What Animal Advocates, Policymakers, and the Press Can Learn from the Texas Supreme Court
Posted by Ryan Clinton, No Kill Advocate, Founder of FixAustin.org
It’s not often that my career as a Texas appellate lawyer intersects with my passion for America’s lost and homeless pets. Sure, both involve advocacy and underdogs (pun intended), but most of the time, there is little in common between them.
But as I recently re-read a number of seminal Texas Supreme Court cases regarding the validity (or lack thereof) of expert testimony, I had an unexpected “aha” moment: the Texas Supreme Court’s scrutiny of expert testimony is both relevant and beneficial to the No Kill movement because it establishes a meaningful process for distinguishing between constructive and helpful expert opinions, and those opinions— even if delivered by credentialed individuals— that are so untethered to objective and verifiable data that they are, in reality, no evidence at all. Of anything.
This is important.
Because in the animal-welfare world, self-proclaimed experts parade around the country with fancy capital letters on their shirts offering half-cocked theories on things they and their organizations know little or nothing about, often to the very real detriment of sheltered animals. And in many instances, the press and public officials take the fancy-lettered-shirt-wearing experts’ words as gospel. But as the Texas Supreme Court has made abundantly clear, an opinion of a credentialed individual is, as a matter of logic, unworthy of deference merely on account of his or her apparent credentials; instead, an opinion—regardless of source—is valid only if it is based on objective, relevant, and verifiable evidence.
In fact, the law has a term for a credentialed individual’s baseless opinion: ipse dixit. Literally, ipse dixit means “He himself said it.” Or has others have translated it, “it is so because he says it is so.” Black’s Law Dictionary defines ipse dixit as “a bare assertion resting [only] on the authority of an individual.”
In other words, there are some expert opinions that are helpful, meaningful, material, and probative of whatever it is the expert is speaking about, and there are other expert opinions that are merely the ipse dixit of a credentialed witness. The former are helpful; the latter are devoid of any merit whatsoever regardless of source. The rub is distinguishing between them, and that’s where the Texas Supreme Court comes in. According to the Court, a credentialed expert’s opinion is evidence of nothing at all—indeed, it isn’t even admissible for consideration—if:
· It is not based upon a reliable evidentiary foundation;
· It is not “sufficiently tied to the facts”;
· It is nothing “more than ‘subjective belief or unsupported speculation”;
· “[T]here is too great an analytical gap between the data the expert relies upon and the opinion offered”;It “is based on assumed facts that vary materially from the actual, undisputed facts”;
· It is based on nothing more than the expert’s “bald assurance”;
· “[T]here is no explanation of how [proven facts] affected [the expert's conclusions]“;
· The expert’s opinions are based on a flawed methodology; or,
· There is a “flaw in the expert’s reasoning from that data [that renders] reliance on [the opinion] unreasonable and render[s] the inferences drawn therefrom dubious.”If any of these things is true, the expert’s opinion “is unreliable and, legally, no evidence” at all. It amounts to nothing of value.
· This test should be a tool for every animal-welfare advocate. When a fancy-lettered expert strolls into your town and claims they know better than you, challenge them. When a self-proclaimed expert writes a letter-to-the-editor to your town’s newspaper defending and promoting shelter killing, challenge them. Test their opinions by the criteria of the Texas Supreme Court. And when their defense of status-quo shelter killing fails to pass muster— as it inevitably will— call it what it is: ipse dixit.
When your shelter director claims that it is “impossible” for a shelter to save 90% of impounded dogs and cats, call it ipse dixit, because that opinion is contrary to the undisputable fact that there are communities all over the country that are already saving 90% (or more) of impounded dogs and cats.
When your county officials claim that saving lives requires becoming limited-admission, call it ipse dixit, because that opinion is not tied to the objective, verifiable facts that No Kill reforms can work in open-admission shelters.
When your elected leaders claim that shelters cannot save lives until the “irresponsible public” rights itself and magically becomes responsible, call it ipse dixit, because that opinion is based on nothing more than subjective belief and unsupported speculation.
Do not hesitate to challenge the opinions of self-appointed experts— especially those coming from organizations that claim to know better than you, but in reality know nothing about No Kill reforms, policies, and programs. When you demonstrate that their baseless opinions wouldn’t even be considered in court, you will undermine the authority they claim to have, and you will level the playing field to enable a real, meaningful, fact-based discussion on what is best for sheltered animals. And when you can have a real conversation— based on actual facts— to determine what is best for animals, the animals win.
The fancy-lettered shirts won’t have anything on you.