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Daubert in Kansas: Prompting a Fresh Look at the Admissibility of Scientific Evidence

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Daubert in Kansas: Prompting a Fresh Look at the Admissibility of Scientific Evidence Your Partner in the Profession | October 2015 • Vol. 84 • No. 9 Remembering Chief Justice Kay McFarland P9 Celebrate Pro Bono 2015 – Take Part in the Celebration P12 November 2 Mandate is Inspiration for Attorneys to Electronically File in Appellate Courts P20 Daubert in Kansas: Prompting a Fresh Look at the Admissibility of Scientific Evidence 22 | Daubert in Kansas: Prompting a Fresh Look at the Admissibility of Scientific Evidence By Kyle Malone Cover layout & design by Ryan Purcell, [email protected] 9 | Remembering Chief Justice Kay McFarland 18 | KBA Benefits: Helping You With Peace of By Amanda Stanley Mind, Efficiency, and Becoming a Better Lawyer 12 | Celebrate Pro Bono 2015 – Take Part in the By Jordan E. Yochim Celebration 20 | November 2 Mandate is Inspiration for 14 | Thinking Ethics: Resolving Ethical Dilemmas Attorneys to Electronically File in Appellate By Stanton A. Hazlett Courts By Justice Dan Biles Regular Features 6 | KBA President 16 | Law Students’ Column By Natalie G. Haag By Merideth Hogan 8 | YLS President 17 | Members in the News By Justin Ferrell 17 | Obituaries 10 | Substance & Style By Joyce Rosenberg 30 | Appellate Decisions 15 | Law Practice Management Tips & Tricks 32 | Appellate Practice Reminders By Larry N. Zimmerman 38 | C lassified Advertisements E Let your VOICE be TH 2015-16 Heard! KBA Officers & Board of Governors President JOURNAL Natalie Haag, [email protected] OF THE KANSAS BAR ASSOCIATION President-Elect Stephen N. Six, [email protected] Vice President 2015-16 Gregory P. Goheen, [email protected] Journal Board of Editors Secretary-Treasurer Bruce W. Kent, [email protected] Richard D. Ralls, chair, [email protected] Immediate Past President Terri Savely Bezek, BOG liaison, [email protected] Gerald L. Green, [email protected] Hon. David E. Bruns, [email protected] Young Lawyers Section President Boyd A. Byers, [email protected] Justin L. Ferrell, [email protected] Emily Grant, [email protected] District 1 Connie S. Hamilton, [email protected] Christi L. Bright, [email protected] Katharine J. Jackson, [email protected] Toby J. Crouse, [email protected] Michael T. Jilka, [email protected] Mark A. Dupree, [email protected] Lisa R. Jones, [email protected] Mira Mdivani, [email protected] Hon. Janice Miller Karlin, [email protected] District 2 Casey R. Law, [email protected] Hon. Sally D. Pokorny, [email protected] Sarah E. Warner, [email protected] Julene L. Miller, [email protected] Hon. Robert E. Nugent, [email protected] District 3 Eric L. Rosenblad, [email protected] Professor John C. Peck, [email protected] District 4 Rachael K. Pirner, [email protected] Brian L. Williams, [email protected] Karen Renwick, [email protected] District 5 Teresa M. Schreffler, [email protected] Terri S. Bezek, [email protected] Richard H. Seaton Sr., [email protected] Cheryl L. Whelan, [email protected] Sarah B. Shattuck, [email protected] District 6 Richard D. Smith, [email protected] Tish S. Morrical, [email protected] Marty M. Snyder, [email protected] District 7 Matthew A. Spurgin, [email protected] Gary Ayers, [email protected] Catherine A. Walter, [email protected] Hon. Jeffrey E. Goering, [email protected] Beth A. Warrington, staff liaison, [email protected] J. Michael Kennalley, [email protected] Issaku Yamaashi, [email protected] District 8 Natalie Yoza, [email protected] John B. Swearer, [email protected] District 9 The Journal Board of Editors is responsible for the selection and editing of David J. Rebein, [email protected] all substantive legal articles that appear in The Journal of the Kansas Bar District 10 Association. The board reviews all article submissions during its quarterly Jeffery A. Mason, [email protected] meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Beth District 11 Warrington, communication services director, at [email protected]. Nancy Morales Gonzalez, [email protected] District 12 William E. Quick, [email protected] The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December At-Large Governor for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., Bruce A. Ney, [email protected] and at additional mailing offices. The Journal of the Kansas Bar Association KDJA Representative is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, Hon. Michael F. Powers, [email protected] KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember KBA Delegate to ABA subscription rate is $45 a year. Linda