Unpublished court decisions, expert witnesses, and the future of Daubert

As many already know, the Supreme Court has approved amendments to the Federal Rules of Appellate Procedure that will permit citation of unpublished opinions beginning in 2007. (also see law.com)

According to Blog 702, while there may be fields of legal practice where the change will make little difference there will be areas of expert evidence, where the changes will be noticeable. Economic and related evidence is an area that is esp. likely to be effected.

Blog 702 states that about 40% of all federal appellate opinions addressing the admissibility of expert evidence are currently unpublished. Blog 702 authors believe that after the rules change, there will be a substantial expansion of the body of decisions to search for precedents involving the same expert, or the same field of expertise, or the same issue, or even similar fact patterns.

As the body of (published and unpublished) citable decisions expands, so too does the likelihood of finding decisions on point. All else equal, it would seem, the more guidance on how the court views a given field of expertise the better the situation for experts and attorneys.