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How FRE 702 Impacts Expert Witnesses in Counterfeiting Trials
How FRE 702 Impacts Expert Witnesses in Counterfeiting Trials
Federal Rule of Evidence (FRE) 702 governs the admissibility of expert testimony in federal court. It requires that expert testimony “help the trier of fact to understand the evidence or to determine a fact in issue.” In other words, expert testimony must be relevant and reliable. FRE 702 impacts how lawyers prepare their expert witnesses for trial, especially in complex cases like counterfeiting.
In counterfeiting cases, expert witnesses are often needed to explain things like how counterfeit goods were manufactured, their quality compared to genuine goods, and how much revenue the defendant obtained from selling them. This technical evidence can get quite complicated, so lawyers need to find qualified experts who can break it down for the jury.
Requirements for Admissibility Under FRE 702
For expert testimony to be admissible under FRE 702, the party offering the testimony must show:
- The expert is qualified by “knowledge, skill, experience, training, or education”
- The testimony is relevant to the case
- The testimony is reliable
- The testimony will “help the trier of fact to understand the evidence or to determine a fact in issue”
Meeting these requirements is critical, because if the expert testimony does not pass muster under FRE 702, the judge can exclude it entirely. This would be devastating for a party relying on an expert to prove their case.
Qualifications of the Expert
The first requirement seems straightforward – the lawyer must show the expert has sufficient qualifications to give expert opinions in the case. But the standard is fairly low. As one court put it, the expert must merely have “better knowledge” than the average juror.[4] Still, the lawyer must lay a foundation for the expert’s knowledge and explain precisely how they are qualified to testify.
In counterfeiting cases, this means establishing the expert has specialized knowledge about the counterfeit goods at issue. For example, an expert might have a background in manufacturing similar products or experience detecting fakes in the same industry. The more niche the expertise, the better.
Relevance of the Testimony
Second, the expert testimony must be relevant to a disputed issue in the case. If it does not relate to any element the party must prove, it will likely be excluded. For example, in a counterfeiting case, expert testimony about how counterfeit labels were printed would be relevant to showing willful infringement. But testimony about problems in an unrelated industry would not.
Lawyers must think carefully about what testimony they need from the expert and how it fits the issues in the case. It can be tempting to have experts testify about peripheral matters, but that testimony may not make it in front of the jury.
Reliability of the Testimony
Third and most importantly, expert testimony must be reliable. This requirement comes from the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, which revolutionized the use of experts in federal courts. Under Daubert, federal judges are “gatekeepers” responsible for keeping out unreliable expert testimony.
There are several factors courts consider in assessing reliability:
- Has the methodology been tested or peer reviewed?
- What are the error rates?
- Has it been generally accepted in the expert community?
- Did the expert reliably apply the methods to the facts?
Lawyers must thoroughly vet their experts to ensure they used reliable principles and methods. Any gaps or flaws could lead to exclusion. And in counterfeiting cases, experts often rely on novel techniques for detecting fakes, so reliability is key.
Recent Changes to FRE 702
FRE 702 was recently amended (effective December 2023) to clarify that:
- The judge must find expert testimony reliable by a “preponderance of evidence”
- The expert must reliably apply their methodology to the facts of the case
These changes give judges more power to scrutinize expert testimony and highlight the need for experts to clearly explain their analysis. The amendments likely won’t revolutionize practice under FRE 702, but they emphasize that lawyers must thoroughly vet their experts before trial.[2]
Preparing Experts to Meet FRE 702 Standards
Given the stringent requirements of FRE 702, lawyers must properly prepare their experts long before trial. The key is communicating expectations under the rule so experts understand what the judge will be looking for. Some best practices include:[3]
- Explaining the legal standards for admissibility in plain English
- Working with experts to ensure their methods are reliable and accepted
- Helping experts clearly describe their credentials, research, and opinions
- Conducting intensive pretrial preparation including mock examinations
Following this approach reduces the odds of key testimony being excluded and allows the expert to educate the judge and jury. And in counterfeiting cases, expert evidence is often the lynchpin of proving infringement and damages.
Common Defenses Regarding Expert Witnesses
Opposing parties have several strategies for attacking expert testimony under FRE 702. Here are some of the most common:
- Motion in Limine – Ask the judge to exclude expert testimony before trial because it does not meet FRE 702 standards
- Voir Dire – Challenge the expert’s qualifications or reliability during an evidentiary hearing
- Cross-Examination – Attempt to undermine the basis for the expert’s opinions at trial
To combat these defenses, lawyers must know their expert’s vulnerabilities and prepare responses. For example, anticipate what methodology could be critiqued on cross-examination. Experts who have extensive trial experience also hold up better under tough questioning.
Conclusion
FRE 702 has major implications for using expert witnesses in federal court. Lawyers must vet their experts thoroughly, ensure testimony meets admissibility standards, and prepare for searing critiques by the opposing party. In complex cases like counterfeiting, experts are invaluable – but only if they survive challenges under FRE 702. Following best practices around qualifying experts, evaluating reliability, and trial preparation helps achieve that goal.