By Lee Mickus, a partner in the Denver, CO office of Evans Fears Schuttert McNulty Mickus LLP. Mr. Mickus is also Co-Chair of the Rule 702 committee for Lawyers for Civil Justice. In that capacity he has written articles, given presentations to judges and attorneys, and provided comments and testimony to the Advisory Committee on Evidence Rules during the rulemaking process that led to the 2023 amendments.
Summary
Amended Federal Rule of Evidence 702 has been in place for a full year. Decisions applying the new rule show how the courts have adjusted course to account for the changes. Ten themes signaling recognition of the corrective purposes of the amendment have emerged:
- The amendment mandates a different and more rigorous approach to gatekeeping.
- The extensive advisory committee note provides useful guidance on how courts should apply Rule 702.
- Courts need to be suspicious of pre-amendment caselaw.
- The rule itself provides the roadmap of what the court must determine.
- Courts have an ongoing responsibility to monitor experts’ opinion testimony and ensure it stays within the methodology’s limits.
- The sufficiency of an expert’s factual basis for the opinions expressed is a matter of admissibility for the court to determine.
- The expert’s methodological application to the facts of the case is an admissibility issue that the court must decide.
- There is no presumption that an expert’s opinions should be found admissible.
- The preponderance of proof standard is a real burden that the proponent must carry.
- The integrity of jury trials depends on probing judicial gatekeeping.
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