It’s more than just semantics. The use of “Daubert” instead of “Rule 702” affects people’s understanding of what standards apply to the admission of expert evidence. The widespread misunderstanding of expert evidence admissibility standards in both trial and appellate courts within every federal circuit has led to decisions that are patently incompatible with Rule 702 – namely, the erroneous notion that fundamental questions about the basis of expert opinions go to the weight given to the testimony by the jury, rather than its admissibility by the court.

  • While high-quality, reliable science has resulted in most Americans having a positive view of science, only about four-in-ten Americans are classified as having “high science knowledge” according to the Pew Research Center.
  • Disinformation and conspiracy theories have permeated our society – especially since the outbreak of the COVID-19 pandemic. These trends make it tougher for many people – including jurors – to distinguish reliable science from unproven theories, a problem exacerbated by the fact that most people are not experts in science, or knowledgeable about the methods or standards scientists use to evaluate studies.
  • Much like it does everyday life, science also plays an essential role in our courtrooms, where juries are asked to determine science-based causation and other questions in order to determine liability in hundreds of thousands of cases where millions — or even billions — of dollars can be on the line.
  • Unfortunately, the quality and reliability of science admitted by courts is inconsistent and often deviates from the intent of Rule 702. Federal and state rules are meant to ensure quality and consistency in the science that is admitted in court cases, but those rules need to be updated and strengthened so judges properly perform their gatekeeping roles and keep unreliable or junk science out of America’s courts. 

A data analysis conducted by LCJ found that many federal judges appy the incorrect standard.

  • Out of the 1,059 federal decisions involving the application of Rule 702 in 2020, judges failed to cite the correct standard mandated by the rule in 882 instances, according to data from LCJ.
  • Some judges have asserted that Rule 702 is interpreted as having a “liberal thrust” towards admissibility, when in fact the rule requires the profferor to demonstrate admissibility by a preponderance.
  • In other cases, expert witnesses have been allowed to present juries with conclusions lacking any basis in fact or reliable methods properly applied, or is outside of their expertise and/or the scope of their expert report.


  • The amendment will clarify:
    • The court must decide admissibility employing Rule 702’s standards;
    • The proponent of expert testimony must establish its admissibility to the court by a preponderance of the evidence; and
    • The court’s gatekeeping responsibility is ongoing—the decision to admit testimony does not allow the expert to offer an opinion that is not grounded in Rule 702’s standards.


  • The Judicial Conference is the judicial body responsible for promulgating rules and amendments to procedural rules, pursuant to the Rules Enabling Act. In this case, the Conference’s Committee on Rules of Practice and Procedure led efforts to reform Rule 702.
  • Rules are amended through a process that  includes: drafting changes, publishing the draft and soliciting public comment, consideration and approval by the Advisory Committee on Evidence Rules, approval by the Judicial Conferences’ Committee on Rules of Practice and Procedure, approval by the full Judicial Conference, approval by the Supreme Court, and finally Congressional review.
  • At this time, the amendment to Rule 702 has been formally approved by the U.S. Supreme Court and is pending before Congress.
  • Unless Congress acts to disapprove the amendment, the rule will go into effect on December 1, 2023.
  • To learn more about the rulemaking process, click here.
  • Several states are considering new amendments to reform their evidentiary rules, and many more are expected to do so relatively soon.
  • Different states enact such changes in different ways – some through the judiciary and others through legislative action.
  • Learn more about what’s happening in the states here.

Your assistance is key to the effort to reform state evidence rules governing the admission of expert evidence. To get in touch and join the team, please contact us.