S. Parks, [email protected] Rachael K. Pirner, [email protected] The Kansas Bar Association and the members of the Board of Editors assume ABA State Delegate no responsibility for any opinion or statement of fact in the substantive Hon. Christel E. Marquardt, [email protected] legal articles published in The Journal of the Kansas Bar Association. Copyright © 2015 Kansas Bar Association, Topeka, Kan. Executive Director Jordan E. Yochim, [email protected] For display advertising information contact Bill Spillman at (877) 878-3260 or email [email protected]. For classified advertising information contact Beth Warrington at (785) 234- OUR MISSION 5696 or email [email protected]. Publication of advertisements is not to be deemed an endorsement of any The Kansas Bar Association is dedicated to advancing the professionalism product or service advertised unless otherwise indicated. and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public POSTMASTER: Send address changes to The Journal of the Kansas Bar understanding of the law, and promoting the effective administration of Association, 1200 SW Harrison St., Topeka, KS 66612-1806. our system of justice. 4 The Journal of the Kansas Bar Association kba president Are You Prepared to Protect Your Employees and Clients? t may seem like we have a proliferation of monthly aware- For instance, even though the Violence Against Women Act ness campaigns, i.e., Breast Cancer Awareness Month, and the Fair Housing Act5 provide specific housing related Alzheimer’s Awareness Month, ALS Awareness Month, protections, 50 percent of U.S. cities surveyed reported that I 6 etc. Recent news reports pointing to the successful medical domestic violence is a primary cause of homelessness. The research results funded by the ALS Ice Bucket Challenge dem- impact of domestic violence on housing in Kansas is reflected onstrate one reason we need to remain aware of and contrib- in cases like In re T.J.C.-R.,7 where the court noted that evi- ute toward the cure for all these diseases. While all of these are dence presented when the CINC action was initiated showed worthwhile causes, October is Domestic Violence Awareness the mother was living in a one-bedroom apartment with five Month, and I want to remind you about how domestic vio- children and though the mother, at the insistence of the case lence directly impacts the entire legal community and have worker, applied for Section 8 housing, the mother found that you consider some points of action. she was ineligible for residency in some apartments because of Based upon 2003 Centers for Disease Control and Preven- her history of domestic violence. tion estimates, the American Bar Association reports that the Other potential benefits or protections to consider are pro- cost of intimate partner rape, physical assault, and stalking vided by the Employment Security Insurance Act for Do- totals more than $8.3 billion each year in the Unites States for mestic Violence Survivors;8 Americans with Disabilities Act; direct medical and mental health care service and lost produc- Kansas Protection from Abuse Act;9 Protection from Stalking tivity for paid work and household chores.1 Act;10 and the Workers Compensation Act.11 While most lawyers don’t stop to think about the negative Outside the legal community, state and local programs also ramification domestic and sexual violence has on them, as em- provide resources for helping victims. In a survey by the Na- ployers we experience the negative impact on employee work tional Network to End Domestic Violence it was found that attendance, performance, morale, and longevity. Our employ- during one 24-hour period, local domestic violence programs ment policies should address how to report and respond to vi- across the country provided help and safety to 67,646 adults olence in the workplace as well as the rights of victims to time and children who were victims of domestic violence.12 Yet on off work to deal with medical and legal matters arising out of that very same day, there were 10,871 requests for services domestic violence situations.2 The ABA encourages lawyers to that could not be met due to lack of funding.13 In Kansas have formal workplace policies in place and provides informa- there were 951 victims served by existing programs in that tion on its website about key issues. same 24-hour time period and 284 unmet request for service, As the ABA data reflects, those issues are widespread in of which 113 (46 percent) were for housing.14 our workforce: “Domestic, dating, sexual, and stalking vio- Action plan: (1) ensure that your employment policies ad- lence are workplace issues that
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