Practitioners Should Be Aware of Amendments to FRE 702

Federal Rule of Evidence 702—"Testimony by Expert Witnesses”—has new amendments set to take effect on December 1, 2023. The chief justice submitted the amendments to Congress on April 24, 2023, and Congress has taken no action to disapprove the amendments. The reasons for the amendments to Rule 702 are set forth in the May 15, 2022, Memorandum of the Report of the Advisory Committee on Evidence Rule and in the comments on the 2023 amendment.

Practitioners should review the amendments and comments to Rule 702 and certainly be aware that under the amendment, three requirements of Rule 702(a), (b), and (c) must be demonstrated by a preponderance of the evidence, the “more likely than not” rule, before expert testimony is admissible. Also, that the expert’s opinion under Rule 702(d) reflects “a reliable application of the principles and methods to the facts of the case.”