Legal Education

Raising the Bar: Rule 702 Changes Illuminate the Need for Science Literacy in the Judiciary

David Lee, MJLST Staffer

On December 1, 2023, amendments to Federal Rule of Evidence 702 (FRE 702) took effect.[1] FRE 702 governs the admissibility of expert witness testimony. Central to its purpose is ensuring that such testimony is both relevant to the case and based on a reliable foundation. The rule sets the qualifications for experts based on their knowledge, skill, experience, training, or education, and emphasizes the crucial role of the trial judge as a gatekeeper. This role involves assessing the testimony’s adherence to relevance and reliability before it reaches the jury, thereby upholding the fairness and integrity of the judicial process and ensuring that the legal system remains aligned with evolving scientific and technical knowledge.[2]

Prior to the amendments, there was inconsistent application of FRE 702.[3] According to the Advisory Committee on Evidence Rules, the changes serve to reinforce that the criteria for expert witness admissibility laid out in FRE 702 are just that – criteria for admissibility and not questions of weight.[4] When read properly, FRE 702 makes expert witness reliability a threshold question for judges to answer, and the amendments reinforce this “gatekeeping” function of judges.[5]  With the new amendments clarifying the role of judges as arbiters of whether an expert’s “opinion reflects a reliable application of the principles and methods [of relevant scientific, technical, or other specialized knowledge]” to the facts of the case, it is imperative that the judiciary is sufficiently literate in science and the scientific method to properly serve this function.

Rule 702. Testimony by Expert Witnesses (amendments italicized and stricken)

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The Importance of Scientific Acumen on the Bench

Science literacy on the bench – referring to the judiciary’s understanding and comprehension of scientific principles and methodologies – has become increasingly vital in the modern legal landscape. This form of literacy encompasses not just a basic grasp of scientific concepts but also an appreciation of how scientific knowledge evolves and how it can be rigorously applied in legal contexts. As courts frequently encounter cases involving complex scientific evidence – from DNA analysis to digital forensics – judges equipped with science literacy are better positioned to evaluate the credibility and relevance of expert testimony accurately. The absence of this scientific acumen can lead to significant judicial errors or misunderstandings.[6] Entire branches of forensic science such as bite mark analysis, microscopic hair comparison, and tire track analysis – once taken for granted as valid and widely accepted by courts – have been discredited as unreliable and lacking scientific underpinnings.[7] These misjudgments about the validity of forensic methods have previously led to wrongful convictions.[8] Lack of understanding in environmental science has sometimes resulted in rulings on cases involving pollution and climate change that are highly controversial regarding their interpretation of the science.[9] These examples underline the necessity for judges to possess a robust foundation in scientific literacy to ensure just and informed decision-making in an era where science and technology are deeply intertwined with legal issues.

The Need for Additional Educational Initiatives

Judges are often apprehensive when confronted with complex scientific evidence in cases, partly due to their limited background in the hard sciences, as illustrated by one judge’s shift from pre-med to law after struggles with organic chemistry.[10] This apprehension underscores the growing necessity for science literacy in the judiciary, particularly given that judges are well-equipped to handle the fundamental aspects of scientific evidence: accuracy in observation and logical reasoning.[11] While judges may not be familiar with the specific terminologies and conventions of various scientific fields, their aptitude in swiftly grasping diverse issues, coupled with focused science education programs, would equip them to adeptly handle scientific matters in court. The approach for addressing the distinctive need for judicial education in science necessarily differs from the typical science education for scientists. Judges don’t require extensive training in theoretical concepts or complex statistical inferences as scientists do. Their role is more akin to a scientific journal editor, assessing if the scientific evidence presented meets acceptable standards. This task is supported by attorneys, who educate judges on pertinent scientific issues through briefs and arguments. The key for judicial science education is accessibility and breadth, given the variety of cases a judge encounters. The Reference Manual on Scientific Evidence, a crucial resource, helps judges understand scientific foundations and make informed decisions without instructing on the admissibility of specific evidence types; however, the most recent edition was published in 2011 and does not reflect advances in science or emerging technologies relevant to judges today.[12] Judicial education programs supported by the Federal Judicial Center further enhance judges’ capabilities in addressing complex scientific and technical information in our rapidly evolving world.[13] While these resources serve an important function, repeated misjudgments of the quality of scientific evidence by courts indicates that additional resources are needed.

