Everything You Need to Know

On December 1, 2023, significant amendments to Federal Rule of Evidence 702 will take effect. These amendments, which were approved by the U.S. Supreme Court in April 2023, will impact the admissibility of expert testimony in federal courts.

The Rule 702 states that expert testimony is admissible if the proponent demonstrates that the expert is qualified and that the testimony is relevant and helpful to the trier of fact. The amended Rule 702 adds a new burden of proof for the proponent, who must now demonstrate that the expert’s testimony is “more likely than not” reliable.

This article will discuss the key changes to Rule 702 and their implications for attorneys and litigants. It will also provide specific actionable steps that attorneys can take to prepare for the amended rule.

Key Changes to Rule 702

The amended Rule 702 makes two key changes to the existing rule:

1. Burden of proof: The proponent of expert testimony now has the burden of demonstrating by a preponderance of the evidence that the testimony is reliable. This means that the proponent must show that it is more likely than not that the testimony is reliable, rather than just possible.
2. Focus on reliability: The amended rule places a greater emphasis on the reliability of expert testimony. The proponent must now demonstrate that the expert’s testimony is based on sound scientific, technical, or other specialized knowledge and that the expert has reliably applied that knowledge to the facts of the case.

Implications of the Amendments

The amendments to Rule 702 are significant and could have a significant impact on the admissibility of expert testimony in federal courts. Attorneys and litigants should be aware of the following implications:

• Increased scrutiny of expert testimony: Judges will be more likely to scrutinize expert testimony under the amended rule. Attorneys should be prepared to provide a strong foundation for their expert’s testimony, including evidence of the expert’s qualifications, the reliability of the expert’s methodology, and the relevance of the expert’s testimony to the case.
• More challenges to expert testimony: Opposing counsel is likely to challenge expert testimony more frequently under the amended rule. Attorneys should be prepared to defend their expert’s testimony and to argue why it is reliable and relevant.

Preparation for Attorneys

In light of the amended Rule 702, attorneys should take the following steps to prepare:

• Carefully select your experts: Choose experts who are highly qualified and experienced in their field. Make sure that the experts’ testimony will be based on sound scientific, technical, or other specialized knowledge.
• Work with your experts early: Provide your experts with all of the relevant information about your case early on. This will give them time to prepare their testimony and to address any potential challenges.
• Be prepared to defend your experts’ testimony: Be prepared to argue why your expert’s testimony is reliable and relevant to the case. Be able to explain the expert’s methodology and why it is sound.

The Rule 702 Debate

The amendments to Rule 702 have been the subject of much debate and discussion. Some commentators have argued that the amendments will make it more difficult for plaintiffs to win cases, while others have argued that the amendments will simply ensure that expert testimony is more reliable.

A recent study by the American Bar Association found that the majority of attorneys believe that the amendments to Rule 702 will have a negative impact on their clients’ cases. The study also found that attorneys are more likely to retain experts under the amended rule, but that they are also more likely to challenge opposing counsel’s experts.

Legal practitioners must familiarize themselves with the new amendments to ensure that their practice conforms to the new standards. They are a reminder that the law is not static but a dynamic framework that must adapt to the ever-changing societal context.

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