# How Did the 2023 Amendment to Rule 702 Affect Litigation Strategy? ▴ Question

**Published:** 2025-08-13
**Categories:** Question

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## Concept

The 2023 amendment to Federal Rule of Evidence 702 represents a significant recalibration of the standards governing the admissibility of [expert testimony](https://prime.greeks.live/area/expert-testimony/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite) in federal courts. Effective December 1, 2023, the changes address what the advisory committee identified as a widespread misapplication of the existing rule by many courts. This has profound implications for how litigation strategies are developed and executed, particularly in cases that turn on complex scientific, technical, or other specialized knowledge. The amendment is designed to fortify the trial judge’s role as a gatekeeper, ensuring that only reliable and appropriately bounded expert opinions reach the jury.

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## The Genesis of the Amendment

The 2023 changes did not emerge from a vacuum. They are the culmination of a long-running dialogue about the proper application of the standards set forth in the landmark “Daubert trilogy” of Supreme Court cases. These cases established the trial court’s [gatekeeping function](https://prime.greeks.live/area/gatekeeping-function/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite) to exclude unreliable expert testimony. A 2000 amendment to [Rule 702](https://prime.greeks.live/area/rule-702/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite) codified these holdings, yet in the subsequent two decades, a divergence in practice emerged.

Many federal courts adopted a posture that was perceived as overly permissive, often treating the reliability of an expert’s methodology and its application to the facts as matters of weight for the jury to consider, rather than as questions of admissibility for the judge to decide. The 2023 amendment seeks to correct this drift, re-emphasizing the originally intended rigor of the rule.

> The amendment was not a change in the law, but a clarification designed to curb the “presumption of admissibility” that had taken root in some jurisdictions.

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## The Two Pillars of the 2023 Amendment

The revised Rule 702 introduces two critical clarifications that are central to its impact on [litigation strategy](https://prime.greeks.live/area/litigation-strategy/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite):

- **The [Preponderance of the Evidence](https://prime.greeks.live/area/preponderance-of-the-evidence/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite) Standard** ▴ The rule now explicitly states that the proponent of the expert testimony must demonstrate “to the court that it is more likely than not that” the admissibility requirements are met. This codifies the “preponderance of the evidence” standard for the admissibility of expert testimony, leaving no room for ambiguity. It places a clear and affirmative burden on the party seeking to introduce the expert, dispelling any notion of a “liberal” standard or a presumption of admissibility.

- **The Prohibition on Overstatement** ▴ The amendment revises subsection (d) to require that the “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” This language is aimed squarely at the problem of experts who overstate their conclusions, offering opinions with a degree of certainty that [their methodology](https://prime.greeks.live/question/how-can-an-attorney-effectively-cross-examine-a-valuation-expert-on-their-methodology/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite) cannot sustain. It compels a tighter fit between the expert’s basis, their methodology, and the ultimate opinion presented in court.

These changes collectively signal a move toward a more exacting standard for the admissibility of expert testimony. They empower judges to more aggressively scrutinize the underpinnings of an expert’s opinion and provide litigants with a more robust framework for challenging questionable testimony before it can influence a jury.

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## Strategy

The 2023 amendment to Rule 702 necessitates a strategic recalibration for litigators. The days of treating expert admissibility as a pro forma exercise are over. The amended rule provides a powerful tool for litigants to challenge weak or overstated expert testimony, and it requires a more meticulous approach from those seeking to introduce such testimony. A successful litigation strategy in this new landscape will be proactive, rigorous, and deeply informed by the nuances of the amended rule.

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## Shifting the Focus to Admissibility

A primary strategic shift is the elevated importance of the admissibility hearing itself. Litigators should no longer view this as a preliminary hurdle, but as a dispositive battleground. The amendment’s clear “preponderance of the evidence” standard invites a more robust and evidence-based challenge to an opposing expert’s qualifications, methodology, and conclusions.

