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Changes to Rule 702: An Expert’s Perspective

Posted in News, on Dec 2023, By: Mark S. Gottlieb

The admissibility of expert witness testimony serves as a cornerstone in modern legal proceedings, offering a lens through which complex, specialized knowledge can enlighten the trier of fact. As an expert witness for over 30 years, I have seen the standards for admissibility of expert testimony grow increasingly stringent over time. But who now bears the responsibility of ensuring an expert is fit to serve in that particular legal proceeding?

The recent amendment to Rule 702 of the Federal Rules of Evidence, effective as of December 1, 2023, underscores a pivotal shift: elevating the burden of proof on the proponent of the expert witness and amplifying the role of judges in determining admissibility.

See below for the amendment:

Rule 702.  Testimony by expert witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

  1. a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
  2. b) the testimony is based on sufficient facts or data
  3. c) the testimony is the product of reliable principles and methods
  4. d) the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case

This slight change in verbiage places a much clearer burden on the party offering the expert and makes reliability an issue of admissibility for judges, not just an issue of credibility/weight for the jury.

Picking the Right Expert Witness

As this amendment just went into effect a few days ago, scrutiny of expert qualifications and methodology will become even more rigorous. Here are some key considerations for both attorneys and judges :

  • Make sure the expert truly specializes in the precise area that is most relevant to your case. General expertise is not enough. Thoroughly vet the expert’s background, training, professional memberships, experience, and testimony history. Look for consistency and a proven track record.
  • Assess if the expert can clearly communicate complex ideas to laypeople
  • Evaluate if the methods and principles used by the expert are reliable and truly applicable to the facts at issue.
  • Don’t be afraid to be an aggressive gatekeeper regarding admissibility under the toughened Rule 702 standards. Safeguard the integrity of the evidence presented.
  • Scrutinize the relevance of the expert’s knowledge to the specific legal and factual issues to be resolved. Ensure opinions match the scope of expertise.
  • Require attorneys to demonstrate it is more likely than not that the expert testimony in question is reliable, relevant, and resting on sufficient facts.
  • Ascertain that the expert applied methodologies reliably and that the conclusions flow logically from the analysis. Don’t allow analytical gaps.

In navigating this evolved terrain, both legal practitioners and judges shoulder the responsibility of discerning, ensuring that only the most reliable and pertinent testimonies shape the adjudication process.

Don’t risk your case on anything less than a highly vetted, comprehensively qualified expert. For more information on our expert witness services and how we can aid your next case, schedule a 15-minute discovery call with Mark S. Gottlieb here.