The amendments to Federal Rule of Evidence 702 reemphasize the role that judges play regarding scientific and technical evidence. These changes not only clarify the gatekeeping role of judges in assessing expert witness testimony but also highlight the growing imperative for science literacy in the judiciary. This literacy is essential for judges to make informed, accurate decisions in an era increasingly dominated by complex scientific evidence. The evolving landscape of science and technology underscores the need for continuous educational initiatives to equip judges with the necessary tools to adapt and respond effectively. Resources like the Reference Manual on Scientific Evidence – despite needing updates – and educational programs provided by the Federal Judicial Center play a crucial role in this endeavor. As the legal world becomes more intertwined with scientific advancements, the judiciary’s ability to keep pace will be instrumental in upholding the integrity and efficacy of the justice system. This progression towards a more scientifically literate bench is not just a necessity but a responsibility.

Notes

[1] https://www.gand.uscourts.gov/news/federal-rules-amendments-effective-december-1-2023.

[2] https://www.law.cornell.edu/rules/fre/rule_702.

[3] https://www.jdsupra.com/legalnews/upcoming-fre-702-amendment-reemphasizes-6303408.

[4] Id.

[5] https://www.apslaw.com/its-your-business/2023/11/30/return-of-the-gatekeepers-amendments-to-rule-702-clarify-the-standard-of-admissibility-for-expert-witness-testimony.

[6] https://www.americanbar.org/groups/judicial/publications/appellate_issues/2019/winter/untested-forensic-sciences-present-trouble-in-the-courtroom.

[7] Id.

[8] Id.

[9] https://slate.com/news-and-politics/2023/12/supreme-court-vs-science.html.

[10] https://www.americanbar.org/groups/judicial/publications/judges_journal/2017/fall/science-educatifederal-judges.

[11] Id.

[12] https://www.nationalacademies.org/our-work/science-for-judges-development-of-the-reference-manual-on-scientific-evidence-4th-edition.

[13] Id.


Who Qualifies for the Patent Bar? Proposed Changes May Mean More Applicants With Computer Science Degrees Soon Will

Nina Elder, MJLST Staffer

Last month, the United States Patent and Trademark Office (USPTO) put out a request for comments on a proposal to amend the admission requirements for the registration examination it administers. Passing this examination, colloquially referred to as the patent bar, is required before an aspiring practitioner can practice patent matters before the USPTO. To qualify for the test, applicants must demonstrate that they have the appropriate scientific and technical training. There are three ways to qualify, but most applicants are automatically admitted under “Category A” which simply requires a degree in an approved topic. The USPTO has historically adhered strictly to its list of approved degrees; for example, “biology” is included on the list, but in the past a degree in “biological sciences” did not qualify.

In 2021, the USPTO made its first major change to the admission requirements in years by expanding the degrees accepted under Category A to include advanced degrees and 14 new undergraduate majors. Though it did not officially announce it, the USPTO also edited its Frequently Asked Questions to reflect that it no longer requires that an applicant’s degree match a Category A degree title exactly, but instead evaluates any degree that is similar to an approved degree to determine if they are equivalent. However, even after these improvements there was still a clear lack of approved computer science-related degrees, and many attorneys felt the USPTO needed to do more. The USPTO’s new proposal at least partially addresses this issue and suggests several more changes, a key one being removing the certification requirement for computer science degrees.

Currently, computer science degrees only qualify under Category A if they are certified by either the Computing Accreditation Commission or the Accreditation Board for Engineering and Technology. This is the only degree accepted under Category A that requires extra certification. Qualifying under either of the alternative routes—Category B or C—may be nearly impossible for many students with computer science degrees. Category B requires an applicant establish they have the necessary training by showing they have a certain number of credits in particular scientific topics. However, the coursework needed for a computer science degree typically does not align with the subjects required for Category B such as physics, chemistry, and biology. Under Category C an applicant can prove they have practical training by taking the Fundamentals of Engineering test, but once again the information covered for a degree in computer science may not prepare a student for such a test. 

