Expert Testimony & Advisory

Why a standard

The bar for evidence was raised. Most “experts” were never built for it.

When Afghan language, culture, or country conditions enter a courtroom, the expert offered is too often someone’s bilingual acquaintance, an advocate with a stake in the outcome, or an academic who has never sat for qualification. That worked, barely, while courts presumed expert testimony admissible. They no longer do. Federal Rule of Evidence 702 was amended effective December 1, 2023: the proponent must now demonstrate to the court, by a preponderance of the evidence, that every admissibility requirement is met — and the opinion itself must reflect a reliable application of principles and methods to the facts.

The amendment does not change the substantive law; it corrects courts that had treated the sufficiency of an expert’s basis as a question of weight rather than admissibility. Since it took effect, federal courts have applied the clarified standard to exclude or limit experts whose proponents could not carry that burden. The same logic governs outside the courtroom: an institution commissioning Afghan-conditions analysis for a consequential decision is running its own gatekeeping — and advisory that cannot state its method, show its sources, or survive a reviewer is opinion wearing a report’s clothing.

So this practice is built backward from scrutiny. The experts are qualified before they are offered. The method exists on paper before the first question is asked. And the work product — declaration, report, or review — is designed for the record it will have to live on.

In practice

Built for the fight it will be in.

Engagements begin where the scrutiny will end. For litigation, that means conflict checks before introductions, qualification files before designation, and work product drafted for the declaration it will become — with a methodology section opposing counsel can read, because transparency about method is the strongest position there is.

For institutional advisory, it means the method and sources travel with the findings, so the reviewer’s first question is already answered on the page. In both, the deliverable is designed to be examined — which is precisely why it holds.