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## Key Strategic Considerations for Challenging Expert Testimony

- **Early and Targeted Discovery** ▴ Discovery efforts must be aimed at unearthing the specific facts, data, and methods underlying the expert’s opinion. This includes a deep dive into the expert’s qualifications, prior testimony, and any potential biases.

- **The “More Likely Than Not” Burden** ▴ Challenges to expert testimony should be framed around the proponent’s failure to meet the “more likely than not” burden for each of the rule’s requirements. This is a powerful framing device that puts the onus squarely on the opposing party.

- **Focus on “Fit”** ▴ A key avenue of attack is the “fit” between the expert’s methodology and the conclusions drawn. The amendment’s emphasis on preventing overstatement opens the door to challenges that an expert’s opinion is not a “reliable application” of their methods to the specific facts of the case.

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## Selecting and Preparing Your Own Experts

The amended rule also places a greater burden on proponents of expert testimony. A successful strategy requires a more rigorous approach to selecting and preparing one’s own experts.

The following table outlines some key considerations:

### Expert Selection and Preparation under Amended Rule 702

| Consideration | Strategic Imperative |
| --- | --- |
| Methodological Rigor | Ensure the expert’s methodology is sound, well-documented, and capable of withstanding scrutiny. The expert must be able to articulate and defend their methods clearly and persuasively. |
| Avoiding Overstatement | Work with the expert to ensure their opinions are carefully calibrated to what their methodology can support. Avoid assertions of absolute certainty, particularly in fields with a subjective component. |
| The “Preponderance” Burden | Prepare the expert to affirmatively demonstrate that their testimony meets the “more likely than not” standard of admissibility. This includes being prepared to defend their qualifications, the sufficiency of their data, and the reliability of their methods. |

> The amendment effectively raises the bar for all expert testimony, demanding a more disciplined and evidence-based approach from all parties.

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## The Impact on Settlement Negotiations

The strengthened gatekeeping function of Rule 702 can also have a significant impact on settlement negotiations. A successful challenge to a key expert can dramatically alter the leverage at the negotiating table. Conversely, the knowledge that one’s own expert is likely to withstand a rigorous admissibility challenge can provide a significant advantage.

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## Execution

Executing a litigation strategy that leverages the 2023 amendment to Rule 702 requires a granular and disciplined approach. It is about translating the strategic imperatives of the amended rule into concrete actions at every stage of the litigation process. From the initial pleadings to the final pretrial motions, the specter of a rigorous admissibility challenge should inform every decision.

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## The Daubert Motion in a Post-Amendment World

The [Daubert motion](https://prime.greeks.live/question/what-is-the-impact-of-a-successful-daubert-motion-on-the-outcome-of-a-case/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite), the primary vehicle for challenging the admissibility of expert testimony, takes on a new significance under the amended rule. A successful Daubert motion is no longer a long shot, but a realistic and potentially case-dispositive objective.

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## Executing a Winning Daubert Motion

- **A Multi-Pronged Attack** ▴ The motion should address each of the requirements of Rule 702, methodically demonstrating why the proponent cannot meet their “more likely than not” burden for each element.

- **The Power of the “Overstatement” Argument** ▴ The prohibition on overstatement is a particularly potent weapon. The motion should meticulously deconstruct the expert’s opinion, showing how it extends beyond the reliable application of their methodology.

- **Leveraging the Advisory Committee Notes** ▴ The Advisory Committee Notes to the 2023 amendment are a powerful source of authority. They explicitly state the amendment’s purpose to correct judicial misapplication of the rule. Quoting these notes can be highly persuasive to a court.

