Focused Expertise — Daubert in Franchise Litigation

Federal Judge Robert J. Hemphill defined an expert witness as “a man you pay to say your way.” When those words were spoken in 1978, the venerable Frye standard, enunciated in 1923, governed the admissibility of expert testimony. It required admissible expert opinion to be “of a type reasonably relied upon by experts in the field.” This was the federal rule, followed by many states, until 1993.

Under Frye, it was difficult to introduce novel concepts of science or technology that had not yet gained general acceptance into evidence; the proponent of a method or procedure was required to show the generally accepted reliability of such procedure in the relevant community through judicial opinions, scientific or legal writings, or expert opinion other than that of the proffered expert. As Justice Scalia commented in Kumho Tire Co. v. Carmichael, the Frye standard sometimes led to admission of “expertise that is fausse and science that is junky.”

Republished with permission. The full article, "Focused Expertise — Daubert in Franchise Litigation," was published in the Summer edition of the American Bar Association's Franchise Law Jounal.