Amended Rule 702 - A Call to Action

June 23, 2023 02:44 PM

After eight years of deliberation, the Federal Rules Committee has unanimously approved amendments to Federal Rule of Evidence Rule 702 to correct two widespread judicial errors by which many federal courts have been abdicating their gatekeeping responsibility to protect jurors from unreliable expert testimony. Although not formally effective until December 1, 2023, these amendments are intended to clarify the proper application of the current Rule 702 and are already being relied upon in federal courts. 

The specific changes to the text of Rule 702 will (1) add the preponderance of evidence standard directly into the rule and (2) revise subpart (d) to require that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case” instead of “the expert has reliably applied the principles and methods to the facts of the case.” More generally, the amendments are aimed at countering decades of judicial recalcitrance to the proper application of the strict standards for admissibility of expert testimony that had been proscribed in the prior round of Rule 702 amendments in 2000. 

While these amendments mark a significant victory for the defense bar, there is considerable work still to be done. Following the last round of Rule 702 amendments, the defense bar lost focus and allowed the plaintiffs’ bar to carve away at protections against unreliable expert testimony. Simply stated, we cannot let this happen again. To cement and build on the new victory, we -- and most importantly our clients -- need your help.

To that end, the International Association of Defense Counsel is forming a new Standing Committee – the Rule 702 Sustainability Committee – that will be working in coordination with other defense groups to achieve the following goals:

  1. Judicial and practitioner education on the amended rule
  2. Amicus support
  3. Creating and populating a Rule 702 resource repository
  4. Parallel expert admissibility rulemaking efforts in state jurisdictions

Given the legal and geographic breadth of the challenge, we are calling upon outside counsel, in-house counsel, and insurance executives with both federal and state practices in all 50 states and the District of Columbia. Members of the Committee will be given resources and support to become the new faces of Rule 702 in their jurisdictions, in their practice areas, and for their clients. 

For more information, please contact Committee Chair Eric Lasker.

Back to news