New Study Supports Federal Expert Evidence Rule Reform
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A new study conducted by Lawyers for Civil Justice (LCJ) reveals that federal courts inconsistently apply Federal Rule of Evidence 702 when evaluating the admissibility of expert evidence. The study examined every federal case decided in 2020 in which a judge admitted, excluded, or partially admitted expert testimony under Rule 702—over 1,000 cases. The research focused on various objective factors, including whether the judge articulated the correct standard for admissibility as provided by the Federal Rules of Evidence. Rules 702 and 104(a) require the proponent of expert testimony to establish its admissibility by a preponderance of the evidence.
The research revealed that federal courts are split over whether to apply the preponderance standard when assessing the admissibility of expert testimony under Rule 702. This split covers every federal circuit and at least 57 of the 93 federal judicial districts. In one judicial district (the Southern District of New York), conflict even arose between two judges assigned to the same case—one judge articulated the preponderance standard in deciding expert motions while the other did not.
In more than two-thirds of the cases studied, the trial judge did not mention the preponderance standard.
In about 13% of the cases, the judge described the analysis under Rule 702 as having a “liberal thrust,” employed a “liberal policy favoring admission,” or stated that “exclusion is the exception rather than the rule”—contrary to the requirement of Rules 702 and 104(a).
Courts in a number of cases required both a showing of admissibility by a preponderance of the evidence and a presumption favoring admission. This is a remarkable finding given that these standards are inconsistent with each other. This indicates that some federal courts are confused about the correct standard to apply, or even what the different standards mean.
The federal judiciary’s Advisory Committee on Evidence Rules has published proposed amendments to Rule 702 that would “clarify and emphasize that the admissibility requirement set forth in the rule must be established to the court by a preponderance of the evidence.”
Public comments on the proposed amendments can be submitted electronically not later than February 16, 2022. The Advisory Committee will hold a public hearing virtually on January 21, 2022. Individuals wishing to present testimony must notify the office of Rules Committee Staff by email ([email protected]) at least 30 days before the scheduled hearing.
Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
Mark Behrens co-chairs Shook's Washington, DC-based Public Policy Practice Group and is a leading national expert on civil justice issues with over thirty years of experience. A substantial part of his practice is working to improve the civil litigation environment through state and federal legislation; in the courts through amicus curiae briefs; through legal scholarship and judicial education; and in the court of public opinion.
Mark is actively involved in civil justice reform efforts at the federal and state levels. He has testified before the U.S. Congress and most state legislatures on behalf of business and civil justice organizations. Mark also has an active amicus brief practice specializing in tort liability and civil justice issues. He has authored or co-authored over 150 amicus briefs in cases before the United States Supreme Court and federal and state appellate courts on behalf of business, civil justice, and defense lawyer organizations. In addition, Mark routinely files comments on behalf of business, civil justice, and defense lawyer organizations regarding potential changes to federal and state court rules. He chairs the International Association of Defense Counsel’s (IADC) Civil Justice Response Committee and serves on the Board of Directors of Lawyers for Civil Justice (LCJ).
Mark is a member of the American Law Institute (ALI). He received his J.D. in 1990 from Vanderbilt University Law School, where he was a member of the Vanderbilt Law Review. He received his B.A. in economics from the University of Wisconsin in 1987.
Assistant Solicitor General, Texas
Katie serves as an Assistant Solicitor General for the State of Texas. She previously practiced law at a firm in Washington, D.C. where she focused her legal practice on complex trial and appellate litigation, specializing in data privacy and biometric issues. Before that, Katie served as Chief Counsel to Senator Jeff Flake at the U.S. Senate Judiciary Committee and clerked for Judge Michael B. Brennan of the U.S. Court of Appeals for the Seventh Circuit. Katie graduated from Liberty University and the Antonin Scalia Law School at George Mason University. She is a member of The Federalist Society’s Litigation Practice Group Executive Committee.