Litigation Management

Book Review

Faigman, David; Kaye, David; Saks, Michael; and Sanders, Joseph. Modern Scientific Evidence: The Law and Science of Expert Testimony. St. Paul: West Publishing Co., 1997. Hardcover: 2 volumes, 674 pages. $245.

By past convention, admission to law school has heavily favored those graduates who focus in undergraduate humanities and social science majors, and have limited coursework in the quantitative analytical fields associated with math and the hard sciences. In the preface to Modern Scientific Evidence, the authors direct much of their criticism for this trend to an American educational system that practices early segregation of students into careers before a firm, wholistic foundation is achieved in complementary subject matter. Citing changes introduced by the Daubert Court as one example, Faigman, et al. have identified the emergence of a "third culture," beyond the literary and scientific cultures, associated with the practice of law. This culture is one that will integrate "a sophisticated understanding of science into legal decisionmaking."

West Publishing's Modern Scientific Evidence is directed to attorneys specializing in the area of medical litigation, who must increasingly grapple with the emerging nuances of "good" science and legal admissibility. It is not the authors' expectation that attorneys should strive to become scientists, but rather that legal practitioners become "sophisticated consumers of science." In the opinion of Faigman, et al., science has become a tool that the legal profession must wield to exercise justice.

To achieve the aforementioned, the presentation of the two volume Modern Scientific Evidence is divided into five sections-legal standards, introduction to science and the scientific method, social and behavioral sciences, forensic identification, and toxic substances. Extensive footnoting throughout augments the text by supplying both academic commentary and reference to supplemental or original sources. The glossary at the conclusion of volume 2 defines medical and scientific terminology found in the manuscript. The index and table of cited cases will assist the user in preparation of legal arguments.

Modern Scientific Evidence presents a detailed review of the admissibility of scientific evidence. The ascendance and decline of Frye is analyzed, followed by detailed consideration of the Federal rules of evidence and the validity test of Daubert. The publisher notes that following a reading of these chapters, an attorney will be prepared to explain complex science during admissibility arguments, as well as confidently challenge the testimony of opposing experts during trial. Likewise, knowledge of the principles expounded in the reviews of Daubert will enable the reader to focus selection and utilization of expert witnesses and scientific research data. Elsewhere in the published literature, opinions have been rendered regarding the question, "Is social science, Science?" when the evidentiary basis for some of the newer, "manufactured" psychological syndromes has been presented. This question has been controversial due to the difficulty in applying true scientific methodology to the testing of human subjects and the associated phenomena of the social sciences. Modern Scientific Evidence objectively analyzes the advocacy stances of this issue from both the pro and con perspectives.

To appropriately analyze published scientific research and expert testimony in medical litigation, the attorney must have some experience in statistical applications. Faigman, et al. review the complexities of statistical analysis in their three chapters on the logic of deriving inferences from empirical evidence, statistical proof, and multiple regression. These concepts are explained in a manner that is practical in the exercise of medical litigation.

The forensic identification portion of this book studies the science of identification of parentage, fingerprints, handwriting, bitemarks, talkers, firearms, arson and explosions. Also included is an in-depth review of the legal admissibility and scientific use of DNA profiling.

Chapters on toxicology, exposures, epidemiology, and risk assessment discuss the use of toxicological versus epidemiological evidence, and the admission of toxicological evidence to establish causation. Individual sections are devoted to specific topics that have played, and are currently playing, prominent roles in toxic litigation-tobacco, silicone breast implants, Bendectin, and electromagnetic radiation.

Corporate, insurance, and defense attorneys will want to consider the utility of adding this handsomely bound collection to their legal libraries. The publisher indicates that these volumes can be updated on an annual basis via cumulative supplements.

Reviewed by:	Elizabeth Juliano
	James R. Fell

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