When Good Law Produces Bad Science

Compelled examinations under Civil Rule 35

BY ANDRÉ M. PEÑALVER

This piece comes from a longer article entitled, “Adversaries and Experts: Legal Tradition Versus Empirical Science” (2026), Seattle University Law Review Online 39, available at https://digitalcommons.law.seattleu.edu/sulr_supra/39.

The motion before the court was routine. In a personal injury case, the defense moved under Civil Rule 35 to compel a neuropsychological examination. The plaintiff alleged psychological injury. The defense retained a neuropsychologist who proposed a standard battery of tests—with one condition: the testing portion could not be observed or recorded.

The objection was just as familiar. Plaintiff’s counsel argued that a CR 35 examination is an adversarial proceeding and that fairness requires observation by counsel or a representative. Washington case law supported the position. The legal argument was sound.

But so was the science. The neuropsychologist submitted peer-reviewed literature explaining that third-party observation measurably compromises testing. Even small departures from standardized conditions risk invalidating results. The presence of an observer—whether a lawyer, a paralegal, or a camera—can alter performance in ways that undermine reliability.

The court was left with two internally coherent positions. One spoke the language of legal fairness. The other spoke the language of empirical validity. Both were right within their own systems. And yet the court had to choose.

That choice—between legal process and scientific truth—is not rare. With more and more evidence-based tools at our disposal, it is increasingly routine.

Two Theories of Knowledge

Legal process and scientific methodology arrive at truth in two different ways, developed in different eras of Western thought. Our legal tradition, rooted in medieval dialectics, assumes that truth will emerge from a process of dialogue: one party presents a thesis; the other party presents an antithesis; and the court synthesizes the two in the form of a ruling. The law therefore gives great weight to process in the form of transparency, equal footing, and safeguards against abuse—values that are especially salient in compelled examinations.

Scientific validity, rooted in Enlightenment empiricism, locates truth by measurement. It concerns itself with standardization, reliability, and control of variables. In fields such as neuropsychology, even modest departures from established protocols can affect the accuracy and interpretability of results.

As a result, a legal procedure may fully satisfy the demands of adversarial fairness while diminishing the usefulness of the resulting data. Conversely, a method that preserves scientific rigor may violate procedural fairness—simply trusting the expert’s work, for example. When courts confront disputes involving scientific testing, they are often asked, implicitly, to navigate this tension without being asked to resolve it directly.

If the scientific consequences of procedural choices are not squarely presented, courts will naturally resolve the issue using the legal tools most readily at hand, often at the expense of the science.

Why Legal Fairness Alone Falls Short

CR 35(a) states, in part: 

(1) Order for Examination.  When the mental or physical condition … of a party … is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist …

(2) Representative at Examination. The party being examined may have a representative present at the examination, who may observe but not interfere with or obstruct the examination.  

(3) Recording of Examination. Unless otherwise ordered by the court, the party being examined or that party’s representative may make an audiotape recording of the examination, which shall be made in an unobtrusive manner.  A videotape recording of the examination may be made on agreement of the parties or by order of the court.

CR 35 case law is well developed on questions of attendance, observation, and safeguards against abuse. What it does not answer is whether a test, particularly a mental examination, still works under those conditions.

That gap matters. An invalid test does not simply harm the party who requested it. It distorts settlement discussions, expert reports, mediation outcomes, and trial testimony. A result that appears neutral and authoritative—but is methodologically compromised—can mislead everyone involved.

Courts are not hostile to science. They are simply asked to resolve scientific disputes using procedural tools that were never designed to assess empirical reliability. Faced with competing assertions, judges do what the system trains them to do: they apply precedent, protect rights, and resolve the motion before them.

When lawyers frame disputes entirely in terms of legal process, courts have little choice but to attend to the legal process, even when the real issue is scientific.

How Lawyers Accidentally Make It Worse

These conflicts are rarely the result of bad faith. More often, they stem from how lawyers are trained to argue.

Scientific objections are treated as litigation tactics rather than threshold concerns. Lawyers argue about access and observation without engaging the underlying question of validity. Experts are expected to handle the science, relieving counsel of the obligation to understand it.

This approach carries risks.

First, experts are expensive. Reliance on expert testimony as the sole gateway for scientific understanding advantages repeat players and well-resourced litigants. Second, judges—acting as gatekeepers—must assess competing expert claims without independent tools to distinguish reliable science from flawed methodology. Third, when science is filtered entirely through adversarial advocacy, it becomes just another thing to win.

The result can be procedurally correct outcomes that rest on empirically unsound foundations.

The CR 35 Problem

CR 35 disputes illustrate this tension vividly. The rule authorizes compelled examinations precisely because certain claims cannot be evaluated without them. But when the conditions imposed to protect adversarial fairness undermine the validity of an examination, the purpose of the rule is defeated.

Ordering an examination that produces unreliable data does not advance truth. It merely creates the appearance of neutrality.

Courts sometimes attempt pragmatic compromises—limited recording, conditional observation, or creative safeguards. These solutions may be necessary, but they are often improvised, unsupported by clear scientific guidance, and treated as case-specific exceptions rather than acknowledgments of a deeper problem.

The problem is not CR 35. It is how scientific disputes are framed.

What Lawyers Can Do Differently

Lawyers play a central role in helping courts navigate conflicts between legal procedure and scientific validity. A few modest shifts in approach can materially improve outcomes.

Take Scientific Claims on Their Own Terms. When a dispute turns on data, persuasion alone is not enough. Lawyers should ask whether a scientific claim is empirically supported, how it was tested, and what its limitations are. This does not require advanced training, but it does require familiarity with basic concepts such as reliability, error rates, and study design. 

Experts may be helpful, but they should inform—not substitute for—counsel’s understanding. A lawyer who can independently assess an expert’s methodology is better positioned to present credible testimony and to identify flawed opinions. If counsel does not understand the science, it is unlikely the court will.

Effective advocacy begins with engaging the data itself. Arguments built from the evidence, rather than arguments searching for evidence after the fact, are more durable—particularly when faced with competing experts or a judge who is closely engaged.

Make the Empirical Stakes Clear to the Court. Judges are often asked to choose between legal arguments and scientific objections without a clear framework for evaluating the latter. In the absence of formal training in empirical reasoning, courts rely on how lawyers frame the issue.

Counsel can assist by explaining not just what the scientific objection is, but why it matters: what is lost when protocols are compromised, how reliability is affected, and what downstream consequences follow from invalid data. Scientific validity is not an abstraction; it directly affects the accuracy and usefulness of the court’s decision-making.

Propose Procedures That Protect Both Fairness and Validity. In discovery disputes, evidentiary hearings, and motion practice, lawyers should consider whether proposed safeguards enhance or undermine the underlying science. Procedural fairness and empirical rigor are not inherently in conflict, but courts often need help seeing how to protect both.

That may require creativity—stipulations, alternative safeguards, or tailored limitations that preserve adversarial protections without breaking the science. When lawyers offer courts practical options rather than binary choices, better solutions are more likely to emerge.

Better Questions, Better Outcomes

Scientific evidence will continue to shape litigation across practice areas, from personal injury and family law to criminal trials and sentencing. Courts will continue to rely on lawyers to frame these disputes.

When we reduce scientific questions to procedural ones, we ask courts to answer the wrong questions. The result may be good law, but bad science.

If we want outcomes that are not only fair, but accurate, we must help courts engage with empirical reality directly. That begins with asking better questions, earlier in the process, and recognizing that sound legal process is not always the same as truth. 

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