Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to associate dean of faculty development and law professor Tamara Piety of the University of Tulsa in Tulsa, Oklahoma. She teaches courses in Corporate Law, Civil Procedure, Evidence, and Scientific Evidence. Dean Piety also knows a thing or two about corporate speech. Her new book, Brandishing The First Amendment, argues that commercial interests should not have free speech rights. It will be published this fall by the University of Michigan Press. The interview is as follows:
1. You’ve written and taught a great deal about commercial speech (including a book to be published on the subject later this year). Although this is primarily a constitutional topic, what aspect of this issue do you believe that civil litigators should be aware of in their daily practice of representing corporate defendants?
In Brandishing the First Amendment, which is forthcoming from the University of Michigan Press, I discuss the rise of an aggressive use of the First Amendment to fend of regulation of various sorts, as well as its use as a defense to fraud claims like that in Kasky v. Nike. Obviously, in the wake of Citizens United and perhaps more significantly still for business, Sorrell v. IMS, commercial and corporate speech and the First Amendment will continue to be a hot topic at the level of strategic corporate policy. Raising the First Amendment has become a sort of portmanteau, all purpose, weapon against regulation. That said, I am not sure there is much that will touch civil litigators in their daily practice of representing corporate defendants. Although presumably there will be cases in which a First Amendment defense could be raised to some sort of mislabeling or false advertising claim, the ordinary product liability case will probably not be affected.
2. You teach a course called “Scientific Evidence.” What is the most significant evidence opinion to come out in the last year? Why is it significant?
The most significant case to come out of the Supreme Court last year for purposes of my scientific evidence course (which will be renamed “Expert Evidence” for Spring 2012) is the Bullcoming v. New Mexico case involving the application of the Confrontation Clause to the admission of lab reports. A lab technician will no longer be able to testify to the results of an analysis from a report where he or she did not actually observe the test. Many believe this is likely to have very significant consequences for prosecutors and forensic testimony involving DNA, drug residue and other chemical analysis and similar lab tests or expert assessments. However, this case won’t have much significance for civil practitioners since the Confrontation Clause is only of interest in criminal cases.
3. Some states, including South Carolina, have not adopted the federal Daubert standard. What challenges, if any, do such states face in light of their decision not to follow the federal approach?
I think there are always challenges when it seems that you are failing to follow “industry standard.” And to the extent many view Daubert that way I suppose those states (or their legislators) which have not adopted the Daubert test may face some pressure to adopt the federal standard. But it is not universally popular. And so I think that pressure is misplaced. Daubert is no magic bullet for determining how to sort good expert evidence from bad. As Ramirez v. State from Florida illustrated a few years back, it is possible for a court which is supposedly following a Frye standard to apply the Daubert standard in everything but name. So what standard nominally controls isn’t as important as it may seem at first blush. In Ramirez, the Florida Supreme Court reversed for (I think for maybe the 4th time) a conviction involving expert testimony from a tool marks expert that linked marks in a homicide victim’s body to a particular serrated knife found in the defendant’s possession. The witness claimed his method led to a 100 percent level of confidence in the identification and that he could identify the defendant’s knife to the exclusion of all other such knives in the world. This claim was probably not well founded from a scientific standpoint and he may have fared better if he had simply said he was “very sure” or “reasonably certain” or words to that effect instead of reaching for an improbably high number. The Florida Supreme Court essentially used a Daubert type analysis to hold that this sort of claim was scientifically suspect and thus ought to be have been excluded as unfairly prejudicial. The decision in this case illustrates why you need to be familiar with the basic framework of Daubert even if your jurisdiction uses a different test. Judges may want the questions the Daubert Court asked– was the finding published in a peer reviewed journal? Is there a known error rate?, etc. – to be answered regardless of the phrasing of the local rule. So I am inclined to think that decisions like Ramirez illustrate that it doesn’t matter so much which standard a state adopts. If the court you are facing is inclined to find the evidence you want to submit unusual and bizarre versus conventional and routine it will probably exclude it because a court can usually find a means of doing so. The doctrinal test has more influence on the form the argument takes than the substantive outcome. That is why I don’t think Daubert necessarily represents the best test or the “industry standard” with respect to expert testimony. I’m not sure there is a good way of solving this problem since the problem arises because lawyers are trained in every field that they need to evaluate and there is no way that they could be. It is a problem that defies a completely satisfactory solution. South Carolina’s may be as good as the federal approach.
