There is an adage that lawyers learn the version of the rules of evidence and procedure that are current when they are in law school and then do not look at them again. While that is (hopefully) an exaggeration, it is always worth noting when there are substantive changes to the rules. On December 1, 2023, such a change took place when three amendments to the Federal Rules of Evidence took effect.

The first amendment was to Federal Rule of Evidence 106. This Rule deals with the introduction of the remainder of a statement or related statements when a party only introduces a portion of a statement. The Rule was amended to make it clear that there can be no hearsay objection to admitting the remainder or related statement, if in fairness the remainder or related statement ought to be considered. This change was made because "[c]ourts have been in conflict over whether completing evidence properly required for completion under Rule 106 can be admitted over a hearsay objection.' Advisory Committee Note. In addition, the Rule was amended to make it clear that it covers all statements, including oral statements that have not been recorded and statements made through conduct or sign language.

The second amendment was to Federal Rule of Evidence 615. This Rule governs the exclusion of witnesses from the courtroom. The Rule was amended in two ways. First, the rule was changed to clarify that a court in entering an order under the Rule not only can physically exclude a witness from the courtroom, but also prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony. Second, the Rule was changed to make it clear that the exception from exclusion for the representative of corporate or other entities is limited to one designated representative per entity. However, the amendment still allows a court to exercise discretion to allow an entity-party to "swap" one representative for another as the trial progresses, so long as only one witness-representative is exempt at any one time.

The final, and perhaps most significant, amendment was to Federal Rule of Evidence 702, which governs the admission of expert testimony. The amended Rule now reads as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

  1. 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;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

While the Advisory Committee on Civil Rules has said that the changes to Federal Evidence Rule 702 are not intended to alter the law, they nevertheless are significant. It is a mantra in responding to a challenge to the admissibility of expert testimony to argue that the challenge "goes to the weight of the testimony and not its admissibility.' The Committee Notes explicitly state that "many courts have held that the critical questions of the sufficiency of an expert's basis, and the application of the expert's methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a)."

The Rule has been amended in two ways to address these concerns. First, the party seeking to introduce expert testimony has the burden to show that it is "more likely than not" that the proffered testimony meets the admissibility requirements in the Rule. "This is the preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules.' Advisory Committee Note. Under the correct application of the Rule, "once the court has found it more likely than not that the admissibility requirement has been met, any attack by the opponent will go only to the weight of the evidence.' Id.

Second, the expert's opinion must reflect a reliable application of the principles and methods to the facts of the case. Advisory Committee Note. While the Rule does not require "perfection" and does not allow a court to "nitpick an expert's opinion," it does require that "each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology." Advisory Committee Note.

There are few things potentially more damaging to a lawyer's credibility than citing to an outdated statute or rule. We should give ourselves an early holiday gift by staying current on the impact of these amendments.

Originally published December 20, 2023

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