Since its enactment in 1975, Rule 702 of the Federal Rules of Evidence has sought to redirect standards for the admission of expert testimony from a focus on “general acceptance in the profession” to one that places a greater emphasis on whether it is “scientifically valid and properly…applied to the facts at issue.” Amendments enacted in 2000 and 2011 have sought to clarify how judges are to assess the reliability of proffered testimony, either through the addition of factors to be considered (e.g., the Daubert standard, which also charged judges to serve as gatekeepers to exclude unreliable expert testimony) or by making the rule more easily understood and consistently applied.

As commercial damages consultants, one question we are always asked when meeting with a potential new client is “What are your hourly billing rates?” It is certainly a reasonable inquiry, and we dutifully provide the answer. In many instances, a “go/no go” decision may be reached right then and there, as the client may only view the choice of an expert as a litigation accessory or option. However, such thinking does not allow for an assessment of the benefit side of what is really a value proposition. In this article, we discuss avenues of inquiry that can be explored to identify factors or traits that, along with the cost of retention, can yield a more informed decision.