence in their Daubert reviews, the judicial analysis of this science exposed other weaknesses of the Daubert system.

Weaknesses of the Daubert regime include: weak judicial training in scientific principles and statistical information, oversimplification with bright line tests, outlier enhancement of experts outside the mainstream of their field, and the incompatibility of the judicial procedure with science. Each identified issue presents a reason why a judge may inconsistently or inaccurately evaluate difficult scientific principles.

To address these identified weaknesses, this article seeks modifications to the current system. One way to bring more science back into the courthouse, or to the judge’s chambers, is to permit the appointment of a science consultant under a modified Federal Rule of Evidence 706. For an even smaller subset of more complicated cases, advanced science procedures are needed. A science panel approach, using a modified arbitration panel format, or a centralized court of scientific jurisdiction would offer significant advantages to the current Daubert system. Other discrete individual reforms solve other weaknesses in current Daubert analysis.

By critically examining the breakdown of Daubert in the face of epidemiologic risk evidence, evaluating the nature of the weaknesses in the system, and creating reforms structured to respond to those concerns, we can modify the current Daubert system to allow judges to more consistently, accurately and efficiently handle the most complex, cutting-edge science presented in litigation.

University of Memphis Law Review, 2008

In 1983, the U.S. Supreme Court decision in Briscoe v. LaHue provided a comprehensive analysis of... more In 1983, the U.S. Supreme Court decision in Briscoe v. LaHue provided a comprehensive analysis of the rationale and bases for witness immunity. Since that decision, courts have wrestled with the extent of immunity for adverse, court-appointed, or “friendly” expert witnesses.

Following Briscoe, the Washington Supreme Court in 1989 first addressed friendly expert immunity in Bruce v. Byrne-Stevens. In the Bruce decision, the court granted an expert immunity to suit by his former client who had hired the expert for litigation support. While six states have addresses friendly expert immunity since Bruce, all refuse to grant immunity to friendly experts.

For several reasons, courts should adopt the Bruce approach and grant immunity from suit for friendly experts. First, the claimant had control over the expert selection, retention, and extent of review. Second, liability inappropriately results in expert self-censorship, either by not agreeing to serve as an expert or by shading of testimony. Third, immunity better serves the judicial interest in finality of dispute resolution. Finally, the reasons for denying immunity in the post-Bruce case law fail to persuade after critical scrutiny.

Courts should reject the post-Bruce expert liability exposure, and grant immunity to experts against suits from their former clients.

Journal of Legal Medicine, 2007

Federal Rule of Civil Procedure 26(a)(2) provides a dichotomy between experts requiring standard ... more Federal Rule of Civil Procedure 26(a)(2) provides a dichotomy between experts requiring standard disclosures and those with heightened disclosure requirements. The rule requires heightened disclosure for experts retained or specially employed or whose duties regularly involve testimony.

Recent federal court decisions now interpret Rule 26(a)(2) on a substance-based approach, requiring heightened disclosure for those experts who will testify beyond their treatment of the patient on new information or on the standard of care. The result of these interpretations is to require heightened disclosures for physician-defendants in medical negligence litigation, since all defendants will gain knowledge beyond their treatment of the patient and will testify on the standard of care.

The substance-based approach should fail. First, it departs from the Rules’ plain language. Second, it relies on questionable precedent. Third, a physician-defendant gains knowledge due to the special circumstance of being a named party, and should not be mandated to have heightened disclosures because of this. Finally, the rationale in case law for the substance-based approach fails to persuade.

The courts should return to the status based approach for Rule 26(a)(2) disclosure requirements, and reject judicial rulemaking interpreting Rule 26 and mandating heightened disclosure requirements for physician-defendants in negligence cases.