Sophia Cope, Ripe for Revision: A Critique of Federal Rule of Evidence 706 and the Use of Court-Appointed Experts, 39 Gonz. L. Rev. 163 (2004).[PDF] [Westlaw] [LexisNexis]
Federal Rule of Evidence 706, which authorizes district courts to appoint their own expert witnesses, is ripe for revision. Judge Learned Hand had the foresight in 1901 to write: “No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best.” A century of adjudication and academic pontification has sought to answer the question of how trial courts, including judges and juries, can best digest and apply scientific and technical evidence to facilitate the achievement of just outcomes in complex cases. While the principle answer has been the party expert witness, the “court-appointed expert” – who may or may not testify as a witness – emerged as a second answer. The current court-appointed expert rules, however, are fraught with confusion and inconsistencies. Thus, the time has come to draft a new Federal Rule of Evidence 706 that provides district courts with proper guidance in the use of court-appointed experts.
The expert witness is – and will likely continue to be – a key element of the adversarial process. Nevertheless, because expert witnesses are retained by the parties, the “battle of [the] experts” has elicited criticism. For example, former Second Circuit Judge Jerome Frank attacked the adversarial system stating that “the partisanship of the opposing lawyers [frequently] blocks the uncovering of vital evidence or … distorts it.” Additionally, judges surveyed by the Federal Judicial Center cited party experts who “abandon objectivity and become advocates for the side that hired them” as being the most frequent problem they encounter with expert testimony in civil cases. The idea of the court-appointed expert evolved to address this criticism. Judges, therefore, often appoint experts “when the parties’ experts offer directly conflicting testimony on topics that [are] beyond the comprehension of the court.”… Read More