One of my first bosses in the law business had a rule about rules. We weren't allowed to discuss Court Rules or the Rules of Evidence with him unless we had the rulebook open to the text of the rule. That's a good practice, because the rules frequently change.
Recently, FRE 702 - the "gatekeeper" rule - was amended to make it harder to get expert testimony admitted. The text of the rule now expressly incorporates a preponderance of the evidence standard, and reads as follows:
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 demonstrates to the court that it is more likely than not that:
(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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
A few observations on the significance of the new rule:
Clarification of the Burden of Proof: The revised rule explicitly states that the proponent of expert testimony must demonstrate its admissibility by a preponderance of the evidence. This change emphasizes that Rule 702 provides substantive requirements for admission and reinforces the judge’s duty to evaluate the sufficiency of the expert’s methodology and application.
Strengthening Judicial Gatekeeping: The revisions address recurring issues where courts allowed expert testimony that did not satisfy the reliability standards. The amended rule highlights that opinions should not be admitted based on a mere assertion of credentials or general acceptance of the field. Judges must thoroughly assess whether the expert’s principles and methods have been applied reliably to the specific facts of the case.
Implications for Practitioners
More Rigorous Scrutiny of Expert Testimony: Trial lawyers must prepare to demonstrate, with detailed evidence, that their expert’s methodology is sound and appropriately applied. This shift will require additional pretrial preparation and more extensive Daubert hearings.
Increased Challenges to Marginal Experts: The revisions will likely embolden opposing counsel to challenge expert testimony more aggressively, particularly when the expert’s methodology or application of principles seems weak.
Potential for More Consistent Rulings: By providing clearer guidance, the revisions may reduce variability in how different courts apply Rule 702, promoting more uniform standards for admitting expert evidence.
Practical Tips
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Vet Your Experts Thoroughly: Ensure that potential experts not only possess relevant credentials but also employ methodologies that can withstand rigorous judicial scrutiny.
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Prepare Detailed Methodological Explanations: Be ready to present comprehensive documentation and testimony that demonstrates how the expert’s methods meet the revised standards.
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Anticipate and Prepare for Daubert Challenges: Develop strategies to counter challenges to your expert’s qualifications, methods, and conclusions by preparing detailed responses grounded in the revised rule. As part of this process, go over the requirements very carefully with your experts and make sure that they're aware of what they have to prove. Some experts will push back, because they're experienced in Court and think that all you need to do is put them on autopilot. If they won't listen..get new experts.
Conclusion
Because the courts are still heavily backlogged from COVID, I expect that judges will aggressively look for ways to dismiss cases. Don't get beaten on the rules.
- Gene Killian