Expert witness testimony admissibility disputes in court are an inherent possibility. Rule 702 is the base standard for testimony scrutiny, so plaintiff and defendant attorneys should clearly understand its criteria and nuances to suitably apply it to build their case, counter the opposition, or challenge incorrect applications of the rule.

Let us explore how to effectively use Federal Rule of Evidence 702 in litigation involving schools and other child—and youth-oriented organizations. We will discuss its amendment, an example of misapplication, and how to cite the Rule and strong precedents.

What’s New in Rule 702?

Following Rule 702’s amendment on December 1, 2023, attorneys should anticipate more arduous admissibility procedures as courts intensify their commitment to their gatekeeping duties. The amendment was meant to fix years of improper Federal Rule of Evidence 702 applications by courts and litigants. Several studies have found missteps, including leniency, inconsistencies, inadequate gatekeeping, and randomness of decisions. For example, the Lawyers for Civil Justice (LCJ), in a 2020 review of 1059 federal trial court opinions on Rule 702 motions, found that 65% did not cite the “preponderance of evidence” standard; others use it alongside a “liberal thrust’ approach, while some judicial districts were torn on whether to apply it or not.

The amendment underscores the judge’s “gatekeeper” role of admitting only relevant and reliable testimony. It is also intended to prevent overstatement of opinions and any unfair attempts to influence the jury. In light of this, attorneys can encourage courts to apply the Federal Rule of Evidence 702 correctly. Furthermore, they should be vigilant in spotting exaggeration and weak methodology in the opposition expert witness’s testimony.

However, they, too, must anticipate such hurdles through thoroughly vetting their expert and testimony content to avoid missteps.

Testimony Relevance and Reliability

In school liability cases, testimony proponents have the burden of establishing to the court by a “preponderance of evidence” as per Rule 104 (a) that their opinion meets the four relevance and reliability criteria of the Federal Rule of Evidence 702, which are:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods and
(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Failure to meet any criteria risks excluding the entire testimony and Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843 (9th Cir. 2014) is an example of the Federal Rule of Evidence 702 violation consequences. In this case, a school district was sued for Title IX sexual discrimination and retaliation claims and required to pay injunctive relief to the plaintiffs. The district court excluded two defendant expert witnesses’ testimony on various grounds. Firstly, the court noted that their conclusions and opinions violated the Federal Rule of Evidence 702 as they were based on “personal opinions and speculation” rather than on a systematic evaluation of athletic facilities and programs at the school in question. Secondly, their methodology was “not at all clear.” Some elements of their testimonies’ weaknesses, as noted by the appellate court, include superficial inspection of athletic facilities, no photographs or measurements, failure to speak with anyone during the inspection at the school, and speculated inferior fundraising and accounting activities by the team.

In that regard, they failed to satisfy criteria (b) to (d) of Federal Rule of Evidence 702. Expert witnesses should conduct comprehensive case analysis and extensive, independent research, leverage sufficient facts and data sources, and ensure their testimony has a reliable basis in the knowledge and experience of their specialty.

Expert Witness Qualification

Rule 702 provides that to testify, an expert witness can be qualified by knowledge, skill, experience, training, or education. Nonetheless, it is not uncommon to find cases where more specialized qualifications are prioritized over general industry experience. In our earlier Federal Rule of Evidence 702 example case, the district noted that experience with the non-relevant issue of school finance did not qualify one of the defendant experts to offer opinions on Title IX compliance. The appellate court acknowledged the district courts’ legal discretions in admitting or excluding evidence, citing, “It is well settled that bare qualifications alone cannot establish the admissibility of … expert testimony.”

To streamline admissibility procedures, attorneys should be proactive in ensuring their experts’ qualifications and testimony can withstand scrutiny using the Federal Rule of Evidence 702 and the rigorous Daubert Standard factors and court discretions. A strongly qualified expert in education-related cases would have:

• The proper education (Ed.D) and training
• Direct and sufficient experience with the litigation matter
• Acted in the capacity of a relevant school personnel
• Have a robust knowledge of the particular professional standard of care governing the matter they intend to testify to, as well as all pertinent laws, regulations, and other guidelines.

Such an expert could prepare a focused and reliable testimony, adding credibility to an attorney’s case.

How to Cite Federal Rule of Evidence 702

Regarding Rule 702’s amendment, attorneys and experts should be wary of citing precedent cases that incorrectly applied the rule. This can easily give the opposition reasonable grounds for challenging their evidence.

Additionally, when citing it in reports, briefs, and other uses, they should use the uniform citation of Fed. R. Evid. 702, when prioritizing a short-form citation, in accordance with recognized legal references like The Bluebook.

SUMMARY

Attorneys should prioritize expert qualifications and testimony content that can withstand stricter scrutiny and gatekeeping practices in accordance with the Federal Rule of Evidence 702 requirements and nuances and, better still, the Daubert vs. Frye Standards. They should ensure relevant and reliable testimony that reasonably meets the “preponderance of evidence” standard. This will help them strengthen their argument or effectively challenge weak testimonies.

Engage a Competent Expert Witness Team For Your Case

At School Liability Expert Group, our highly praised expert witness services to plaintiff and defendant attorneys include trial and deposition testimonies firmly in line with Federal Rule of Evidence 702 and more rigorous standards. Our court-qualified experts possess excellent education, undergo continuous training, and have diversified field experience. We are in a position to assist you with any litigation involving liability issues in schools and other child—and youth-oriented organizations. Book a call today to discuss your case with our experts.