The amendment to Federal Rule of Evidence 702 has created a fundamental shift in the way attorneys seek expert testimony for their matters. As courts raise the bar for expert witness qualifications and methodologies, legal professionals must modify their approach to retaining expert witnesses or risk having crucial testimony excluded. How can attorneys effectively navigate the new terrain of expert witness selection and preparation?
To address this pressing issue, we asked DOAR CEO Paul Neale, whose unique position as an experienced consulting and testifying expert and the leader of an expert witness agency offers valuable insight into this challenge. As the CEO of DOAR, Neale guides key DOAR initiatives in industries at high risk of litigation that are being heavily confronted by the implications of the FRE 702 amendment.
In this Q&A, Neale shares strategic advice on expert retention, discusses DOAR’s distinctive approach to consulting with attorneys and experts, and provides insights on safeguarding expert testimony admissibility. Neale’s perspectives detail the proactive measures attorneys can take to ensure their expert witnesses withstand greater judicial scrutiny.
DOAR: Given how the amendments to FRE 702 have reinforced the court’s gatekeeping role and clarified the strict requirements for admitting expert testimony, how should attorneys adjust their approach to retaining experts?
Neale: The changes to FRE 702 require lawyers to consider more factors than before in their retention of experts. The depth of an expert’s experience, the ability to communicate their expertise and opinions clearly and effectively, the need to explain their methodologies, and how their opinions relate to the facts of the case must all be considered before retention. Lawyers should develop a questionnaire or checklist of questions that allows them to uniformly and thoroughly vet an expert’s likely admissibility under 702.
DOAR: Rule 702 challenges and exclusions are expected to increase. What differentiates DOAR from other expert companies in its approach to consulting with attorneys and experts on cases?
Neale: First and foremost, DOAR’s testifying experts and lawyers have always understood and applied the key factors that make for a qualified, successful testifying expert. Not only have we had to overcome Daubert motions and judicial scrutiny ourselves, but we have also filed and defended motions to disqualify experts under FRE 702. Second, we are in the business of identifying, qualifying, and representing testifying experts. Our process for doing so, based largely on the requirements of FRE 702, is sound and unmatched. We only represent experts that we are confident can meet the 702 standards and can effectively connect with the triers-of-fact. Most other expert companies allow the candidates to self-qualify for expert roles and toss CVs out to clients, hoping one will stick.
DOAR: Considering recent cases like the NFL Sunday Ticket litigation, where expert testimony was excluded post-trial, what proactive measures can attorneys take to safeguard the admissibility of an expert’s testimony to avoid similar outcomes?
Neale: The investment of time and money in experts is often very significant, particularly in a case like the NFL Sunday Ticket litigation and the types of cases we typically handle. I think that there are instances where lawyers and/or their clients want to limit that investment and, therefore, fail to address one or more of the factors required under FRE 702. In the NFL case, it was obvious that the judge felt that the plaintiffs’ experts did not conduct a real-world analysis of the relevant market and, instead, created a hypothetical scenario to support their opinions.
It is counsel’s duty and obligation to ensure that the expert meets or exceeds each prong of the FRE 702 test. Lawyers should be specifically trained to understand FRE 702’s requirements and to properly manage the experts that they retain.
DOAR: Are there certain areas of expertise or types of matters where you believe expert testimony will be scrutinized more than others?
Obviously, all experts appearing in federal court are subject to Rule 702. However, as in the past, I believe financial experts such as economists and technical experts are most likely to be challenged for their methodology and their relevance to the particular issues in the case. Also, more novel areas of litigation, such as those involving cryptocurrency or artificial intelligence, will be especially challenging. This is true for any emerging technology or financial product.
DOAR: How do you foresee the evolving application of Rule 702 affecting the role and perception of expert witnesses in litigation over the next decade? How is DOAR adapting to these potential long-term changes?
I am not sure the changes to 702 will have a discernible effect on the impact of experts in litigation or the perception of the importance of testifying experts. However, as the application of 702 increases, the experts themselves will need to ensure that they are hireable and qualified to be an expert. As a result, accepting new engagements or being retained might be much more challenging. DOAR will continue to apply the high standards we have always required to those experts we represent and will closely follow 702’s evolution to make sure those standards remain at the highest level. Our business depends on the ability to get our experts retained and to have successful outcomes for our clients.
At DOAR, we represent leading independent experts from academia, industry, and government. We focus on industries dealing with complex matters involving advanced technologies and life sciences.
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