AMDD: FRE 702 and Its Implication for Expert Witnesses

An amendment to the Federal Rules of Evidence 702 took effect on December 1, 2023. With regards to Rule 702, the amendment clarifies the protocol for expert testimony to be determined as admissible in court.

How Is Rule 702 Affected?

Rule 702 now allows testimony by an expert witness if the proponent demonstrates to the court that it is “more likely than not” that the proffered testimony meets the admissibility requirement set forth in the rule. Prior, Rule 702 has been widely misinterpreted which led some federal judges to believe its language to mean that jurors may determine the admissibility of expert testimony. The amendment to Rule 702 makes clear that admissibility requirements are to be determined by the court under the preponderance standard.

Additionally, the amendment emphasizes that an expert’s testimony must not only be the product of reliable principles and methods but must also reflect a reliable application of these principles and methods to the facts of the case. Clarifying that federal judges are obligated to act as gatekeepers to determine admissibility and promote uniform decision-making among federal courts as to the admissibility of expert testimony.

Supplanting The Daubert Standard

The amendment has replaced the Daubert Standard, which was used by trial judges to assess whether an expert witness’ testimony is based on scientifically valid reasoning that can be properly applied to the facts at issue. The Daubert Standard was set into motion in the US Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals Inc.

Evaluating Expert Witness Testimony Post Rule 702

Under the amended Rule 702, experts could receive closer scrutiny than before – thereby emphasizing the need to assess an expert’s technical and non-technical skills before hiring. Experts must also be able to distill complex information into comprehensible concepts, examples, analogies, or stories for the judge and jury. This way, testimony delivered to the jury remains clear, credible, and confident. It is imperative that experts also have enough lead time to dive into the data and analysis assessment to command believability and maintain their credibility.

The Peritia team is armed with capable expert witnesses experienced in providing testimony on complex national and international construction-related cases. Our hands-on approach means the experts who analyze your evidence are the same experts providing testimony in depositions, mediation, arbitration, and litigation. Contact us today if you are seeking expert testimony.

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