Updated Rules to Improve Expert Testimony

Experts are the superheroes of litigation, using their powers of expert qualification and testimony to point the jury towards a just outcome.   However, if those powers are unchecked, experts can lead juries astray with unreliable or irrelevant opinions.  Recent changes to the rules governing expert testimony aim to ensure that only reliable and relevant expert testimony is heard by juries. 

What is an Expert Witness?

An expert witness may be anyone who holds specialized knowledge or experience in a field or discipline. Expert witnesses are allowed to testify to their opinions within their specified realm of expertise, but not beyond.  Experts’ opinions can assist with (1) assessing the value of a case; (2) formulating claims, counterclaims, and defenses; (3) drafting discovery requests and responses; (4) reviewing documents; (5) challenging the other side’s experts; (6) developing and refining case strategy; (7) identifying, evaluating, and calculating damages; (8) evaluating and responding to opposing claims and theories; and (9) aiding the factfinder through trial testimony. 

While experts may have many different uses, under federal law they fall into two general categories: consulting experts and testifying experts. A consulting expert is retained by a party in anticipation of litigation or trial but will not testify at trial. A testifying expert may be used at trial to present evidence to a jury. 

Changes to Testifying Expert Requirements

Now that we have the basics down, how is a witness qualified as an ‘expert’ to testify during trial? Rule 702 in the Federal Rules of Evidence provides qualifying standards that must be met to admit an expert witness’s testimony.  Using these Rule 702 standards, a judge is to assess an expert’s qualifications and testimony to determine whether their testimony may be heard by a jury.

However, for years Rule 702 has been misapplied, and courts have permitted expert testimony without conducting a proper assessment.  This resulted in the presentation of unreliable testimony under the mistaken belief that the attorneys could expose the expert’s limitations and the jury could weigh the evidence accordingly.  

This practice should change on December 1, 2023, when an amendment to Rule 702 goes into effect.  Under the amendment, a judge must first determine if the expert testimony is admissible under the following standards:

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 has reliably applied the principles and methods to the facts of the case.

If the judge affirmatively responds to each element of the four-part test, the evidence may be admitted as expert opinion testimony. Then the other party can challenge the testimony and dissuade the jury from giving it weight.  The amendment has no effect on the jury’s existing role in weighing evidence. Hopefully, the amended Rule 702 will work as a better gatekeeper and prevent irrelevant and unreliable evidence going before juries. 

Connect with the Expert Witnesses your Case Needs

At Baker Jenner, we understand the important role expert witnesses have on the outcome of civil lawsuits. Our team has extensive knowledge about best practices in keeping another party’s unqualified expert testimony out and ensuring our expert testimony meets the standard. For that reason, we maintain a diverse network of experts who can offer testimony for any civil case. Let us help strengthen your case. Contact us with your needs. 

The following two tabs change content below.

Baker Jenner LLLP

Baker Jenner LLLP is a business solutions law firm. We partner with clients to achieve their goals while managing transactional, regulatory, and legal risks.

Latest posts by Baker Jenner LLLP (see all)