In the adversarial legal system of the United States, the existence of two opposing expert witnesses is often taken for granted. With the value of justice so ingrained into American culture, it is no wonder that the idea of a court-appointed expert causes so much controversy.
Rule 706 of the Federal Rules of Evidence is not frequently used in civil litigation but gives judges the right to “appoint expert witnesses of its own selection.” These court-appointed experts then analyze the facts as any other expert would.
Rare as Hens’ Teeth
Both the Federal Circuit Court of Appeals and the First Circuit have stated that Rule 706 should be rarely invoked. In Reilly v. United States the First Circuit wrote:
“We wish to emphasize our strongly-held view that the appointment of a technical advisor must arise out of some cognizable judicial need for specialized skills. Appropriate instances, we suspect, will be hen's-teeth rare.”
The belief that Rule 706 should be rarely utilized was also supported by other courts and legal scholars such as Charles Wright.
Confusing and Conflicting
The Ninth Circuit established in Walker v. American Home Shield Long Term Disability Plan that an independent expert was needed when expert testimony was “confusing and conflicting.”
Confusing and conflicting can be used to describe any case in which experts present contradictory opinions, including many recent and on-going cases. For example, the expert opinions presented in Oracle v. Google easily fell into the category of conflicting. With damages estimates ranging from $6.1 billion to nothing, the judge ultimately appointed an independent damages expert to contribute a neutral opinion.
In a request that the court-appointed expert serve only as a technical advisor to the judge, Google stated, “If the jury is aware that the court’s expert was appointed by the court and is not a representative of the parties, that expert will have a powerful stamp of court approval and objectivity that will lend a disproportionate weight to that expert’s opinions and testimony.”
This is a common concern regarding court-appointed experts. Juries are well aware of the adversarial nature of civil litigation and recognize that experts occasionally serve as advocates instead of neutral bearers of fact. When jurors hear the opinion of an expert that was not selected by either side, they often give more weight to this testimony.
In cases like this, it appears to the jury as if neither side selected the court-appointed expert, when the opposite is more often true. Rule 706(a) allows a judge to “request the parties to submit [expert] nominations” and to later “appoint any expert witnesses agreed upon by the parties.” Therefore, court-appointed experts are frequently chosen by both sides, instead of neither.
This concept was reiterated last year by the Seventh Circuit when it stated in DeKoven v. Plaza Associates that “Judges can assure themselves of the expert’s neutrality by (as in arbitration) asking the parties’ own experts to nominate a third expert to be the court-appointed expert.”
Are They Really Necessary?
Rule 706(d) states that “Nothing in this rule limits the parties in calling expert witnesses of their own selection.” Court-appointed experts are therefore serving as the third expert in a case, adding another opinion instead of replacing two.
Some have advocated that opposing experts inherently balance each other out and a court-appointed expert is unnecessary. When juries are presented with two opposing damages calculations, they often return with a value between the two presented. In such situations, why would a third expert be needed?
Tell us: When should a judge exercise the right to utilize Rule 706?