As of November 2022, there are only 368 schools in the US with a qualifying certified computer science program. Many highly respected schools, including Stanford, UC Berkeley, and Carnegie Mellon, do not have the required certification for their computer science programs. Considering there appear to be more than 700 four-year schools that offer computer science degrees, there are likely hundreds of computer science students graduating every year that do not qualify to take the patent bar under Category A and may have difficulty qualifying under Category B or C. Even if a school becomes accredited, any student that received a degree before that accreditation does not qualify.

The certification requirement may be excluding the “best and brightest” computer practitioners, and is contributing to the lack of practitioners with relevant experience in a heavily patented area. There is a huge disconnect between the number of patents related to software and the number of practitioners with a relevant background. As of 2010, less than 5% of patent practitioners trained in a computer science-related field. While decisions such as Alice Corp v CLS Bank International have limited what software can be patented, a growing number of patents at least include some element relating to computers and more than 60% of utility patents issued in 2019 related to software. There is clearly an increasing need for competent patent attorneys with experience in software and, if adopted, the USPTO’s current proposal would increase that pool.

It has also been suggested that altering patent bar requirements may improve diversity in patent law. Despite women making up more than 37% of attorneys in the US, only 17% of patent attorneys are women. Less than 15% of patent practitioners with a background in computer science are women. The picture is even more striking when we examine racial diversity—less than 7% of all patent attorneys and agents are minorities. Shockingly, there are more male patent practitioners named Michael than women of color. The USPTO’s broadening of the accepted degrees last year was spurred by a journal article written by a law student, Mary Hannon, suggesting that changes to patent bar admission may help address the low number of women in patent law. While she acknowledged that removing the computer science certification requirement would not close the gender gap since the majority of computer science graduates are men, she pointed out that by allowing more individuals with computer science degrees to take the patent bar the overall number of women admitted to the exam may increase

Many have been pushing for changes to the patent bar admission requirements for years, and while it is promising to see progress being made, there is still more that can be done. Organizations such as the American Intellectual Property Law Association have suggested Category A be broadened even further to include degrees such as data science and mathematics. The USPTO has not only shown willingness to continue updating these requirements, as evidenced by the fact it is proposing to regularly consider and add new Category A degrees, but also that it is responsive to comments. For example, environmental engineering was added to the list of accepted degrees at least partially in response to a comment. Kathi Vidal, USPTO’s current director, explained the goal is to ensure the USPTO remains dynamic by recognizing the new types of degrees being awarded as society and technology evolve. In its recent request for comments, the USPTO asked commenters to weigh in on its new proposals and to submit general suggestions on updating the scientific and technical requirements for admission to the patent bar. Comments close on January 17th, 2023—if you have thoughts about the degrees the USPTO should accept under Category A, go comment!



Law School Simulator 2020

Ian Colby, MJLST Staffer

You walk into the classroom. You read the cases and statutes last night. You wrote out a few notes. You think you’re ready. In this classroom, though, you don’t wait for the professor to get the PowerPoint ready. Instead, you slip on your virtual reality headset and start the simulation.

Now you’re sitting in the boardroom of a major corporation with the board of directors. Your headset lets you hear the simulated directors’ nervous talk. You get a few minutes to take in the glass paneling, the city skyline, and the furrowed brows of the worried directors. You can pick up and read reports on the table. You can select dialogue choices to chat with the directors. While the people and place aren’t photorealistic, it’s good enough to immerse you. When class starts, so does the meeting.

“Welcome, everyone,” the simulated President begins, “err…I’ve called this meeting to apprise you of a developing situation and to get some input from our counsel [you].” The president then lays out a series of facts that go from bad to worse:  the EPA has identified a toxic leak in a river adjacent to one of the company’s facilities. While the corporation has urged inspections for months, your dialogue with the directors indicates employees skip them. Rumors float that the on-site manager knew about a leak and covered it up. Now the toxic discharge has polluted the nearby river, residents are getting sick, and the EPA may file suit. The president turns to you. She asks, “Okay, Counsel, what is our first move?” 