The following table provides a sample structure for a post-amendment Daubert motion:

### Post-Amendment Daubert Motion Structure

| Section | Content |
| --- | --- |
| Introduction | State clearly that the proponent of the expert testimony has failed to meet their burden under the amended Rule 702. |
| The “More Likely Than Not” Standard | Explain the significance of the “preponderance of the evidence” standard and how it applies to the present case. |
| Failure to Establish Reliability | Attack the expert’s methodology, demonstrating its flaws and why it cannot be considered reliable. |
| The Overstatement of Conclusions | Show how the expert’s opinion is an unreliable application of their methodology to the facts of the case, highlighting any instances of overstatement or unsupported certainty. |
| Conclusion | Summarize the arguments and request that the court exclude the expert’s testimony. |

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## The Role of the Expert in Execution

The [expert witness](https://prime.greeks.live/area/expert-witness/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite) is a critical partner in executing a successful litigation strategy under the amended Rule 702. They must be prepared for a more rigorous and adversarial admissibility process.

> The amendment places a premium on experts who can not only articulate their opinions clearly, but also defend the underlying methodology with precision and confidence.

Proponents of expert testimony must work closely with their experts to ensure they are prepared for the heightened scrutiny of a Daubert hearing. This includes conducting mock cross-examinations, stress-testing the expert’s methodology, and ensuring that their final report and testimony are carefully calibrated to avoid any hint of overstatement.

The 2023 amendment to Rule 702 has reshaped the landscape of expert testimony in federal court. By understanding its nuances and executing a strategy that leverages its heightened standards, litigators can gain a significant advantage in the courtroom.

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## References

- Behrens, Mark A. and Andrew J. Trask. “Federal Rule of Evidence 702 ▴ A History and Guide to the 2023 Amendments Governing Expert Evidence.” _Texas A&M Law Review_, vol. 12, no. 1, 2024, pp. 1-49.

- Bernstein, David E. and Eric G. Lasker. “A Brief Guide to the 2023 Amendments to the Federal Rules of Evidence.” _The Federalist Society_, 30 Jan. 2024.

- Gore, Michael, and Anna Rotrosen. “Noted with Interest ▴ Amendment to Federal Rule of Evidence 702, a Year in Review.” _Quinn Emanuel Urquhart & Sullivan, LLP_, 29 July 2024.

- Mickus, Lee. “Federal Rule of Evidence 702 ▴ A Practitioner’s Guide to Understanding the 2023 Amendments.” _Washington Legal Foundation_, 23 June 2024.

- “An Amendment to Federal Rule of Evidence 702 Has Gone Into Effect in the U.S.” _Mayer Brown_, 5 Dec. 2023.

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## Reflection

The refinement of Rule 702 is a component in the larger system of judicial administration. Its effective implementation depends on the diligence of both the bench and the bar. For litigators, the amendment presents an opportunity to re-evaluate their approach to expert testimony, moving from a mindset of mere compliance to one of strategic advantage.

The ultimate goal is a more reliable and just outcome, and the amended Rule 702 is a critical tool in achieving that objective. The principles of clarity, reliability, and intellectual honesty that underpin the amendment have applications that extend far beyond the courtroom, serving as a model for reasoned decision-making in any complex domain.

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## Glossary

<a href="https://prime.greeks.live/area/expert-testimony/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
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## Expert Testimony

Meaning ▴ Expert testimony refers to the presentation of specialized knowledge, analysis, or opinion by a qualified individual within legal, regulatory, or arbitral proceedings. </a><a href="https://prime.greeks.live/area/gatekeeping-function/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
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## Gatekeeping Function

Meaning ▴ The Gatekeeping Function is a systemic control mechanism engineered to validate and authorize incoming order flow against a predefined set of eligibility criteria and risk parameters prior to execution. </a><a href="https://prime.greeks.live/area/rule-702/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
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## Rule 702

Meaning ▴ Rule 702 defines a core algorithmic directive within the institutional Prime Operating System, specifically governing the execution methodology for large-value digital asset derivative orders to manage market impact and optimize fill probability. </a><a href="https://prime.greeks.live/area/litigation-strategy/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
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## Litigation Strategy

Meaning ▴ A Litigation Strategy represents a pre-defined, structured framework for managing and resolving legal disputes that arise within the operational context of institutional digital asset derivatives trading. </a><a href="https://prime.greeks.live/area/preponderance-of-the-evidence/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
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## Preponderance of the Evidence

