As we approach the one-year mark since the December 2023 amendment to Federal Rule of Evidence 702, courts continue to refine their approach to expert testimony admissibility. While the amendment has prompted many legal teams to revise their expert selection and preparation strategies, firms working with rigorously vetted experts have found themselves well-positioned for this heightened scrutiny.
As an organization focused on expert witness selection and preparation since our founding, we’ve long believed that thorough vetting and documented expertise are fundamental to successful litigation outcomes. The amendments’ emphasis on qualification and reliability standards reinforces the approach we’ve advocated throughout our history of supporting complex litigation.
To better understand how the amendment is reshaping the way expert testimony is being handled, we contacted key stakeholders for their insights. From the perspectives of an attorney, expert liaison, and expert witness, these changes are prompting more thorough vetting and strategic planning in selecting experts for matters. These insights highlight not just how legal teams are adapting to the amendment, but why long-standing best practices in expert selection have become increasingly valuable.
Insights on the Impact of Rule 702 Updates
First, we asked Mark S. Sidoti, a Director at Gibbons P.C. in Manhattan, for his thoughts regarding expert selection in light of the FRE702 amendment:
Sidoti: While I have always looked to retain the most qualified experts in their respective fields, the changes to Rule 702 have led me to be even more thorough in my vetting process for testifying experts. Beyond the starting point of generalized top-shelf expertise and relatability to a judge or jury, the amended Rule requires the retention of experts with a granular focus on the case issues and closer attention to testable and supportable principles and methods. This approach is essential to presenting expert opinions that can withstand direct challenge and judicial gatekeeper scrutiny, well before the jury comes into play.
Next, we asked WIT Case Director, attorney, and expert liaison, Jeremy Scholem, to share his perspective on how the amendment has reinforced WIT’s approach:
Scholem: We have found that the amendment strongly supports our model of how to work with expert witnesses for two reasons. First, WIT has always emphasized the importance of methodological rigor through complementary expertise. For example, we regularly advocate for teams to include biostatisticians or other quantitative experts in support of primary experts in toxicology, medicine, and epidemiology. This approach adds substantial mathematical grounding for qualitative experts and has become even more valuable under the amendment’s heightened focus on methodological consistency.
Second, our focus on experts who combine academic and industry experience has become more important than ever since the amendment. While before we saw more interest from clients in the prestige of experts’ current affiliations or the close relevance of their publications, we now see a dramatic increase in clients asking for experts who have also spent time in the relevant industry for patent cases.
Finally, we asked WIT biotechnology expert and accomplished academic, Dr. Brenda Wilson, about the practical implications of the amendment:
Dr. Wilson: The new amendment to Rule 702 makes it a little more difficult to counter a challenge to a party’s expert by saying that any concerns about that expert’s qualifications or ability to provide sound and reliable testimony can be addressed during the trial through cross-examination. The amendment strengthens the need for the expert’s testimony to be reflected in the principles and methods used by the expert to assess the facts of the case and to formulate their opinions, which in turn can be discerned by the judge serving as gatekeeper. I think the outcome of this ruling will ensure that the credentials and testimony of the experts used in litigation trials are stronger and more reliable. In practice, I think there will likely be fewer proposed experts being allowed by judges to be retained for expert testimony. I also think that this will reduce the amount of court time for trial proceedings by eliminating the cross-examination time spent by the opposition to discredit an expert’s testimony.
Expert Considerations in the Face of FRE 702
To navigate the new standards set by the amendment to Rule 702, attorneys must be strategic and meticulous in selecting expert witnesses. The changes emphasize not only the qualifications of the expert but also the reliability of their methodologies and the ability to communicate complex topics clearly. Here are four key considerations attorneys should keep in mind when retaining expert witnesses to ensure their testimony is robust, reliable, and admissible under the revised rule.
- Retain the Right Experts to Prove Methodology Reliability: Attorneys must ensure that the expert’s methodology is not only reliable but can be proven by a preponderance of the evidence. The expert should clearly explain how their methods are more likely than not reliable, demonstrating a strong scientific or technical foundation. Too often, law firms relegate finding experts to “search” firms who send over a stack of CVs with the expectation of finding an expert who is “good enough” for a case. Not only is that inefficient, but also problematic. It can create challenges to the reliability of expert testimony if experts are not adequately evaluated.
- Work with an Expert Early in the Litigation Process to Align Methodology with Case Facts: The expert’s methods must be reliably applied to the specific facts of the case. Attorneys should confirm that the expert can directly connect their analysis and conclusions to the unique circumstances of the litigation. With so much at stake, attorneys should pay attention to the quality of experts they retain and put their trust in a company with highly credentialed academics, industry insiders, and legal professionals who know the challenges of litigation and what it takes to be a successful expert witness.
- Anticipate Daubert Challenges: With the recent changes to Rule 702, attorneys need to adapt their approach to Daubert challenges, anticipating that expert qualifications may be scrutinized earlier and directly before the judge, rather than waiting for jury examination. The revised standards require a proactive strategy, where attorneys not only assess the expert’s credentials and methodologies early on but also stay informed about how specific courts and judges handle expert qualification challenges. Engaging with trial consulting services that provide early and thorough evaluations—such as detailed reviews, mock cross-examinations, and feedback on presentation style—can be instrumental. This preparation ensures the expert’s testimony is both credible and strategically aligned with the revised admissibility criteria, reducing vulnerabilities and increasing the likelihood of favorable rulings on expert admissibility.
- Ensure Transparent and Clear Communication: Under the amended Rule 702 standards, experts must be able to clearly and effectively convey their methodologies, not only for the jury but also for judges who are likely to scrutinize their testimony earlier in the case. Attorneys should collaborate with experts to ensure their explanations are accessible, avoiding unnecessary jargon without compromising technical precision. Partnering with agencies that prioritize experts skilled in clear communication can make a significant difference, as it allows experts to articulate complex methods in digestible terms. This approach bolsters the expert’s credibility and ensures their testimony resonates with both judges and juries, meeting the revised standards with a stronger impact in court.
Early applications of the amended Rule 702 show varying interpretations across jurisdictions, with some courts demanding rigorous documentation of expert methodology while others view the updates as a clarification of existing standards. Litigation teams should actively monitor how their key jurisdictions are applying the amended rule, as these variations can significantly impact everything from expert selection and preparation to venue strategy and the timing of Daubert challenges.
At WIT, we represent leading independent experts from academia, industry, and government. We focus on industries dealing with complex matters involving advanced technologies and life sciences. Contact us to learn more about our expert teams.
For more insights on the implications of changes to Rule 702, check out our Q&A with WIT CEO Paul Neale to get strategic advice on expert retention, information on WIT’s distinctive approach to consulting with attorneys and experts, and insights on safeguarding expert testimony admissibility.