Amended Rule 702’s Unimpeachably Neutral Impact

The Death of Testimonial Overstatement

The proper interpretation for the standard of admissibility under the amended Rule 702 of the Federal Rules of Evidence will hopefully result in an evidentiary change that flies in the face of every hired gun’s essence, as the real impact of the trial court truly being a gatekeeper is that it will shield the jury from the testimonial overstatement salaciously proffered by expert witnesses. This 16^th article of the unimpeachable neutrality series will take a deeper dive into the potential implications surrounding the up-and-coming amendment to Rule 702 and common risks that this amendment may mitigate.

The re-emphasized standard of expert admissibility under the amended Rule 702 of the Federal Rules of Evidence takes aim at the industry of expert guns for hire, as the real impact of the trial court truly being a gatekeeper is that it will shield the jury from the testimonial overstatement salaciously proffered by expert witnesses. Testimonial overstatement from a classically trained expert gun for hire is something like a fib, wrapped inside of a lie, inside a blasphemy. Testimonial overstatement occurs when an expert witness exaggerates their qualifications or the certainty of their opinions to influence the perception of their expertise. This 16^th article of the unimpeachable neutrality series will take a deeper dive into the potential implications surrounding the up-and-coming amendment to Rule 702 and common risks that this amendment may mitigate.

Overstated Statements

I remember the first time a judge left the gate open. The jury sat in awe as the opposing expert walked into the courtroom, with his perfectly tied bow tie and suit replete with starch. He was twice my age and thrice my senior in the world of expert witnessing. Faced with an insurmountable set of bad facts and an even worse set of marching orders, this gun for hire began pontificating the most beautifully illogical logic and profoundly unreasonable reasoning that I had ever heard. I had spent weeks assisting my client with drafting the motion to exclude this shady shaman’s “expert” testimony. Despite noting every unreliably applied methodology, asinine assumption, and fundamentally flawed falsehood underpinning the substance of the opposing expert’s opinions, the motion to exclude was rendered less than moot. As a result, we had no choice but to watch the rebuttal expert effortlessly explain his unscrupulous positions to an underqualified jury as if reciting his ABCs in front of a class of first graders. Admittedly, this disingenuous dissertation sounded even better in person than it ever read on paper. The dawning of amended Rule 702 may put these dark days behind us, as many a jury have been misled by an overzealous expert who presents their opinion as the only opinion and themselves as an authority in a field broader than their actual expertise. This misrepresentation can mislead the court and the jury by making them believe the witness is more knowledgeable than they are in areas beyond their true specialty.

Unbiased Bias

The amended Rule 702 is likely to reduce the occurrence of overstated expert testimony that aligns more closely with the interests of the party that hired them, rather than offering an impartial, unbiased opinion. In certain instances, expert witnesses may offer testimony that aligns more closely with the interests of the party that retained them, rather than providing an impartial, unbiased opinion. This bias can lead to an overstatement of the strength of their conclusions or a selective presentation of evidence. Expert witnesses may offer testimony that aligns more closely with the interests of the party that retained them, rather than providing an impartial, unbiased opinion. This bias can lead to an exaggeration of the robustness of their conclusions or a selective presentation of evidence that has swayed many a jury.

Uncertain Certainty

Expert witnesses will likely have a far more difficult time overstating the certainty of their opinions or the accuracy of their methodologies. Expert witnesses may also inflate the certainty surrounding their opinions or the precision of their methodologies. This could encompass asserting that their conclusions are unquestionably definitive or that their methods are flawless, even when there may exist some level of uncertainty or limitations in their analysis. This can involve claiming that their conclusions are absolutely definitive or that their methods are infallible when, in reality, there may be some uncertainty or limitations to their analysis. Expert witnesses may also inflate the certainty surrounding their opinions or the precision of their methodologies. This could encompass asserting that their conclusions are unquestionably definitive or that their methods are flawless, even when there may exist some level of uncertainty or limitations in their analysis.

Unfounded Foundation

The amendment to Rule 702 may minimize the jury impact where an expert witness overstates their capacity to provide unequivocal answers to intricate questions when the available data or research does not substantiate such claims. Testimonial overstatement can also involve making claims or drawing conclusions without a proper foundation or sufficient evidence. An expert witness may overstate their ability to provide definitive answers to complex questions when the available data or research does not support such claims.

Unqualified Qualifications

An expert witness might amplify their qualifications by asserting they possess more experience, education, or specialized training than they genuinely possess. For instance, they could make false claims about holding advanced degrees, boasting decades of experience, or possessing unique certifications to bolster their credibility.

The handling of evidentiary reliability by the trial court in advance under the amended Rule 702 aims to curb such testimonial overstatement; however, legal professionals and judges bear the responsibility of meticulously scrutinizing the qualifications and testimony of expert witnesses in a proactive manner for this change to be effective. Overstated expert testimony has had significant consequences in legal proceedings, leading to erroneous verdicts and unjustly forced settlements. The examples of overstated expert testimony have wielded significant influence in legal proceedings for far too long.

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C. Zachary Meyers, CPA, CVA, has been retained in over 2,600 cases as a testifying, consulting, or joint/court appointed expert. He has testified and been qualified as an expert specific to civil, marital, and criminal litigation. Mr. Meyers was elected to the NACVA Standards Board in 2016, appointed Vice-Chair in 2017, elected Chair in 2018, and in 2019, was re-elected as Chair, which promulgates professional standards for financial professionals, analysts, and experts. Mr. Meyers was appointed as NACVA Standards Board liaison representative for the Global Association of Certified Valuators and Analysts (GACVA) Advisory Council in 2020, which liaises with NACVA’s international chapters in Africa, Canada, Europe, India, Taiwan, and Southeast Asia. In 2021, Mr. Meyers was elected to the Business Valuation Resource Panel of The Appraisal Foundation (TAF), whose purpose is preserving and improving the public trust in valuation.

Mr. Meyers can be contacted at (304) 690-2619 or by e-mail to czmcpacva@CZMeyers.com.