Meaning ▴ The term "Preponderance of the Evidence" defines a probabilistic threshold for automated systemic decision-making in institutional digital asset derivatives. </a><a href="https://prime.greeks.live/question/how-can-an-attorney-effectively-cross-examine-a-valuation-expert-on-their-methodology/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
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## Their Methodology

A valuation is a system of assumptions; an effective cross-examination is the process of auditing that system for its weakest points. </a><a href="https://prime.greeks.live/question/what-is-the-impact-of-a-successful-daubert-motion-on-the-outcome-of-a-case/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
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## Daubert Motion

A successful Daubert motion removes flawed expert testimony, collapsing the opposing case structure and forcing a favorable outcome. </a><a href="https://prime.greeks.live/area/expert-witness/?utm_source=options.greeks.live&utm_medium=referral&utm_campaign=satellite" class="glossary-item-box">
![A sleek metallic device with a central translucent sphere and dual sharp probes. This symbolizes an institutional-grade intelligence layer, driving high-fidelity execution for digital asset derivatives](https://options.greeks.live/wp-content/uploads/2025/07/institutional-digital-asset-derivatives-rfq-execution-platform-precision.jpg)

## Expert Witness

Meaning ▴ An Expert Witness functions as a specialized informational module within a legal or regulatory framework, tasked with providing objective, data-driven analysis and interpretation on complex technical or financial matters. </a>

**Tags:** [Litigation Strategy](https://options.greeks.live/area/litigation-strategy/), [Rule 702](https://options.greeks.live/area/rule-702/), [Preponderance of the Evidence](https://options.greeks.live/area/preponderance-of-the-evidence/), [Overstatement of Conclusions](https://options.greeks.live/area/overstatement-of-conclusions/), [Expert Witness](https://options.greeks.live/area/expert-witness/), [Gatekeeping Function](https://options.greeks.live/area/gatekeeping-function/)	

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An independent expert's role in a valuation challenge is to provide an objective, defensible, and transparent opinion of value.

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The Daubert standard mandates judicial gatekeeping of scientific reliability, while Frye defers to general acceptance within the expert community.

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The best practice for disclosing an expert's prior appointments is a meticulous, strategic process of verification and presentation.

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The Frye test gauges admissibility on general acceptance by scientific peers, while the Daubert standard tasks judges to vet expert testimony for reliability and relevance.

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An expert witness in a Level 3 valuation dispute provides an objective, defensible framework for valuing illiquid assets.

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The fair value hierarchy dictates the intensity of discovery, with Level 3's subjectivity inviting forensic scrutiny of valuation models.

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Financial expert testimony is most often excluded when its methodology is deemed unreliable under the rigorous gatekeeping standards of FRE 702 and Daubert.

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The Daubert standard mandates that economic testimony be validated for methodological reliability, acting as a gatekeeper for its admissibility.

- 
### [In What Ways Did Kumho Tire Co V Carmichael Reshape the Role of Trial Judges?](https://options.greeks.live/question/in-what-ways-did-kumho-tire-co-v-carmichael-reshape-the-role-of-trial-judges/)
![An abstract, precision-engineered mechanism showcases polished chrome components connecting a blue base, cream panel, and a teal display with numerical data. This symbolizes an institutional-grade RFQ protocol for digital asset derivatives, ensuring high-fidelity execution, price discovery, multi-leg spread processing, and atomic settlement within a Prime RFQ.](https://options.greeks.live/wp-content/uploads/2025/07/institutional-digital-asset-derivatives-rfq-protocol-precision-execution-1.jpg)

Kumho Tire v. Carmichael expanded the trial judge's gatekeeping role to ensure the reliability of all expert testimony, not just scientific.

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---

**Original URL:** https://options.greeks.live/question/how-did-the-2023-amendment-to-rule-702-affect-litigation-strategy/