Law School is a finite period of time in which the expectations start at “don’t even think about saying something possibly constituting legal advice” and ends at “you are qualified to evaluate, counsel, negotiate, and advocate for real clients without supervision.”  Other than those students who go onto BigLaw jobs (where the firm grudgingly expects to train the new lawyers instead), these three years are it. For the majority of that time, though, becoming a lawyer involves passive learning: reading and sitting in lectures. At the University of Minnesota, students must attend in-person, passive learning courses for 2/3rds of the credits to graduate. The Law School caps other learning methods. Students hope to absorb enough legal knowledge from these passive methods to do well on the course’s lone exam.

Law schools generally wish to develop lawyers that not only know the law, but who have the necessary skills to serve future clients. For example, of the 23 bulleted learning outcomes sought in a University of Minnesota Law School graduate, only 2 directly state that “knowing the law” is the expectation (Under “Client Service”, there is “Demonstrate broad knowledge of the law and the legal system of the United States” and under Ethics & Professionalism, there is “Know and comply with rules of professional conduct.”) The other 21 constitute crucial skills that budding lawyers cannot absorb from reading cases, passively listening to lectures, or trying to keep their heart still as a 1L, hoping they dodge the cold call. For both learning the law and developing crucial lawyering skills, passive learning means inefficient learning. Jennifer M. Cooper & Regan A.R. Gurung, Smarter Law Study Habits: An Empirical Analysis of Law Learning Strategies and Relationship with Law GPA, 62 St. Louis U. L.J. 361 (2017). While you may be expected to master those crucial lawyering skills, most of your credits do not work to help you develop them.

Now you actively respond to the President. Your choices drive the next interaction with the board. The simulation tests your ability to work with the myriad director personalities, gather the necessary information, demonstrate the application of the law, and maintain a poised tone. The simulation does not limit you to the boardroom. You can instantly immerse yourself in the sights and sounds of the waterfront, watch the on-site manager’s facial expressions as you interview him, or review a 3D model of the toxic substance.

Active, simulated learning, on the other hand, is a dramatically more efficient way to learn knowledge and skills. Active learning means learning by doing. Simulations, a type of active learning, allow students to learn by working through a problem in complex, real-time interactions in which they will need to apply that learning. Simulations provide instant feedback on students’ application of knowledge within these real-time scenarios. Finally, simulations provide experiences that a student may have never witnessed before. Many other professions—particularly those that “require mastery of complex knowledge and skills where the stakes for getting it right are high”—utilize simulations to teach the necessary skills and knowledge. Medical professionals, military personnel, firefighters, astronauts, and pilots all perform simulations as a necessary part of their training.

Law schools, recognizing the benefit of active learning and simulation training, have taken steps toward incorporating simulations into the curriculum. At Minnesota, for example, first year students must take Law in Practice. Law in Practice is a simulation course which provides real-time scenarios in which students must elicit and evaluate information, advocate for a client, and negotiate deals. The simulation puts the student on the hot seat: Minnesota’s program is mandatory, provides real-life actors in real-time scenarios, and students demonstrate their skills with local attorneys, judges, and mediators.

However, these real-life simulations are costly, logistically complex, and usually limited to what’s available. Law schools tend to provide simulations separately from doctrinal classes. For those law schools that cannot or do not arrange for real actors and legal professionals, the simulation may lose immersion.

To offer similar benefits as these simulations with fewer costs, and to integrate those benefits into the greater curriculum, law schools should invest in digital simulations. A digital simulation means any interactive, immersive experience that uses technology to provide that experience. While digital simulations can include the latest tech has to offer, such as virtual reality headsets, it does not have to. Interactive CALI lessons can be digital simulations. Video games can be digital simulations. The level of technology does not matter as long as the simulation is immersive, interactive, and provides feedback.

A digital simulation, if done well, would be relatively cheap, repeatable, and provide active, simulated learning opportunities for students. The technology for digital simulations has progressed enough to be readily available—indeed, a student’s smartphone may be used for virtual reality simulations. Law schools could implement digital simulations with less friction than other active learning techniques. The other professions mentioned above have increasingly looked to utilizing digital simulations as a way to provide the benefits of active learning, without the added costs.

