The elephant in the Court room: Speculation, conjecture and opinion of evaluations and mediator’s recommendations.

elephantAny parent that deals with the court system is eventually exposed to a mediator’s report or an evaluation report.
Some truly astounding statements are made in these reports that a judicial officer relies on. They range from equating being Caucasian with a “Caucasian culture”; stigmatizing another culture for the close ties that “they” have with their children and the manner in which children are raised in said culture; discriminating against certain areas based on perceived crime rate and educational opportunities; recognizing that a father labels a mother mentally ill to have her deported but NOT seeing anything wrong with that conclusion; or stigmatizing an American mother for having the audacity to work and provide for her children. In some cases the other parent is put on notice due to the verbal abuse against a parent and children by the evaluator and the abusive emails to the parent were explained due to FRUSTRATION; in another game of blame the victim for having the audacity to actually exist. Words can be twisted to suit any purpose rather than applying them to the actual facts of the case.

Evaluations by court appointed evaluators and those linked to the court don’t work for a reason. The court has a vested interest in covering up for their heinous rulings and the pattern that has emerged in some of the evaluations cited above is that an evaluation is skewed to fit the parent paying for the evaluation or to cover up for the heinous conditions caused by a court.

The common denominator is that evaluations and mediators reports are based on speculation, conjecture, opinion AND hearsay and are actually inadmissible under certain circumstances, and if objections are phrased in a certain manner, yet they are routinely used by trial courts across California.

There is a large body of California cases holding it is improper for experts to offer opinions based on conjecture or speculation, or not supported by the cited materials. (See, e.g., People v. Venegas (1998) 18 Cal.4th 47 at 78).In Lockheed Litigation Cases (2004) 115 Cal.App.4th 558; Roscoe Moss Co. v. Jenkins (1942) 55 Cal.App.2d 369 [expert may not base opinion upon a comparison if the matters compared are not reasonably comparable]; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108; People v. Richardson (2008) 43 Cal.4th 959, 1008; and People v. Moore (2011) 51 Cal.4th 386, 405.

For example, in In Re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, the Court of Appeal upheld trial court’s striking of expert witness’ declaration on the basis that it was speculative, unsupported by relevant scientific data and used an unreliable methodology, stating:

“An expert opinion has no value if its basis is unsound. [Citations.] Matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion. Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on in forming an opinion upon the subject to which his testimony relates.’ (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.” Lockheed Litigation Cases, supra., 115 Cal. App. 4th at 564.

In Roberti v. Andy’s Termite and Pest Control, Inc., (2003) 113 Cal.App.4th 893, the Court of Appeal held that the Kelly-Frye rule had no application to expert medical testimony, there concerning causation of autism:

“Under California law, the predicate for application of the Kelly rule is that the expert testimony is based, at least in some part, on a new scientific technique, device, procedure, or method that is not generally accepted in the relevant scientific community. The predicate is not that the opinion or underlying theory asserted by the expert is itself not generally accepted in the relevant scientific community or is faulty. Absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly-Frye.” Id. at 902.

A recent 2012 Supreme court ruling clarified the trial court’s gatekeeper role. In Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747), the Supreme Court encouraged trial courts to examine the experts’ use of foundational materials to see whether the experts’ conclusions are logically supported by the materials used, and to preclude any expert’s testimony where it is speculative or otherwise improper. (Id. at 770-771.)

The Supreme Court found:

“Under Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, [t]he expert’s opinion may not be based on ’assumptions of fact without evidentiary support [citation], or on speculative or conjectural matters. . . . Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide? (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117); People v. Richardson (2008) 43 Cal.4th 959, 1008; accord People v. Moore (2011) 51 Cal.4th 386, 405.)” Sargon, supra., ___ Cal.4th ____ (212 DJDAR at 15853).

“…under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony.” Id. at 15854.

The Supreme Court cautioned trial judges to not overstep their authority.

“The trial court’s gatekeeping role does not involve choosing between competing expert opinions. The high court warned that the gatekeeper’s focus must be solely on principles and methodology, not on the conclusions that they generate. (Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. at p. 595.)…” Id.

“The trial court’s preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion’s probative value or substitute its own opinion for the expert’s opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a ’circumscribed inquiry’ to determine whether, as a matter of logic, the studies and other information cited by the experts adequately support the conclusion that the expert’s general theory or technique is valid.” Imwinkelried & Fagman (supra) [Evidence Code section 802: the Neglected Key to Rationalizing the California Law of Expert Testimony] 42 Loyola L.A. L. Rev. at 449. (Imwinkelried & Faigman, supra, 42 Loyola L.A. L.Rev. at p. 449.) The goal of trial court gatekeeping is simply to exclude clearly invalid and unreliable expert opinion. (Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge (1994) 72 Tex. L.Rev. 715, 788.) In short, the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. (Kumho Tire Co. v. Carmichael, supra, 526 U.S. at p. 152. Id.”

Another minor fact is that all of these reports heavily rely on hearsay to present their opinion, speculation and conjecture. Pursuant to CA evidence code 1200 (b) hearsay evidence, unless otherwise provided by law, is inadmissible.


One comment on “The elephant in the Court room: Speculation, conjecture and opinion of evaluations and mediator’s recommendations.

  1. It gets even better. The courts and evaluators, family law attorneys, and courts themselves know evaluator testimony is unreliable, yet continued to use it. It’s pure fraud.

    If you’ve been harmed by an evaluator, we invite your attention to our article describing how you may be able to do something about it.

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