Last month, the Advisory Committee on Evidence of the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure voted to unanimously to recommend certain amendments to Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.  This vote signals imminent changes that could significantly affect federal practitioners’ requirements to demonstrate their experts’ reliability.

During trial, lawyers make many strategic decisions to try to appeal to a jury.  For example, they consider not only the substance of the evidence they present, but also the emotional impact of that evidence.  But the impact of a witness’ testimony can be blunted if your jury is not following the testimony, so the use of demonstrative exhibits can be a useful tool to ensure the jury remains focused on the testimony.

Basic Test

Why stop at excluding expert testimony when you can exclude the expert? For years, expert witness conflicts doctrine has been developed through the federal common law. Although appellate courts have been relatively silent on the issue, trial courts regularly strike experts that have received confidential information from the opposing party. Courts generally disqualify expert witnesses when a prior relationship resulted in access to an adverse party’s confidential information, and that information could harm that party’s interests in the present case. Whether an expert has an impermissible conflict is generally determined by a two prong test: (1) did the party claiming a conflict reasonably believe they had a confidential relationship with the expert, and (2) did that party give the expert relevant confidential information. Wang Labs., Inc. v. Toshiba Corp. In addition to these two factors, some courts will also consider fundamental fairness and prejudice resulting from disqualification or the denial of disqualification.  See e.g. Veazey v. Hubbard.