There are no defined limits to the variety of clients in a digital simulation. Real-life simulations and other experiential courses depend on availability. Whatever is available becomes the focus of the experience. By contrast, only the imagination of a creator limits the variety of digital simulations. Even if the local market cannot provide a niche area of law, a simulation could. Providing the ideal voice actor becomes easier.

You made a mistake and blurt out that the board should shred all company documents. But you’re not worried. If you make a drastic mistake, the simulation can give you a prompt to try again. Instant feedback. You asked the professor after class about it. You can attempt a different choice that night. Instead of shredding all documents, you advise the board to preserve emails, reports, and other documents. 

Digital simulations have the added benefit of providing equity of experience. Unlike the real world, a digital simulation costs little to provide students with exposure to life, the world, or the legal industry. Further, students may repeat simulations with no additional cost until they become comfortable with the topic. By way of example, imagine that you are a law student who has never attended a boardroom meeting (shock!), never seen an easement on a plat, or never attended a courtroom hearing. A digital simulation would allow you to gain the experience of that context while also coming to understand the law. All other items being equal, would a student who has filed hundreds of complaints for a previous employer and a student who has no previous legal industry experience start out on the same footing in a Civil Procedure class? A digital simulation provides a chance for the latter student to catch up.

You remember the reading about environmental clean-up regulations, but this is your first time applying it. You “pause” the interactions with the board as you work your way through the problem. You don’t worry about wasting a professor’s time. You decide to keep the board paused, so you can check out the site itself. By the time you reach the final test in this class, you’ve lived the law as much as you’ve read about it. 

Law school provides a crucial time period to develop students’ skills in communication, client services, collaboration, professionalism, legal analysis, and legal knowledge without real world consequences. So why not introduce the cheap, efficient method of digital simulation to adequately develop these skills in the time we have?

 


Discussing the Legal Job Market Online: Optimism, Observation, and Reform

by Elliot Ferrell, UMN Law Student, MJLST Staff

Thumbnail-Elliot-Ferrell.jpgThe average law student incurs $125,000 of debt and pays almost twice as much in tuition as a student did in 2001. Law students are understandably concerned with the legal market’s job prospects, and many are vocal about. Students are not the only ones voicing their concerns, as a lawyers (employed and unemployed), professors, employers, and business people add their opinions and observations to the discourse as well. A common theme is to decry the rise of tuition costs and debt and the fall of enrollment and job openings.

The Minnesota Journal of Law, Science and Technology’s publication, You’re Doing It Wrong: How the Anti-Law School Scam Blogging Movement Can Shape the Legal Profession, describes this dialogue with a sense of optimism. According to the article, unemployed and underemployed lawyers contribute to the legal community through the voice of an outsider, facilitated by the openness and anonymity afforded by the internet. These contributions may contain valuable ideas and observations but are often plagued by gripes and vulgarities so common to internet communications emanating from forums or the blogosphere.

Additionally, the online news world is littered with articles espousing reasons for the gloomy outlook in the legal job market. However, many carry the same sense of optimism as previously indicated. One such article suggests that, after using a little math and some average attrition rates, the number of law school graduates per year and the number of job openings per year will equalize by 2016. This result is due to dwindling average enrollment and approximately equal number of graduates getting jobs each year. Despite the apparent logic of this approach, holding onto all of the variables involved staying the course likely requires an ardently optimistic law student.

Several commentators step back from the optimistic approach and suggest reforms intended to curb the cost of law school and increase a graduate’s job prospects. One proposal would remove the third year of law school to cut the tuition debt and hasten a student’s path into the workforce. However, such an idea is not without its pitfalls, such as a reduced readiness for the bar exam. Another idea is to increase practical education through clinical courses and partnerships analogous to medical residencies. Many schools already offer an array of different clinic experiences, but the notion of a legal residency would seem attractive to law students as it would offer an additional path to permanent employment.

What is the role of the student in this discussion? Perhaps, it is to let it run its course and hope for the job market to right itself. Perhaps, it is to chime in and advocate or simply make observations. Either way, there are certainly valuable contributions to be made, and, with access to the internet, there is little standing in your way.