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Monday, August 25, 2014

Pronouncing "Daubert": An Important Lesson You May Not Learn in Evidence Class

Last week I wrote a post on expert evidence. In doing so, I cited Daubert v. Merrell Dow Pharmaceuticals, which is the case establishing the most widely-used test for admitting experts' conclusions and opinions.

While I am fairly familiar with the legal test that Daubert establishes, I realized after writing that post that I was not sure how to pronounce "Daubert." I've heard the case pronounced in a variety of ways. For intance, here the case is pronounced so it sounds like "Daw-burt" and here it's pronounced "Dow-burt. In this video the speaker notes that while he pronounces it "Daw-burt," there are those who prefer "Daw-bear." He says that he hears this pronunciation from those below the Mason-Dixon line, which surprised me -- since I thought he was referring to people from Chicago. I've also heard a "Dough-burt" variation, though I could not find any Youtube examples.

I remember a lot of what I learned in evidence class, but I unfortunately do not recall whether I was taught which of these varying pronunciations is correct. It is very possible that even if this was covered, it slipped my mind at the time, since the pronunciation of "Daubert" was not a top priority when it came to preparing for the exam. I decided that I would look into this issue in the event that I ever need to pronounce the name of this case in court or in conversation.

Fortunately, I was able to find an authoritative source on the subject. Michael Gottesman, the attorney for the plaintiffs in the Daubert case, wrote a 1994 article in the Emory Law Journal entitled, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor. (43 Emory L.J. 867). At the beginning of that article, he confronts the pronunciation of "Daubert" head on:
Among the handful I've been fortunate to represent in this new capacity have been the families of Jason Daubert and Eric Schuller, the petitioners in the case that has mistakenly come to be called the “Dough-bear” case. My principal contribution to this Symposium is to report that the folks who brought this case to the Supreme Court pronounce their name “Dow-burt”-or, as some might say, exactly as it's spelled. The penchant for foreign fancies has caused many to show their expertise in French pronunciation at the expense of this all-American family.
The confusion was hardly mitigated during the Supreme Court argument. The first Justice to use the name in framing a question chose “dough-bear,” and I faced the tricky tactical question of whether to spend my precious time (and all hope of kindly reception) correcting this judicial mispronunciation. I opted not to, and the rest of the Justices all then assumed, gallingly, that the Gallic was apropos. 
Let me, then, use this occasion to make amends to my clients. The family's name is not dough-bear. Whether this will (or should) affect the way people pronounce the name of the Supreme Court's opinion is, of course, another matter. Do the litigants or the Court own title to the pronunciation of the name of a Court opinion?
So -- it looks like "Dow-burt" is correct. Go forth and spread the news, and don't hesitate to correct your colleagues and loved ones.

But I would like to mention one final caveat that will guide my own practice. If I am ever in court and if I hear a judge pronounce the case "Daw-burt," or even "Dough-bear," I'll do my best to conform my own pronunciation to the judge's. I recommend that others do the same.

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