Archive for March, 2008

Buckley Brown to Chair Municipal Liability Seminar for State Bar of Georgia

On April 24, 2008, several Buckley Brown attorneys will join a distinguished panel of speakers for a one day seminar addressing issues related to Municipal and Governmental Liability claims.  Among the scheduled speakers are United State Magistrate Judge Alan J. Baverman, University of Georgia School of Law Professor Thomas A. Eaton, and Bryan A. Downs, City Attorney for the City of Decatur, Georgia.  The seminar—appropriate for attorneys as well as human resource and claim professionals serving federal, city, county, law enforcement and state governmental agencies—will address recent trends and issues in cases involving claims against governmental agencies and individuals serving the federal, state and local governments.  Registration, directions and other information is available at www.iclega.org/schedule.html.

Proposal Seeks to Modify and Clarify Rules Regarding Expert Testimony

The Georgia State Bar has recommended changes to the Georgia Evidence Code that will affect the introduction of expert testimony at trial.  This proposal comes in response to several concerns about the existing statute on the admissibility of expert testimony at § 24-9-67.1.

Prior to March 2005, Georgia’s law on the screening of scientific expert testimony was tangled and untidy.  Georgia then adopted § 24-9-67.1 to provide order to the law by applying the federal Daubert line of cases (codified in Federal Rule 702) to civil cases in Georgia, and applying Harper v. State, 249 Ga. 519 (1982) and Riley v. State, 278 Ga. 677 (2004) to criminal cases.  The State Bar believes, however, that the existing statute violates Federal Rule of Evidence 703 and has other deficiencies.

In response, the State Bar’s proposed new rule (24-7-702(b)) provides a single standard for both civil and criminal cases.  Reinstating the Harper standards, a party would be able to challenge expert testimony based on scientific theories or techniques that have not “reached a scientific stage of verifiable certainty.”  Further, the proposed rule requires an expert’s testimony to be “based on sufficient facts or data,” and “the product of reliable principles and methods,” and the witness must have “applied the principles and methods reliably to the facts of the case.” § 24-7-702 (b).  As Georgia has an interest in not allowing evidence that would not be admissible in other states, the comments to the proposed rule note that a court should not look to federal cases to compare Georgia’s evidentiary standards, especially considering that Daubert is not the law in most states.

Another change in proposed Rule 24-7-702 is to set a 14 day time frame after the close of discovery for bringing motions to exclude expert testimony to allow sufficient time to find a new expert, if needed.  However, “[b]ecause the rules of discovery are different in criminal cases and there often is very little time between notice that an expert will testify and the trial date,” the comments provide, “no time limit is recommended for bringing a [motion to exclude expert testimony] in criminal cases.”

Finally, the proposed rule establishes a new standard for the trial judge to use in excluding expert testimony.  Specifically, rather than using his or her own judgment as to whether the expert’s testimony satisfies the requirements of section (b) of the proposed rule, the judge will decide the motion on whether a reasonable jury could decide so.

Text of the proposed changes and the comments are available on pages 76-80 of the Report of the Evidence Study Committee of the State Bar of Georgia, available at

http://gabar.org/public/pdf/news/proposed_new_evidence_rules.pdf

While the proposed changes have not been introduced to the state legislature, the acceptance by the State Bar signals that the proposition could soon move in that direction.  As many unanswered questions remain, and will continue to arise throughout the legislative rulemaking process, we will continue to update any new developments concerning these proposed new rules of evidence.

 

For more information, please contact Tim Buckley at (404) 633-9230.


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