Working With Experts After Modifications to Rule 702
Last June, the Judicial Conference Committee on Rules of Practice and Procedure gave the green light to changes to some Federal Rules of Evidence, with one of these being Rule 702, the regulation concerning the acceptance of expert witness testimony. If the US Supreme Court and Congress give their approval, the amendment to Rule 702 will be set in motion by December 1, 2023.
To make things more explicit, US District Judge Patrick Schiltz of Minnesota, who is the chair of the Advisory Committee on Evidence Rules and a proponent of the amendment, proposed to amend Rule 702. He believes that many federal judges had been incorrectly understanding the present rule to mean that evidence could be accepted if a jury found it to be dependable, instead of the judge making the decision. Judge Schiltz pointed out, “This does not change the law whatsoever. It just makes it more transparent.” Based on comments obtained by the advisory committee, the plaintiff’s bar seems to be against the amendment because they think it is favoring the defense, while the defense bar appears to be in favor of it.
Rule 702 of the Federal Rules of Evidence, recently amended, is presented below. Changes to the original rule are set in italics, with the deleted language struck through.
Rule 702: Testimony of Specialists
Under Rule 702 of the Federal Rules of Evidence, testimony offered by expert witnesses can be allowed to be presented in a court of law. Such testimony is permitted if it is based on the witness’s specialized knowledge, is reliable and relevant to the case at hand.
An individual who is deemed to be knowledgeable, skilled, experienced, trained, or educated and is qualified as an expert may give testimony in the form of an opinion or on other matters if it is shown to the court that it is more probable than not that:
(a) The knowledge of an expert in the field of science, technology, or other areas of expertise can aid the court in understanding the evidence presented or in affirming a fact in dispute.
(b) the facts and data given in testimony are sufficient.
(c) the evidence is of dependable sources and processes;
(d) It can be confidently asserted that the opinion of the professional has been derived from appropriate principles and techniques about the situation at hand.
The Impact of the Modification of Rule 702 on the Allowing of Expert Verbal Evidence
The regulation has been changed to make it clear that expert testimony must be shown to be more probable than not to meet the criteria for admissibility set out in the regulation. The advisory committee stated that the ‘more likely than not’ criterion is equivalent to the ‘preponderance of the evidence’ which is the standard for most of the admissibility conditions in the evidence rules. Although Rule 702 does not directly incorporate a preponderance standard, some courts hold to this standard while others are more lenient, tending to favor admissibility.
It has become commonplace for Rule 702 of the Federal Rules of Evidence to be misused. This has led some federal judges to mistakenly assume that jurors can decide whether expert testimony should be admitted. In reality, the advisory committee has clarified that the court is responsible for determining admissibility under a preponderance standard.
To guarantee the admissibility of expert witness testimony in federal courts, the alteration to Rule 702 emphasizes that the testimony must be generated through reliable principles and methods, and must accurately reflect the application of these principles and methods to the facts of the case. This amendment seeks to do two things: specify the role of federal judges as gatekeepers who decide the admissibility of such testimony and to ensure uniform decision-making amongst the federal courts.
The Daubert standard, established by the US Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals Inc., is currently employed by trial judges to decide whether an expert witness’ testimony has a valid scientific foundation and is relevant to the facts at hand. The Rule 702 amendment will take its place.
Strategies for Recruiting a Professional under the Newly Established Regulation
In order to ensure success in the courtroom, here are five points to consider to maintain a good relationship with your expert and to make sure that their testimony is accepted under the new, more strict, Rule 702 amendment.
1. Analyze the Communicative Abilities of the Specialist
Under the new Rule 702, a greater degree of scrutiny is necessitated when selecting an expert, so advocates must think of new ways to evaluate the expert’s communication abilities before hiring them. Although technical proficiency is important when looking for an expert, the most successful experts are those with credibility and influence.
A graphic depicting Rule 702 of the Federal Rules of Evidence can be seen below.
Before you interview a potential expert, it’s important to be aware of what you’re searching for. Think not only about the facts and technical details of the issue, but also the personal qualities you’d like them to possess. You may even want to create a list of “soft skills” such as articulate, confident, precise, friendly, enthusiastic, persuasive, authoritative, etc. and assign each skill a value to take the guesswork out of evaluating their non-technical abilities.
2. Search for a Pro Who Is a Great Educator
In order to be an effective expert witness, it is necessary to be able to explain intricate details in a manner that is comprehensible for all parties in the courtroom. If the subject is particularly complicated, the witness should be a proficient storyteller, providing illustrations and comparisons to assist in teaching. Jurors rely on the expert to act as an instructor and elucidate the technical aspects in a way that makes sense.
It is important to remember that a professional should be able to collaborate with your visual design team to convert intricate legal ideas into persuasive, instructive visuals that convince and inform those in positions of power.
3. Preparation Is Essential for Expert Witnesses
Someone with a specialized set of skills must be well-informed of the regulations of Rule 702 and be aware of what is expected in addition to their technical expertise. It may be beneficial to collaborate with your expert to ascertain how they can communicate the reasons for their opinions to meet the court’s standards.
Experts who are the most influential try to win the trust of both the judge and jury by expressing their evidence with confidence, clarity, and believability. Certain experts may be tempted to utilize technical language and depend on their expertise to explain ideas to a jury. It is essential to remember that each person they are attempting to sway–whether in reports, depositions, or testimony–is not a professional.
Experts must practice ensuring that they don’t inadvertently talk above the jurors’ level or come across as condescending. To help keep the necessary balance, witnesses should be thoroughly prepared.
4. Bring on the Professional Right Away
Bringing in someone knowledgeable in the field during the early stages can lead to more successful results. Having an expert actively involved in the data and analysis will make their conclusions more reliable. Unfortunately, in some cases, an expert’s credibility can be undermined if they have not taken the time to evaluate the data or research themselves. This can occur when there is not enough time to prepare.
Be mindful that specialists may have an extensive timetable with their essential work and provide them adequate preparation time to assume responsibility for the examination and demonstrate authority when they are testifying.
5. Make Sure Your Professional Is Ready to Back Up the Reason for Their Viewpoint
Under the proposed amendment of Rule 702, the more-likely-than-not standard will become the standard in which the admissibility of expert testimony is determined. It is the responsibility of the individual introducing the evidence to demonstrate that it is reliable and valid, and this must be done by showing a preponderance of the evidence. Ultimately, the decision of admissibility lies in the discretion of the judge.
The responsibility of making the argument to the court is shared between the lawyer and the expert. For the attorney to successfully present the argument, they must gain an understanding of the concepts that the expert’s opinion is based on.
When it comes to expert testimony, Rule 702–in its amended form–requires a more stringent admissibility standard and stricter examination than some federal judges are accustomed to. An expert has to demonstrate to the court that their opinion is admissible, in addition to being clear and convincing for the jury.