New Jersey’s rules regarding the admissibility and review of expert testimony have remained unchanged since 1991. In this same period, the Federal Rules of Evidence, the Uniform Rules of Evidence, numerous state evidence rules, and our own jurisprudence have all changed to reflect the increased importance and use of expert testimony. The disconnect between the rules on the books and the realities of practice were on full display at the New Jersey Supreme Court’s May 19, 2015 hearing on the Committee on the Rules of Evidence’s latest report.
Prof. David Bernstein of George Mason University, one of the nation’s foremost experts on expert testimony, testified before the court on NJCJI’s behalf. His research reveals that as more and more courts apply Federal Rule 702 rather than its more nebulous predecessors, the case law becomes more consistent and predictable. These are both qualities that the business community values and would like to see more of in New Jersey decisions, so we are urging the court to update New Jersey’s rules to match the federal rules.
Not only is New Jersey out of step with the Federal court system and the states that have adopted the federal rule, our own case law has become confused, allowing judges to apply basically whatever standard they think is appropriate rather than following any sort of general guidelines. David Kott of McCarter & English made this point during his testimony on behalf of the New Jersey Business and Industry Association.
Kott also pointed out that the business community has been waiting for the court to give a definite answer on this issue for over 15 years. Later this summer we will find out if we are destined to wait longer, or if the court will do the right thing and put New Jersey on a path towards greater clarity and consistency in this critically important area of law.