WOMENS HISTORY MONTH

have gained general acceptance in the particular field in which it belongs

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made

In 1975, the Federal Rules of Evidence were enacted into law. Rule 702, in its original form, stated:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

There was considerable debate among litigants, judges, and legal scholars as to whether the rule embraced the Frye standard or established a new standard Before the mid-1980s, the only significant limitation on expert testimony was that an expert witness needed to be qualified in his or her field, “beyond the ken of the jury” and helpful to the jury’s understanding of the case.

II. Daubert and Its Progeny

In Daubert v Merrell Dow Pharmaceuticals, Inc , the U S Supreme Court held that Rule 702 established reliability as a prerequisite for the admissibility of expert scientific testimony 6 However, the Daubert opinion contained conflicting language, which has caused confusion on whether the admissibility standard is strict or lenient

Specifically, the Court noted “the liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony” as well as emphasizing the “flexible” nature of the trial court’s inquiry into the expert’s opinions

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Former Ethics Rule 5.4 and ThirdParty Litigation Financing

MARIA G. MCKEE, ESQ., CARPENTER, HAZLEWOOD, DELGADO & BOLEN

With Arizona’s recent elimination of Arizona Ethics Rule 5 4, entities which provide legal services are permitted to organize alternative business structures Alternative business structures involve a business entity that includes both lawyers and non-lawyers who have an economic interest or decision-making authority in a firm that provides legal services One of the goals noted by Arizona’s Supreme Court when this change was made is to allow additional capital to be infused in legal firms.

While there has been mixed reactions to this change, most of the discussion has been focused on merging legal services with additional needs clients may have, such as accounting services, estate planning, and more. However, because Arizona is the first state to permit alternative business structures for law firms, this change has also captured the attention of third-party litigation financing (“TPLF”) companies.

TPLF typically involves a funder that is not a party to a lawsuit agreeing to provide funding to a litigant or law firm in exchange for an interest in the potential recovery in a lawsuit TPLF companies view this shift in the ethical rules as an opportunity to not only provide TPLF as a third-party, but to also take an ownership stake in law firms With some TPLF companies indicating an interest in this possibility in the Arizona market, it is unclear if law firms would be willing to agree to such a novel arrangement, especially with no insight as to how successful or realistic this arrangement could be. Such an arrangement would also raise interesting ethical questions in terms of the fiduciary relationship between client’s and their attorney’s if the TPLF side of a law firm has goals that differ from the client’s. Clearly, there are more answers than questions at this stage.

What does this mean for attorneys working in the defense realm? It is possible we may see an uptick in these arrangements for mid-size or boutique firms that focus on plaintiffs work, which could trickle down to firms that focus on defense work. We could see an increase in the amount of cases mid-size and boutique firms are able to file in the coming years, even if that increase is more gradual in nature as TPLF’s trickle into the market (or try to, anyway). We could also see firms that mainly practice defense considering this same funding mechanism if insurance is not willing to foot the bill.

Whether or not we will see an increase in these TPLF companies taking ownership stakes in Arizona-based law firms is still unclear, but the door of opportunity is open. Either way, it is an important consideration to keep in mind as the legal field continues to adapt to this novel shift in Arizona’s legal practice