4. What do you think is the most misunderstood issue in the scientific evidence arena? Why is it misunderstood?
This is a tough question because there is so much that is misunderstood! I guess if I had to pick one thing it is the feeling that there is a really clear division between “science” and other kinds of expertise. And this goes back to my answer to the last question. Lawyers are scientists but scientists also aren’t infallible and the line between “science” and other types of knowledge is not always clear-cut. There are a variety of ways to try to “prove” something. Some are more reliable than others. For example randomized, double blind trials produce more reliable results for the types of studies for which they are appropriate than many other types of research. But this sort of test is not available or appropriate for every question. Furthermore, probabilities and regression analysis tell you a great deal and will help clinicians make diagnoses, ones we want, for example, our doctors to rely on in many cases. However they cannot say for certain that any one instance of a particular substance caused a particular condition. Yet the courts often seem to require that degree of precision from experts. If they don’t get it they will exclude the testimony. I think that is a mistake, particularly since we routinely and unquestioningly admit testimony that has lower levels of reliability than many regression analyses (and a lot lower than we imagine!), such as eye witness testimony. I think we ask scientific evidence to do more than it can in some circumstances when much of what we want to prove in a court of law–the facts about the occurrence or non-occurrence of some acts, or a particular state of mind– are often probably out of the reach of not just the legal system, but of human capacity. I think maybe we seek this sort of certainty from the legal system because too much uncertainty is paralyzing. So having a basis for making a decision, even if it is not always accurate, is sometimes preferred to saying “I don’t know” or “we can’t decide.” There isn’t much room for compromise verdicts in courts of law, even though jurors try to enter them all the time. I think this impossibility of knowing all the facts is one of the attractions of strict liability – it allocates fault without having to delve into one of the most difficult areas to prove – intent. Yet, of course, if you are the defendant who feels wrongly burdened because you feel like you were doing the right thing and taking all reasonable precautions, it is probably not satisfactory to say to that defendant, “Well, society is better off if we don’t try to figure out your state of mind so be comforted that you are contributing to social stability.” You want the system to be fair to you. Everybody does. Yet that is an elusive goal. And in many cases it may be an open question which system – fault-based or strict liability –is better for society as a whole. Neither approach is going to be satisfactory in every case.
5. Why do you believe there was a popular misunderstanding of the facts of the Stella Liebeck McDonald’s hot coffee case? In a comment to one of our earlier blog pieces, you noted that McDonald’s “escaped appropriate censure because of the campaign to lampoon the case.” What censure do you believe McDonald’s should have received, and why?
On the first part of your question, I think the opening interviews with people on the street in the movie Hot Coffee, as well as some of the materials on the web suggesting that the McDonald’s case was a paradigmatic “frivolous” lawsuit, combined with the reaction the film makers got when they told people the facts of the case, combine to suggest that; (a) most people, when they know the facts, don’t think it was a frivolous case and (b) that the perception that it was frivolous was nevertheless widespread. To me that indicates there was a popular misunderstanding. The movie reflects that McDonald’s employees and management were aware that the holding temperature wasn’t fit for human consumption and that there had been a number of incidents in which people had been injured. When you combine these facts with a refusal to pay Ms. Liebeck what appeared to be a relatively modest initial request, McDonald’s actions seems worthy of censure. In terms of what censure it deserves, I guess the movie itself constitutes the deserved criticism I had in mind, particularly if it is widely viewed. On a side note, the movie illustrates that sometimes it is better to advise the client to settle even a case the company thinks it can or should win rather than face this sort of bad publicity. Of course, it is also the right thing to do if you are at fault. Another aside, it is unfortunate that sometimes the consequences of appropriate apologies overwhelm the ordinary human instinct to apologize in appropriate circumstances and sometimes discourage settlements. On the other hand, the problem I referred to in your earlier questions about scientific evidence and our ability to figure out what the facts are, make it difficult for management to sort out the deserving from the undeserving plaintiffs. And I think defendants are often fearful of the specter of an endless parade of plaintiffs, or of setting themselves up as a deep pocket. All I can say to that is that defendants (and their attorneys) just have to do the best they can in trying to sort those cases out. Attorneys (as you undoubtedly know) need to look at these cases from the perspective of plaintiffs and of prospective jurors and be able to anticipate how those jurors, or the public, will view these facts and advise their clients accordingly. And clients need to understand that attorneys who advice them that way are doing their job and trying to prevent disasters down the road by offering reliable advice about how to sort out the cases that ought to be settled from those that ought to be contested, not just refusing to take their “side.” Clients should not want a “yes man” who is afraid to tell them which strategies will likely work and which won’t. I don’t know if McDonald’s got good advice in the Liebeck case, but it did it appears that it didn’t or it wasn’t followed. Of course, my observation on that point may be simply a result of hindsight bias – everything looks more obvious in retrospect!
BONUS QUESTION: What do you think is the best depiction in popular culture of corporate speech or scientific evidence issues?
On evidence generally it is (no kidding) My Cousin Vinny, although that now qualifies as an “old movie” and maybe not part of “popular” culture any more. A more recent one that touches on the difficulties of proving something is Doubt with Meryl Streep and Phillip Seymour Hoffman. On corporate speech, I think the best is a documentary called The Corporation. But I haven’t seen everything that is out there, so there may be better examples. I would be interested in hearing from others what they think are the best examples.
BIOGRAPHY: Tamara Piety is the Associate Dean for Faculty Development and Associate Professor of Law at the University of Tulsa College of Law. She is a nationally recognized legal scholar writing about the legal treatment of commercial and corporate speech. Dean Piety’s book, Brandishing the First Amendment, is forthcoming this fall from University of Michigan Press. Dean Piety is an experienced former litigator who practiced law in South Florida for several years focusing on complex commercial fraud and criminal defense. She teaches a range of litigation-related subjects including, Evidence, Scientific Evidence and Law and Mind Sciences. Piety earned her bachelor’s degree in economics from Florida International University in 1985; her J.D., magna cum laude, from the University of Miami School of Law in 1991 where she was an Article and Comments Editor for the University of Miami Law Review and Order of the Coif; and her LL.M. from Harvard Law School in 2000 where she was the Executive Editor of the Harvard Women’s Law Journal. She served as judicial clerk for the Honorable Peter T. Fay on the United States Court of Appeals for the Eleventh Circuit and as an interim clerk for the Honorable Irving L. Goldberg on the United States Court of Appeals for the Fifth Circuit.