Perspectives

If you provide testimony as an expert witness, you could soon be facing some new challenges from opposing attorneys regarding the opinions you will be rendering in the courtroom.  Effective January 1, 2012, Arizona joined several other states that have adopted the Federal Rules of Evidence relating to expert witnesses, i.e., the “Daubert”   standard.

Rule 702 and Testifying Experts

With approval of the Petition, the Arizona Supreme Court has adopted conforming changes to several Rules, in particular to one applicable to testifying experts, Rule 702 (Testimony by Expert Witnesses).

Rule 702, as revised, contains the following language:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and,
(d) The expert has reliably applied the principles and methods to the facts of the case.”

Following the new language for Rule 702, the Petition adds a Comment to 2012 Amendment, which states: 

“The 2012 amendment of Rule 702 adopts Federal Rule of Evidence 702, as restyled.  The amendment recognized that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue.  The amendment is not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony, nor is the amendment intended to permit a challenge to the testimony of every expert, preclude the testimony of experience-based experts, or prohibit testimony based on competing methodologies within a field of expertise.  The trial court’s gatekeeping function is not intended to replace the adversary system.  Cross-examination, presentation of contrary evidence, and careful instruction of the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.”

Summary

What Arizona’s Rule 702 now means for testifying experts (not just CPAs, but physicians, engineers and others providing scientific testimony) is that they can expect to be challenged in the courtroom more intensely than ever before (The former rules fell within the “Frye”  standard, which tended to allow far more “expert” opinions in as evidence).  The challenges will not only be from opposing attorneys, but also from judges regarding the testifying expert’s credentials, the sufficiency of facts or data they considered, whether reliable principles and methods were used by them, and whether the principles and methods considered by them have been reliably applied to the facts of the case.  

Testifying experts should consider including language in their written reports that helps stem the Rule 702 questioning they can now expect.

Don Bays, CPA/ABV/CFF, CVA

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